Feb 1 Lec Reading Miner Strike

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The legal legacy of the miner’s strike

The legal context

This short piece presents a commentary on uk employment

law over the last twenty years, and the key legislation triggered

by the miners’ strike. The legal position regarding unions

had been broadly stable from the early part of the twentieth

century until the 1970s. The 1970s had seen the Conser-

vatives’ attempts at intervention with the 1971 Industrial

Relations Act, followed by the legislation of the Labour

government in 1974 and 1976 which still forms the overall

structure of the current legal position.Broadly, up until the Tory legislation from 1980 onwards,

unions had legal status and protection against being sued.

They could take industrial action without being sued,

provided it was ‘in consequence or furtherance of a trade

dispute’.

The 1979 Conservative government had, by the time of

the miners’ strike, already begun a legislative attack on

workers and the unions. The government had reduced unfair

dismissal protection, and removed the fair wages resolution

and statutory recognition. The main attack, though, was on

industrial action.

The Conservatives had already, in the 1980 Employment

Act, prevented lawful picketing away from one’s own placeof work, outlawed secondary action, outlawed ‘political’

strikes, and increased employers’ ability to dismiss strikers.

Unions could be sued for all these ‘breaches’ because

legislation in 1982 removed trade union immunity and, while

it set limits to the level of damages, those limits did not

apply to fines or sequestration. The 1982 Employment Act

also made unions responsible for acts authorised by the

The legal legacy of theminers’ strikeStephen Cavalier

This article explores the reaction of Parliament and

the courts to the miners’ strike, and looks at the impact

on the laws aff

ecting trade unions and workers.



Capital & Class 87 66

Executive Committee, or by persons empowered under the

rules, by the general secretary, or by any official or committee

to whom an employed official reports. During the year prior

to the miners’ strike, the Conservative government had

published a Green Paper in January 1983. It proposed secret

ballots for trade union elections, ballots before strikes, and a

requirement for repeated renewal of political fund ballots. This

Green Paper formed the basis of the 1984Trade Union Act.

The aftermath

In some respects, the strike was untouched by Tory anti-

union legislation. Each num area was a separate union in

law, and the num’s position was that these were strikes at

area level, which were approved but not initiated by the

national union, and that therefore there was no need for a

national ballot (which would otherwise have been required

by rule, had there been a national strike).

The Trade Union Act 1984 had not come into force by

the time of the strike; had it done so, the provisions on strike

ballots and elections might have had a profound eff ect on

the strike itself and its legal status. However, the Employment

Act 1988 that followed was undoubtedly influenced by events

in the strike. It formed part of the Conservatives’ 1987

election manifesto and the 1987Green Paper, which declared

that ‘the right of the individual to go to work, despite a call

to take industrial action, is an essential freedom.’ It had the

following key features.

The Act removed immunity, and gave employers the right

to sue if no strike ballot had been conducted. It also gave

members the right to sue the union. This might easily be a

legacy of cases brought against the num regarding their rules

during the strike. The courts were given powers to grant

injunctions to employers restraining further action, which

also ordered unions to ensure that no member engaged in

any subsequent conduct by virtue of original improperinducements. Finally, a ‘health warning’ was added to the

ballot paper, which read, ‘If you take part in a strike or

other industrial action, you are in breach of your contract of

employment’.

Alongside this was the legal incursion into union rule-

books, which allowed for courts to take action against

‘unjustifiable discipline’—the so-called ‘scabs’ charter’. It



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was made unlawful to discipline members for failure to take

part in strike or industrial action, or for opposing or not

supporting a strike (whether by members of that union or

any other); for failing to contravene a requirement by an

employer (for example, handling work otherwise done by

strikers); and for asserting (or claiming) that a union official

has broken the law or the union rules and assisting others

to do the same. Unless the union could show that the act

was something for which a person would have been

disciplined irrespective of whether it fell within the definition

of unjustifiable discipline; or that the allegation, etc., was

made in the belief it was false and/or in bad faith, a union

would face a successful claim. Discipline is also defined

very widely, and it includes expulsion, fines, depriving of

benefits, services or facilities, encouraging other unions not

to accept the person into membership, or any other

detriment.

As well as intervention in the rules, there was also

intervention in union finances. The right to inspect

accounting records was clearly motivated by cases against

unions regarding the use of funds, particularly in the miners’

strike. This was extended to the right to inspect union branch

records, and to be accompanied by an accountant (implied

in Taylor v num (Derbyshire Area) (1985)). It was also made

unlawful to use trade union funds for indemnifying unlawful

conduct, i.e. to pay (directly or indirectly) fines for off ences

under trade union legislation, or for contempt of court, or

to indemnify against such off ences. This, again, arose out of

a case in the strike (Thomas v num (South Wales Area)). In

that case, the court said there was nothing unlawful, where

rules gave the power, in giving financial assistance with the

legal expenses of an arrested member, or with the penalty

imposed. However, a union was not permitted to grant a

blanket indemnity to pay for subsequent fines for future

off ences. The union could consider cases retrospectively on

an ad hoc basis. The Tory government thought this was too

lax, and so explicitly prevented unions from paying finesand made explicit the recovery of sums from the individual,

thus overriding the provisions of any union rule-book.

Indeed, members were given a range of options for

preventing union trustees from using funds to support

disputes.

Further legislation was specifically directed at the num

in response to the strike. The num Executive had changed




its rules to deprive the president and general secretary of a

vote on the Executive (a response to the previous Act), and

they were not covered by the requirement for elections. The

1988 Act changed that and went further, requiring elections

for the president (or equivalent); the general secretary; and

all those who may attend and speak at the Executive (unless

they are present purely to give technical advice). All trade

union elections were required to be fully postal, and subject

to an independent scrutineer. The Commissioner for Rights

of Trade Union Members (crotum) was put in a statutory

position to assist and finance members bringing legal claims

against trade unions, at a time when the government was

cutting back on Legal Aid. In spite of an original estimated

budget of £1.2 million per year, the crotum was relatively

little used.

The courts

Alongside this raft of legislation were the actions of the courts.

From 1982 onwards, there was an increased number of cases

against unions, especially those relating to industrial action,

and injunctions were readily granted to stop strikes. This

followed on from num members bringing claims against

area unions, alleging breach of rules and claiming injunctions

that were granted in some areas, notably North Wales, the

North West, the Midlands, Durham and Durham Mechanics

[a separate num ‘area’]. The num at the national level was

brought into proceedings, and was ultimately ordered not

to treat the strike as official. This led to miners who continued

working bringing claims against individual members of

national and area Executive Committees. Further injunctions

prevented the union from urging members to strike and not

to cross picket lines, from treating the strike as official, and

also required the election of new officials in the Yorkshire

area. The num president, Arthur Scargill, declared that the

union would not accept these rulings, and the court grantedleave for contempt proceedings, which were served on him

at the Labour party conference.

Further legal actions concerned picketing, and the ncb

at the outset obtained injunctions against miners picketing

at pits other than their own places of work. Transport

companies obtained injunctions against the num (South Wales

Area) based upon interference with trade and unlawful



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picketing. The union’s defiance of this led to contempt

proceedings and sequestration of the South Wales Area’s

assets. There was also action by miners who worked during

the strike, who were seeking court injunctions to limit the

pickets to six per gate because of ‘unreasonable harassment’,

which was the same limit as that in the Code of Practice

(Thomas v num (South Wales)). The judge in the case created

a new tort (civil wrong) of unreasonable harassment, and

granted an injunction limiting pickets to numbers not

exceeding six.

The courts also did their best to deprive the num of any

funds. In Taylor v num (Derbyshire Area), the court granted

a declaration that the strike was unlawful and that use of

funds was therefore unlawful, but refused to order a payment

of the £1.7 million cost of the strike. In Taylor and Foulstone

v num (Yorkshire Area), in October 1984, the court found

the national num in breach of orders regarding the strike

not being official. It levied a fine of £200,000 on the union,

which remained unpaid. It also levied a fine of £1,000 on

Arthur Scargill, which was paid by an anonymous donor

without his knowledge. The court said that the union was in

contempt of court, and ordered sequestration of the union’s

entire assets.

In Clarke v Heathfield, claims were made by members

against union trustees, alleging that the union had misapplied

funds. The High Court ordered the union’s trustees to

repatriate the funds from abroad to the sequestrators. The

trustees refused to obey the order of the court, and persisted

in treating the strike as official. The court ordered that they

be removed as trustees and a Receiver of national funds was

appointed. The Receivers had the power to issue legal

proceedings in the name of the union, and to collect and

manage assets. This led to two sets of accountants running

the union financially, with sequestration running beyond the

strike, with costs exceeding £1 million. On the other hand,

the courts prevented attempts by the num to withhold or

remove funds from those who sought to secede and form abreakaway union, and the denial of an injunction positively

assisted the establishment of the Union of Democratic

Mineworkers (udm).

As we have seen, the union rule-book was challenged

extensively, leading to an inability to discipline working

miners because of the court ruling that the strike was unlawful

(Taylor v num (Derbyshire)). In response, the num sought




at conference to introduce a rule to allow discipline for acting

‘contrary to the interests of the union’. However, the court

ordered that the conference be postponed and that the new

rule was not to be discussed, although it went ahead and was

passed by a large majority. Contempt proceedings then led

to a declaration that the rule was void, and an injunction

restrained the union from acting on it.

In parallel with these attacks on the union were actions

to prevent other unions making contributions to strike funds,

and the criminal cases against individual miners. More than

10,000 miners were ar rested in England and Wales; of these,

many were not convicted or had charges withdrawn, and 65

per cent of those charged were charged with non-violent

off ences. Magistrates also used bail conditions politically in

order to stop miners from picketing.

What remains

In eff ect, the court decisions made during the strike and the

legislation following it remain largely intact. The ineff ective

crotum has disappeared, and unions have been supported

financially through the withdrawal of restrictions on the

check-off system. Strike ballots, postal ballots for elections,

the inspection of rule-books and accounts, and the restrictions

on disciplining members are now firmly embedded in

employment law.

Documents

Feb 1 Lec Reading Miner Strike