The Right to Strike and Democracy at Work

Ruth Dukes, University of Glasgow and Wolfgang Streeck, Max Planck Institute for the Study of Societies, Germany

In recent months, trade unions and industrial action have been in the news in the UK almost daily. Twelve years of austerity followed by the covid crisis, fuel supply crisis and so-called cost of living crisis have resulted in a strike wave of a magnitude unseen in this country for several decades. Railway workers, postal workers, teachers, nurses, ambulance drivers, university staff, even Amazon warehouse workers, have all been out on strike. On 1 February, a co-ordinated day of action is planned – the closest unions can lawfully get these days to a general strike – with an estimated half a million workers set to take part. All too late, newspapers, tv and radio stations have realised that they lack correspondents and commentators with the requisite expertise to speak or write sensibly about the latest developments. ‘Do you not know how a picket line works?’ asked Mick Lynch, General Secretary of RMT, of Kay Burley during an interview for Sky News back in June – the interviewer apparently unaware that the days of mass pickets and picket line skirmishes are long gone, largely because of repressive changes to the law introduced in the 1980s. 

While the Chancellor of the Exchequer expresses concern at the labour shortages that have arisen in the wake of Brexit and covid, and emphasises his commitment to helping people get back to work, as well as helping those already in work to ‘raise their incomes, progress in work, and become financially independent’, the Government has put little effort into facilitating settlement of the disputes in the public sector. Instead, it is apparently attempting to stifle the strikes by restricting yet further the already limited rights of UK workers and trade unions to take lawful industrial action. In July 2022, the Johnson Government ended a ban on employment agencies supplying workers to temporarily replace striking workers that had been in force since 1976. At the same time, it increased the maximum damages that courts can award against a union in the event that strike action is found to be unlawful, from an upper limit of £250,000 to one of £1 million. In January of this year, it introduced a bill to the House of Commons, which seeks to secure the provision of services to service-users during industrial action by giving employers new powers to require named workers to work rather than take part in the strike. The bill has drawn searing criticism from scholarstrade unionists and political commentators alike and seems more likely to result in an exacerbation of industrial strife than its resolution. 

That a Conservative Government should react in this way to a strike wave is, of course, hardly surprising. Whoever the leader of the Party in recent decades, and whatever the content of the manifesto on which it was elected to power, Conservative governments have been quite consistent in their characterisation of industrial action as an unwelcome, anti-democratic disruption to production and service-provision, benefitting the few to the cost of the many.  

In our recent book, Democracy at Work: Contract Status and Post-Industrial Justice, we argued, to the contrary, that the right to strike is an essential cornerstone of an equitable labour market and workplace regime. To this effect we quoted a landmark House of Lords decision of 1941, according to which ‘the rights of the employer are conditioned by the rights of the men to give or withhold their services’. Going on strike is an indispensable way for workers as an ultima ratio to vent severe grievances and protest what they feel to be a fundamental injustice. As a rule, workers do not strike frivolously, not least because the losses in pay and benefits they suffer during a strike are hardly ever fully recovered in the inevitably ensuing compromise. In fact, in the normal course of things, the mere possibility that workers might go on strike if their sense of justice is deeply violated can make employers and governments listen to them, even if they would otherwise see no reason to do so. The right of workers to go on strike also contributes to a more equitable balance of power between workers and employers that enables meaningful collective bargaining on wages and conditions, potentially resulting in more stable work relations. Where collective bargaining is both effective and widespread, it can lend support to stable political institutions and processes, functioning as a ‘second tier of government’, with primary responsibility for effecting a redistribution of incomes and other elements of class compromise. Trade unions can figure as political as well as industrial bodies, serving – together with churches, political parties and other bodies – a vital intermediary function between society and politics, not only giving necessary substance to the powerful but abstract concept of ‘the people’, but also functioning as collective political actors capable of effectively demanding social justice. 

In an article in the Summer issue of the Journal of Law and Society (Vol 50, Issue 2, 2023), we address the question of ‘Labour Law After Neoliberalism?’, and the possibility that neoliberal approaches to labour law might be being superseded in some jurisdictions by a novel ‘right-wing populist’ approach. We begin by developing ideal-typical definitions of each of these approaches and proceed to an empirical investigation of three governments widely understood to be right-wing populist: the Trump administration in the US, the Law and Justice Government led by Jarosław Kaczyński in Poland and the Conservative Government during the Prime Ministership of Boris Johnson. While we note some important differences between what we might tentatively label neoliberal labour law and right-wing populist labour law, we also emphasise an important continuity between the two, namely, hostility to autonomous trade unions and free collective bargaining. Like neoliberalism, right-wing populism denies the need for and indeed the legitimacy of intermediary institutions, especially in the regulation of class relations. In order to make capitalism both safe and governable, it instead promises a strong state as a patron protector for the nation as a whole: for all citizens alike irrespective of class. In practice, however, promises to improve the lot of working people – to be their champion in the White House (Trump); even to be the ‘Workers’ Party’ (Grant Shapps) – mostly prove to be empty. There is a fundamental contradiction at the heart of right-wing populism: it claims to champion workers’ interests while at the same time it makes every effort to silence the voice of worker representatives, in the economic and the political spheres. Without a counterweight in the wage relations system, governments are helplessly exposed to the lobbying efforts of capital.

In the final part of our article, we address the question of ‘labour law after neoliberalism’ from a normative perspective, considering what steps ought to be taken by a government intent on addressing class inequalities and restoring the kind of rights that postwar democracies once conferred upon workers understood to be industrial citizens. In this sense, we suggest, engagement with the question of labour law after neoliberalism is a matter of real urgency. Historically, trade unions were not only instrumental in creating more equal societies, by improving the wages and conditions of workers, they also played a key role in the construction and maintenance of our democracies. Today, trade unions are greatly weakened and democracy is under threat. The defence and survival of the latter may depend on the revival of the former as an economic and political force.

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