United Kingdom: Controversial review of strike laws fails to deliver

The final report of an independent review commissioned by the Coalition Government of the law governing industrial disputes was published in October 2014, but made no recommendations for reform. The barrister appointed to head the review, Bruce Carr, indicated that its work had been hampered by its politicised context and a lack of practitioner engagement. 

Background

The origins of the Carr review go back to a high-profile industrial dispute in October 2013 that affected the Grangemouth petrochemicals plant in Scotland. The dispute was notable for the controversial tactics used by the parties involved – the site’s owners, Swiss-based company Ineos, and the trade union Unite. At one point, Ineos threatened permanent closure of the plant unless the workforce accepted significant changes to their working conditions. Unite faced heavy criticism from government ministers and the media for organising protests outside the homes of senior Ineos executives, a tactic designed to provide the union with leverage during the dispute.

In November 2013, Prime Minister David Cameron announced that there would be an independent review led by barrister Bruce Carr QC of the law relating to ‘inappropriate or intimidatory’ tactics used by Unite during the dispute.  This prompted union criticism that the review was a ‘union-bashing’ exercise initiated by the Conservatives for political reasons. Ministers in the Conservative–Liberal Democrat coalition government subsequently sought to present the review as a more balanced exercise, covering questionable industrial practices by both employers and unions.

According to the eventual report of the Carr review, the intention at that stage had been for the review to be a ‘partnership exercise’ conducted by a panel of three, including representatives from the Confederation of British Industry (CBI) and the Trades Union Congress (TUC),  with a remit that included broader industrial relations issues. However, the TUC reportedly declined to take a formal role in the review, which proceeded under Carr alone, supported by a secretariat of government officials, and with a narrower focus.

Aims and shortcomings of the review

The terms of reference of the review, published on 4 April 2014, were to provide an assessment of the alleged use of extreme tactics in industrial disputes, including so-called ‘leverage‘ tactics. It was also asked to look at the effectiveness of the existing legal framework ‘to prevent inappropriate or intimidatory actions in trade disputes’ and to ‘make proposals and recommendations for change’.

As the review progressed and sought input from interested parties, the shortcomings of the review became apparent to Carr. He said the review was ‘largely one-sided in that it [came] overwhelmingly from employers or those acting on [their] behalf’. This reflected trade union suspicion of and resentment at the review process, and of the evidence submitted to it.

Union input was limited. A letter from the TUC reiterated its view that the review was a ‘headline grabbing party political stunt’, while similar letters came from the Scottish TUC and the construction union Ucatt. Submissions also came from two non-TUC affiliated unions.

The TUC said it was not aware of any trade union using ‘extreme tactics’ in any industrial dispute and argued that ‘the current legal framework governing the conduct of trade unions during trade disputes is among the toughest in any democratic state’. It added that public order legislation, also very stringent in the UK, governed any related activity outside the workplace.

There were more submissions from employers and organisations, but these were not ’in the numbers anticipated’ and the review reported that they rarely provided ‘primary evidence’ on the issues being examined.

Significantly, the Advisory, Conciliation and Arbitration Service (Acas) declined to make a substantive contribution to the review, stating that, given its conciliation role, it would ’never comment publicly on the tactics used by employers or unions in the prosecution of disputes’.

The inability of the review to secure an adequate response was seen by Carr himself as the result of perceptions that the review was not ‘independent’ and that its work was ‘politicised’ by the proximity of the May 2015 general election.

In a further blow to the review process, on 18 July 2014, the Conservative Party pre-empted the outcome of the Carr review by announcing proposals for introducing a range of anti-strike measures should it win the election, including toughening the law relating to picketing – a subject falling within the remit of the review.

On 5 August 2104, Carr issued a statement explaining he felt unable to make proposals or recommendations for change 'due to the increasingly political environment within which [he] was operating, coupled with the lack of a significant enough body of evidence to support any recommendations for change'.

As a result of these concerns, government ministers agreed that he would instead produce ‘a scaled-down report’.

Report findings

The report of the Carr review (1.7 MB PDF) was published on 15 October 2014. Based on the limited evidence provided, the report reviews the conduct of the parties ato a number of recent industrial disputes, including those at the Grangemouth petrochemical plant, London Underground in 2014 and the Lindsey Oil Refinery dispute in 2009.

The review found a variety of tactics had been used in some disputes as part of organised ‘leverage’ campaigns by unions. The tactics identified fell into certain ‘themes’ including:

  • alleged inappropriate or intimidatory behaviour on picket lines;
  • protests organised by unions in furtherance of disputes;
  • alleged victimisation or harassment of non-striking workers;
  • alleged victimisation or harassment of senior managers;
  • alleged disruption of business and contingency plans and damage to property;
  • trade union communication with third parties to influence the outcome of disputes;
  • ‘wildcat’ strike action;
  • ‘extreme’ tactics alleged to have been used by employers.

The report states that:

Given the lack of evidence from trade unions, it would be wrong to assume that any conclusion had been reached to the effect that these themes accurately represent the realities of how industrial disputes are currently being conducted.

The report then summarises the existing legal framework governing each of these themes and the principal calls for changes that were made by contributors to the review. Suggestions included:

  • strengthening the guidelines in the current code of practice on picketing;
  • banning protests at the private addresses of individuals involved in industrial disputes;
  • giving more legal protection against intimidation to non-striking workers and senior manager;
  • increasing the current financial limits on trade unions’ liability for unlawful action during disputes.

Again, the report stresses that it offers no comment on the effectiveness of the legal framework nor any endorsement of proposals for its amendment.

Commentary

The TUC dismissed the report as ‘a party-political stunt that has failed to come off, with the taxpayer left to pick up the bill’, while the CBI made no public comment.

Given the limitations of the ill-fated review process, the report cannot be regarded as providing any reliable basis for developing proposals to change the law governing behaviour during industrial disputes. In any event, the outcome of the review was made largely irrelevant by the prior publication of the Conservative Party’s own plans to change the law relating to strikes and picketing.

The Conservatives reiterated their intention to introduce new restrictions on strikes in January 2015 with the announcement of radical plans to make industrial action in public services lawful only if supported by at least 40% of all union members eligible to vote in a strike ballot. The plans feature in the Conservative manifesto for the May 2015 general election.

The Labour Party‘s industrial relations policy is less clear, but as has so often been the case in UK general elections since the 1960s, the outcome of the May 2015 election will have highly significant implications for the future direction of UK industrial relations legislation. 

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