Labour law lead could back illegal strike

Shadow justice secretary Richard Burgon won’t say whether he backs unlawful action

Richard Burgon MP

Labour’s spokesman on law and the justice system has refused to say whether or not he would support an illegal strike.

Shadow justice secretary Richard Burgon, a non-practising solicitor, was grilled by veteran Radio 4 presenter John Humphrys this morning about the threat of strikes by Unite. The mega-union’s leader, Len McCluskey, says that he could be willing to strike over caps on public sector pay even without reaching the 50% turnout required for a valid vote.

Asked whether he would support this, Burgon first tried to turn the tables on the government:

I think the real issue here is the only lawbreakers there have been when it comes to worker-employer relations are actually the government. It was on the 26th of July that the Supreme Court decided that the Ministry of Justice, of all things, have been operating unlawfully with their employment tribunal fees.

Humphrys was having none of it:

I’m asking you a completely different question though, aren’t I, I’m asking you whether you would support Unite breaking the law?

Burgon, a former employment lawyer, wanted to talk about the pay cap. But Humphrys cut in again:

What I’m asking you is a very specific question, and it really is terribly important isn’t it, because you are a senior figure in the opposition — shadow secretary of state for justice, shadow lord chancellor. I’m asking you whether if Unite were to go on strike, breaking the law, knowingly break the law, as Len McCluskey has just posited, would you support them?

“These are complete hypotheticals,” Burgon responded.

Again, Humphrys went on the attack: “No they’re not, because Len McCluskey has raised it. If it were a hypothetical Len McCluskey would have said so himself. He answered a direct question from Ross Hawkins directly and said yes, he would consider going on strike even if it meant breaking the law. I’m asking you for third time whether you would accept that yourself.”

Burgon went on to talk about the importance of voting in strike ballots and the repeal of the Trade Union Act. He said:

There isn’t any illegal strike action taking place… I think the real issue is, rather than talking about one line from a speech or interview from a general secretary of a trade union, we should be talking about the reality faced by hundreds of thousands of your listeners… these hardworking people are faced with a situation where they’re so desperate that they’re considering strike action.

Lawyers and political opponents were unimpressed with Burgon’s performance:

But colleagues and supporters didn’t rate the presenter’s interview style.

Burgon, an English Literature graduate, qualified as a solicitor in 2006 and worked for over a decade for trade union firm Thompsons. He has a reputation as one of the biggest music fans in the House of Commons, and was interviewed recently by Vice about his love of heavy metal.

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37 Comments

Anonymous

I thought it was secondary picketing that was illegal.

There is no such thing as an ‘illegal strike’ as any person can choose to withdraw their labour at will. Anything else would be tantamount to slavery, surely?

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Corbyn. Symphathiser

The government recently amended the law such that any strike action must have a minimum of 50% turnout in the vote for it to be considered a valid strike.

While anyone can withdraw their labour at will, at an individual level this is a total waste of time – that’s why unions exist, as workers have stronger negotiating positions working together than they do apart.

I do wonder, though, why the politicians who are so keen to insist that workers must meet a certain turnout threshold are reluctant to make a minimum turnout for elections to parliament. One would imagine that they would follow the logic that if fewer than 50% of their constituents voted, as often happens in the vast majority of by-elections (52/68, if the numbers (and my counting) at http://www.ukpolitical.info/by-election-turnout.htm can be believed) that their own elections to parliament must be illegitimate.

Funnily enough, I’ve not heard of any bills be proposed to remedy this issue.

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Not Amused

This is a website for lawyers and aspirant lawyers. Any individual who advocates or incites others to break the law needs to think very carefully about what they are doing.

I am very happy for people to hold differing political view points. I welcome and encourage diversity of opinion. But you are either a decent and law abiding person who upholds the rule of law – or you aren’t.

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...

Right. It is not a criminal offence for anyone to strike or for a union to organise a strike without having held a proper ballot. An employer could seek a court order to restrain a union from inciting people to strike if a proper ballot has not been held, and if such an order has been made then obviously issues of contempt arise.

But it is always open to individuals to withdraw their labour, whether individually or collectively as a group. In that situation they are taking a risk with their employment since their industrial action is not “protected”, but again no criminal offence is committed.

So enough with the law and order bollocks. Corbyn Sympathiser as well as any other lawyer is free to talk til his heart’s content about whether public sector workers should strike even absent an official ballot by the union. He’s not inciting anyone to break the law. Also worth noting that Corbyn Sympathiser didn’t incite anyone in his post, but rather just commented on the injustice of a law requiring a minimum turnout.

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Not Amused

I was glad to hear Paul Blomfield MP, one of Labour’s shadow Brexit ministers agree with me.

Either you are law abiding, or you aren’t. It really is that simple.

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What do you mean by “law abiding”? What criminal offence are you suggesting would be committed? An “illegal” strike is simply one that is not protected. The conduct of participants in an “illegal” strike is no more “illegal” than any other contract breaker. The word “illegal” in the context of strike action is misleading and deliberately emotive.

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Corbyn. Symphathiser

Part of Not Amused’s schtick is to ignore posts which point our that they have missed the point, or that they are being deliberately misleading, so I’d not hold out hope for much of a response here, unfortunately.

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Corbyn. Symphathiser

Let me apologise for a misuse of wording in my above post: “schtick” implies that NA is a gimmick poster, as Trumpenkrieg is, which I do not believe to be the case. Perhaps “M.O.” might be more appropriate – perhaps there is another word, but I’m sorry to have implied that NA is being insincere.

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Not Amused

I don’t consider the argument set out above to be worthy of reply. It is extremely poor. Schtick or no.

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Anonymous

It is for a particular level of intelligence and experience…you would be good working in a job centre. On a different plane is the notion of just laws and unjust laws. At the extremes it was legal for Kim jong to execute his uncles and rosa parks broke the law when she refused to give up her seat in the coloured section of a bus for a white man.
Gandhi deliberately broke a number of laws too.
These people would not be suited to working in a job centre.

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union basher

On the turnout point, has anyone asked the heads of the various major unions who were often elected on just a 10-15% turnout of their members why they consider their position as justified when they argue that the government has no mandate based on a 65% (or whatever it was) general election turnout?

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Anonymous

Why, yes. How dare he hold opposition MPs to account when they support the illegal activities of their union paymasters. How very dare he.

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Anonymous

Again, people need to give some thought to what “illegal” means in this context. Strike action always used to be “illegal”, in that going on strike constituted a breach of an employment contract and you could be sacked for it. The law now protects strikers (against dismissal) provided that their union jumps through certain hoops before industrial action is taken. Unprotected strike action is only “illegal” in the same sense it has always been: i.e. it constitutes a breach of contract.

It’s a clever linguistic sleight of hand to describe unprotected strike action as “illegal” because it makes people associate wildcat strike action in their mind with criminality when in fact there is nothing criminal about it. It really is astonishing that anyone should be surprised that a labour MP from the left of the party supports wildcat strike action in certain circumstances. Of course he does, and there is nothing inconsistent between that support and support of the rule of law.

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Anonymous

Nastyness = Going on national radio to shill for your union paymasters while trying to desperately avoid admitting that you support illegal strike action, and then pretending that your real motivation is supporting workers (you know, the people who are most affected every time the unions call a strike).

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Anonymous

You know that workers (1) don’t have to be a member of a union (2) get to vote on whether their union goes on strike and (3) don’t have to strike even if a strike is called, right?

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Anonymous

So what? Why do you keep banging on about this?

Trespass, breach of confidence, fraud, conspiracy, harassment, false imprisonment, malicious prosecution, nuisance, conversion etc. etc. They are all civil wrongs. Some have criminal counterparts, but nobody should advocate or condone others commiting them as torts or as crimes.

It’s not difficult to grasp.

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Anonymous

Because breaching a contract does not come with the same moral opprobrium as breaching the criminal law. Indeed, as any first year law student knows, a party to a contract has a choice: perform the contract or pay damages. The use of the word “illegal” in the context of strike action is a deliberate choice of words that paints wildcat strikers as criminal, when of course they have done nothing worse in the eyes of the law than, say, someone who delivers a package a day later than they said they would.

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Anonymous

The history of the development of conspiracy as a civil wrong is by the way entirely tied up with the rise of collective action by industrial workers. It’s almost step by step- workers obtained statutory protections only to have them circumvented by common law development of conspiracy.

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Anonymous

Utter bollocks. Strikes are not about a choice not to perform a contract – that’s just the inevitable consequence of declining to work. Strikes are about denying the right to trade.

Why is it that an employer exploiting staff by, say, arbitrarily docking wages or refusing to pay notice isn’t considered ‘just’ breaching a contract but is morally repugnant (which is true); but striking and picketing to shut down a business and damage anyone who relies on it is no big deal?

Er, yes, the torts of conspiracy are historically closely linked to labour disputes. They’re also closely linked to collusion and market abuse by companies. And your point is?

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Anonymous

Dear NA
Your stance suggests that you believe in obeying any law whether civil or criminal in nature because that is the law full stop. You appear to suggest that that is the only moral position to take.

What if the law is immoral? Let me take an example. In the USA segregation was lawful and sitting in the wrong part of a bus/cafe or using the wrong toilet was a trespass. Along came some folks and ignored those laws. The publicity achieved was sufficient to have the law changed. Got any difficulty with that?

Sex between men was unlawful – many people ignored that law – were they wrong to do so?

It is quite possible to respect the rule of law and to brake laws at the same time. I may on occasions have broken the speed limit but I respect the speeding laws and would pay a fine without complaint.

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Anonymous

Yes and you can pay the penalty, just like the civil rights activists did in America and just like workers do when they carry out strikes like this. The point is that civil disobedience only actually works when your cause is just such as securing reasonable pay or fighting institutional racism. Not paying your taxes because you’re a selfish numpty isn’t going to achieve anything.

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Anonymous

Actually I was thinking of the tax peace protestors who have refused to pay tax because tax is used to buy and maintain nuclear weapons. But I agree with you, those people are numpties.

What’s a just cause? The one’s you give are clear examples of immoral laws. But they’re few and far between these days in western democracies. That argument is now usually a refuge for people who want to act unlawfully to pursue their own selfish or self-promoting ends but ride on the coat tails of genuinely principled, brave people from the past. Environmental activists are a good example.

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Corbyn. Symphathiser

The point of their argument is that NA is saying “everything is black and white – your actions obey the law, or they don’t”, with the implication that those who don’t are immoral. As an inevitable (according to Godwin’s law) example, French resistance fighters during the Second World War were breaking the law, but you would be hard pressed to find anyone who would describe them as immoral (save perhaps for Trumpenkrieg).

Anon 6:05 was not, I believe, attempting to legislate morality, which I agree is somewhat subjective, but rather to point out NA’s simplistic thinking is one which does not fit the world of nuance in which we inhabit, and that NA is unwilling to recognise this. As I mentioned yesterday, I have found that NA does not, as a rule, address criticism or questions which might upset their world-view (I have detailed in the past that their claim that they ‘encourage’ different political views is a lie) and so I would be stunned if they reply, as I have said below. But, also as below, I am more than happy to be pleasantly surprised.

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Corbyn. Sympathiser

I’m sorry to break this to you, but I don’t think NA will consider this to be worthy of reply, despite ‘lex iniusta non est lex’ being a well explored and considered concept since at least the Fourth Century.

I am open to being pleasantly surprised.

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Anonymous

In the Enerji case judgement published on 21 April 2009, the European Court of Human Rights condemned Turkey for violation of Article 11 of the European Convention on Human Rights, which relates to the freedom of association including the right to form and join a trade union. In this case, the Turkish government had issued a general ban on strike actions for civil servants in the context of national action days organized by a Turkish trade union for the recognition of the right to collective bargaining in the public sector.

In a previous ruling, the Court had stipulated that the Convention requires trade unions to be allowed to defend their members’ interests. In the Enerji case, the Court has for the first time acknowledged in no uncertain terms that trade union’s ability to defend their members’ interests is inextricably linked to the right to strike. Therefore, the right to strike can only be limited in narrowly defined circumstances which must be provided for by law, have a legitimate aim and be necessary in a democratic society. No wonder the Tories want out of the ECHR and the ECJ.

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Anonymous

This debate about illegal strikes is a non-story. Given the current animosity in the public sector towards the govt, not just relating to pay restraint and the 1% cap, but generally, relating to austerity, working conditions, safety etc, there would be no problem in a 50% threshold being achieved.

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