Saturday, July 29, 2017
Much online comment has arisen from remarks made by the Labour Leader concerning the impact of migration on wages. I am not really interested in a debate about whether “Jeremy Corbyn is right” about this or that issue – that simply makes politics about individuals (in a way with which no constituent of St Caroline of Lucas can ever really be comfortable).
I am more interested in the question of migration and the interests of the working class, with reference to the arguments advanced by those on the left who (in some cases having supported a “leave” vote in the referendum) emphasise that “free movement of labour” is something which can advance the interests of capital (as, in the right circumstances, can almost anything in a capitalist society) as if that meant it could not be in the interests of labour.
I don’t want to get into the detail that we do not have (and have never had) “free movement of labour” nor that state imposed controls upon the movement of people invariably fail to prevent “illegal” migration and simply create a “reserve army” of undocumented workers (usually demarcated by race, nationality or ethnicity) who can be used to undercut the terms and conditions of workers with legal rights (so that all calls for legislative or administrative restrictions on free movement are simply demands for the state to further regulate membership of that “reserve army”).
What I am interested in is how the “socialist” case against free movement of labour is made by those whose understanding of the (class) interests of the working class is constrained by an implicit acceptance of the existence – and persistence – of capitalist social relations of production.
The politics of the “British Road to Socialism” underpins the case for “Lexit” – it is a politics founded upon the notion that there can be (and indeed is) a “British” working class, distinct in some way from the global proletariat (and that this “British” working class exists within the – implicitly static - context of “actually existing” capitalism).
It doesn’t take more than a few minutes of thinking about where the boundaries of such a “national” working class would be drawn (and who would be on which side of those boundaries) to realise that this is nonsense. There can no more be a (distinctively) “British” working class than there is a “white” working class. These concepts are extensions of the error of treating class as if it were essentially a category rather than a social relation, an error which is associated with politics based upon a static conception of an existing class society, as opposed to a dynamic understanding of class struggle.
The politics of those who see themselves as the representatives of a “British” working class are as limited as are those of trade unionists who see themselves as only representing their own section of the class (such as representatives of skilled workers who seek to restrict labour supply to support the market position of their members – as much against other workers as against the employers). These are the politics of those whose “class politics” are entirely about advancing the interests of a section of the working class within capitalist social relations of production, rather than transforming those social relations of production.
There can be no “working class” (or socialist) argument for restricting migration of people across the “national” boundaries of capitalist states. Indeed such national boundaries cannot have meaning from a socialist perspective.
Our interests as workers are international. Those who make the mistake of believing in “socialism in one country” inevitably slide towards prioritising the interests of a “nation” over those of a class – and the interests of a “nation” (in a capitalist society) are the interests of that segment of the global ruling class which is associated with that nation.
The task of socialists is to represent the interests of our class. Those interests do not have nationalities (nor, for that matter, genders nor ethnicities, nor any other particular characteristic – which is not to say that oppressed groups, including oppressed nationalities, do not have collective interests in opposition to oppression with which socialists have to be engaged in developing the consciousness of our class if we are ever to transcend the limits of this society).
Socialism is about uniting our class, which means uniting our class beyond all national boundaries (and identities) in opposition to exploitation and oppression. No one who defends a “British” working class is on the side of the working class and there is no socialist case for controls on migration (no matter how many workers, or self-proclaimed socialists, may insist otherwise).
Thursday, July 27, 2017
Regular readers of this blog over the years (Sid and Doris Blogger) will know that – as a former members of the National Executive of UNISON (and long standing Branch Secretary) I was never backward in coming forward with criticisms of my trade union when I felt it right to express these.
It is only right therefore to join the chorus of praise for UNISON’s having seen through to the Supreme Court its challenge to the iniquitous imposition of fees for employment tribunal claimants – and to celebrate the victory for our whole class won by UNISON in the Supreme Court judgement.
Lord Reed’s words are a pleasure to read and his demolition of the Government’s position is comprehensive and complete. The Supreme Court felt it had to educate the Tory Government about the importance of the rule of law;
“67. It may be helpful to begin by explaining briefly the importance of the rule of law, and the role of access to the courts in maintaining the rule of law. It may also be helpful to explain why the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable.
68. At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.
69. Access to the courts is not, therefore, of value only to the particular individuals involved. That is most obviously true of cases which establish principles of general importance. When, for example, Mrs Donoghue won her appeal to the House of Lords (Donoghue v Stevenson  AC 562), the decision established that producers of consumer goods are under a duty to take care for the health and safety of the consumers of those goods: one of the most important developments in the law of this country in the 20th century. To say that it was of no value to anyone other than Mrs Donoghue and the lawyers and judges involved in the case would be absurd. The same is true of cases before ETs. For example, the case of Dumfries and Galloway Council v North  UKSC 45;  ICR 993, concerned with the comparability for equal pay purposes of classroom assistants and nursery nurses with male manual workers such as road workers and refuse collectors, had implications well beyond the particular claimants and the respondent local authority. The case also illustrates the fact that it is not always desirable that claims should be settled: it resolved a point of genuine uncertainty as to the interpretation of the legislation governing equal pay, which was of general importance, and on which an authoritative ruling was required.
70. Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established. Their cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless. The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.
71. But the value to society of the right of access to the courts is not confined to cases in which the courts decide questions of general importance. People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations. That is so, notwithstanding that judicial enforcement of the law is not usually necessary, and notwithstanding that the resolution of disputes by other methods is often desirable.”
On the back of this reasoning the Court has thrown out employment tribunal fees. Everyone who has paid them will have to be refunded. As importantly, this judgement is an authoritative rejection of the Thatcherite view that “there is no such thing as society” when it comes to the law.
The judges have explained that the value of our legal system is not a privately owned commodity of value only to litigants but a “public good”. The significance of yesterday’s judgement will only become more apparent with the passage of time.
This is a fabulous result, and our General Secretary was right, in his message to members yesterday, to single out for praise the members of UNISON’s legal team who fought this case to its successful conclusion.
Now that we have won this considerable victory our labour movement needs to consider how we use employment tribunals to try to defend workers’ rights.
Six years ago – before the introduction of fees – I was bemoaning (and explaining the reasons for) the decline in union-backed tribunal claims.
I explained what we had lost as follows;
“As late as the early 1990s when I started more than a decade of regular tribunal representative as a lay union official (or "jumped up shop steward"), it was quite normal for lay and full time union officials to appear as tribunal representatives - sometimes with employee relations specialists from what we used to call personnel sections representing the employers.
We could back a case if it felt like the right thing to do, or if we needed to show our members that we backed a popular or long-serving colleague, or to show the employer that we were serious about enforcing the procedures which we had agreed with them.
As long as we didn't pursue completely hopeless cases we ran no risk that our members would face an order for costs even if we lost - and since the employers knew we would challenge almost any dismissal in an employment tribunal they were always on their toes when it came to following procedures before any dismissal.”
Long before the threat of fees, the insidious spread of lawyers into the tribunals – and the growth of negligence claims against trade unions – had led us to the position in which we already found ourselves at the point at which fees were introduced (as I observed in 2011);
“Now we refer such cases to solicitors and - if they think that the case has sufficient merit and advise us accordingly - we instruct them to take the case (and the legal liability which goes with it). Members who have a good case get quality representation, but members with a marginal case are left to fend for themselves. In the way of things, sometimes those members win a case we wouldn't take, or get a settlement after we have had to refuse to represent them. Though those cases may be a tiny fraction of the cases we have to refuse, they are of course the ones of which other members become aware. This is bad PR for the union, but that isn't something that can now be taken into account in deciding whether to take a case to tribunal.
Although this change was marketed at the time as freeing up the time of officers and activists for organising, it doesn't do that. There is as much work in preparing a case for the solicitors as ever there was in doing it yourself. The benefit to the union is entirely about the cost of professional indemnity insurance.
We have lost so much more. We cannot bring marginal claims to enhance the Union's reputation (workers don't mind seeing us lose a marginal case if we fought it with intelligence and determination - and we can recruit on the back of the respect gained by having been willing to have a go).
We have lost the ability to back a weak case for a respected and long serving member, leaving us vulnerable to the perception that we abandon our own in times of trouble - and losing the enormous benefit that came from the employer knowing that every dismissal of a UNISON member would be challenged in an employment tribunal (in all the years I represented many members against my own employer in the employment tribunal they never got costs against us - and almost never even tried).
We have lost the ability to weigh factors other than the specific legal merits of the particular individual case when deciding which cases to support. For an organising union this is a tragic loss, since we cannot decide to pursue a weak (but not hopeless) case in order to advance an organising objective - nor can we weigh the detailed local knowledge of our representatives as to the likelihood of the employer giving ground ahead of a hearing.
Most importantly of all, our lay and full time officials have lost the experience of tribunal representation. Regular appearances in the tribunal meant that you had to keep up with case law - and that paid dividends daily in negotiations with management and in internal hearings. Union officials who knew they would regularly be advocating for members at the tribunal were forced to try to keep abreast of case law.”
It is more than ten years now since I represented a member at an employment tribunal on behalf of UNISON, and now that I am no longer a UNISON official I shall never do so again – but UNISON activists, and other trade unionists, need to reflect upon how our movement might make best use of UNISON’s fabulous victory in the Supreme Court.
UNISON took that case because it was right to do so (and it would have been right even if the Supreme Court hadn’t correctly seen how important this case was for the rule of law itself). UNISON took a risk, and took a case which might not have won, reasoning correctly that it was in the interests of our members – and that the reputational impact upon our Union would be beneficial even had we lost (but been seen to have fought).
As things stand, these sort of considerations cannot generally be applied by UNISON to the decision of whether or not to support a claim in an employment tribunal. That decision is taken based entirely upon a solicitor’s judgement of the legal merits of the case, informed by evidence and information collected by lay and full-time officials who themselves no longer have tribunal experience.
Whilst it is – of course – true that litigation is no substitute for organisation, the legal rights which we have (however inadequate) are valuable and worth enforcing (have a read, for example, of paragraphs 70 and 71 of the Supreme Court judgement). I hope that my friends and comrades on UNISON’s National Executive Council will take the opportunity of yesterday’s splendid decision to reflect upon the Union’s approach to employment tribunal claims.
It would be a shame if the increase in employment tribunal claims which may now be anticipated enriched a new generation of “no win no fee” solicitors, rather than being led by suitably trained and supported trade unionists and their lawyers.
Remember what happened when we won an increase in compensation for successful equal pay claimants…
Saturday, July 22, 2017
I haven’t been ignoring the trade union movement since giving up my various positions within UNISON - but I must admit to having failed, over the past six weeks to comment upon important official statistics about the state of our union movement.
It’s not good news comrades.
Around 6.2 million employees in the UK were trade union members in 2016. The level of overall union members decreased by 275,000 over the year from 2015 (a 4.2% decrease), the largest annual fall recorded since the series began in 1995. Current membership levels are well below the peak of over 13 million in 1979.
It’s not just our numbers that are falling.
The trade union wage gap, defined as the percentage difference in average gross hourly earnings of union members compared with non-members, is 14.5% in 2016 in the public sector, down from 16.1% in 2015 (and 30.3% in 1995). In the private sector the decline was more modest in one year (from 7.7% to 7.6%) – but this is less than half the differential of 15.3% which applied in 1995.
So our effectiveness as collective organisations of working people is in decline.
Fewer workers are in trade unions because trade unions offer less to workers.
Who should be rising to the challenges implied by these statistics?
Perhaps it should be the leaders of our movement.
But what do we have by way of leadership of trade unions in 2017?
A TUC General Secretary prepared to welcome policy proposals from an incumbent Conservative Government during a General Election campaign would be difficult to take seriously if the TUC itself mattered much. That is not the case.
What matters most in the leadership of the trade unions is, I guess, the leadership of the large unions – but the picture there is hardly encouraging.
Our third largest trade union, the GMB, has a General Secretary elected by a narrow majority of one twentieth of the membership in an election, the conduct of which has been criticised by the Employment Appeal Tribunal.
UNITE, the largest union in its own opinion, has recently re-elected its General Secretary in an unnecessary election (in which support for the incumbent declined – and which will face a challenge to the Certification Officer).
As for UNISON, whilst our General Secretary himself cannot be criticised, his most recent election has been subject to withering scrutiny (and its outcome was that he was supported by less than a majority in the lowest turnout we had seen).
I don’t intend, in this blog post, to set out the answers but to draw attention to the problem – which is that our trade union movement is declining in membership and effectiveness whilst under the leadership of those who do not appear to command the confidence of our members (nor have any idea about how to respond to this crisis).
There is more to be said about the reasons for the current predicament of our trade union movement.
I will return to this topic as time permits.