The legal legacy of the miners' strike.

This article explores the reaction of Parliament and the courts to the miners' strike, and looks at the impact on the laws affecting trade unions and workers.

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 Conservatives' 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 place of 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 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 fired ballots. This Green Paper formed the basis of the 1984 Trade Union Act.

The aftermath

In some respects, the strike was untouched by Tory antiunion 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 effect 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 1987 Green 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 improper inducements. 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 rulebooks, which allowed for courts to take action against 'unjustifiable discipline'--the so-called 'scabs' charter'. It 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 offences under trade union legislation, or for contempt of court, or to indemnify against such offences. 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 offences. 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 fines and 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 [pounds sterling] 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 NorthWest, 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 sum president, Arthur Scargill, declared that the union would not accept these rulings, and the court granted leave for contempt proceedings, which were served on him at the Labour party conference.

Further legal actions concerned picketing, and the NOB at the outset obtained injunctions against miners picketing at pits other than their own places of work. Transport companies obtained injunctions against the NUM (SouthWales Area) based upon interference with trade and unlawful 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 (SouthWales)). 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 [pounds sterling] 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 [pounds sterling] on the union, which remained unpaid. It also levied a fine of 1,000 [pounds sterling] 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 [pounds sterling]. On the other hand, the courts prevented attempts by the NUM to withhold or remove funds from those who sought to secede and form a breakaway 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 arrested 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 offences. Magistrates also used bail conditions politically in order to stop miners from picketing.

What remains

In effect, the court decisions made during the strike and the legislation following it remain largely intact. The ineffective 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.