Printer FriendlyThe attack on the miners was a turning point
No student of the second half of twentieth century Britain could underestimate the importance of the miners' strike of 1984-5. The fact that the labour movement did not succeed has had profound effects in Britain and the world. In 1984 neoliberalism was just under 40 years old, well established but far from being the dominant ideology, even in the USA and UK. The attack on the miners was a turning point in the triumph of neoliberalism in becoming the ideology of government - in the UK and abroad. Ironically the disaster of neo-liberalism is only too evident now, six months into a world-wide recession, 25 years after the miners' strike.
The attack on the miners clearly inspired the print workers in 1986 and the dockers in 1989. The privatisation of the National Coal Board (NCB) led to the virtual closure of the British coal industry (though not to any significant diminution of the use of coal: 43 million tons imported in 2007 at a cost of over £2,000 million representing 72 per cent of coal consumed in the UK).
The strike failed in its attempt to prevent the Tory Government reneging on the long established terms for colliery closure, the Plan for Coal. The reason for that outcome was simple: the weight of the resources committed by Government and employers and the failure of the labour movement as a whole to rally behind the miners.
Part of the weight of the Government attack was through the law courts. Mike Mansfield QC has written elsewhere in this edition of the use of the criminal courts. I shall focus on the civil courts.
The strike is always dated as having started on 9th March 1984 when Yorkshire area NUM struck in response to a local NCB announcement to close Cortonwood on economic grounds - a reason that was made specifically impermissible by Plan for Coal. In fact Polmaise pit in Scotland had been on strike since February over a proposal to close that pit. There had been a national ban on overtime for some months of such effect that the Central Electricity Generating Board (CEGB) warned the Government that stocks would not last the year.
There has been a suggestion that the NUM made a tactical error in striking at the end of winter but the criticism is absurd since the timing of a defensive strike is inevitably in the hands of the employers: was the NUM to abandon pits (and, indeed, the industry) threatened with closure without a fight?
On 20th February 1984, The Observer claimed that the NCB planned closure of 30 pits with the loss of 30,000 jobs. The NCB dismissed the story as speculation. But on 6th March the recently appointed new NCB chief, Ian McGregor, announced that 20 pits were to close in the next year with the loss of 20,000 jobs. This was a declaration of war on the miners.
On 8th March the NUM national executive committee (NEC) approved area strikes against pit closures for Scotland and Yorkshire and any other area prospectively. The NEC of the NUM had to approve NUM area strikes under the national rules for such strikes to be 'official'. It resolved to do so by 21 votes to three.
The NUM did not call a national ballot, necessary under its rules for a national strike. This was not a decision of the NUM leadership, Scargill, Heathfield and McGahey; it was a decision of a national delegate conference, binding on the leadership and the members. That did not affect the legality of the strikes called by NUM areas lawfully, in accordance with their own rules and approved by the NEC. The NUM was, of course, a federation of unions and not a single union. Its structure reflected its history from the founding of the Miners’ Federation of Great Britain in 1889.
Other NUM areas took the decision whether to strike in accordance with their own rules. Derbyshire was split. Notts was overwhelmingly against a strike. Within a fortnight 80 per cent of miners throughout country were on strike.
On 14th March the NCB sought an injunction against Yorkshire picketing which was granted on 20th March. However, the injunction was never enforced or relied on and the NCB did not intervene legally again.
Instead another stratagem was employed. As McGregor wrote in his account of the strike: '[...] I started thinking how I too could assist in supporting the [working miners] with their legal actions without being directly involved. Any NCB action would be counterproductive in the extreme and would probably repel as many working miners as it would attract. The whole concept of the operation would be like the wartime Department of Economic Warfare. In parallel with our Department of Strategic Warfare we would try to stimulate actions which would cost Scargill so much money that it would reduce his ability to finance flying pickets. It was the success of this area of operations which was to progressively tie the NUM up in knots and ultimately may well have been the single most important factor in bringing about an end to the strike.'
McGregor engaged an agent (David Hart) to travel the coal fields recruiting working miners and gaining funding from sympathetic businesses and other bodies to institute legal actions against the NUM and its area unions. In consequence there were numerous sets of injunction proceedings against the NUM and its areas. These barred the use of the word 'official' in relation to the strike and the use of area funds on the illogical ground that an area strike in accordance with its own rules became unlawful because not sanctioned by a national ballot as part of a national strike. The NUM was put first into receivership (Clarke v Heathfield) and then into sequestration (Taylor and Foulstone v Yorkshire Area). Each area had its own solicitors (many represented by Thompsons) but the NUM nationally was represented by Seifert Sedley, in particular by Mike Seifert, Sarah Burton and Jane Deighton who did a truly magnificent job. The NUM survived this onslaught, though we were almost consistently unsuccessful in every hearing of what ended up being 18 months full time and exclusive work for the miners.
The litigation generated by the strike went on long after the strike ended. The sequestration of the NUM was not lifted until November 1986 and the receivership not until June 1986. There was litigation consequent on the creation of the UDM, and arising from the NCB's discrimination in favour of the UDM over the NUM. Legal advice was needed in 1990 when Scargill and Heathfield were faced with outrageous and false allegations of misappropriation of huge sums from Libya and the Soviet Union during the strike. It was two years before their names were cleared. In 1992 Mr Heseltine proposed the closure of 30 pits to complete the Tory attack on the miners. We challenged the process successfully by way of judicial review. 500,000 people demonstrated in Hyde Park - public sympathy for the miners had not abated but the closures were merely deferred.
The miners' strike, of course, was the anvil for new anti-union laws. The common law developed the interim declaration, and the use of receivership in a trade union. Industrial action ballots and notices had been introduced in the Trade Union Act 1984 but did not come into effect until after the miners' strike. But the Employment Act 1988 was the Governmen's response: the Commissioner for the Rights of Trade Union Members, increased members' rights to challenge union expenditure and discipline, extensive rules for the election of senior officials and executive committees, inspection of union books, bar on indemnification of members' fines, and so on. Thereafter the Tories introduced another half dozen antiunion Acts. New Labour has maintained the tight regulation.
We have now ended up with a state of the law correctly described by Tony Blair in March 1997 as leaving 'British law the most restrictive on trade unions in the western world'. British trade unions and trade unionists have fewer rights now than in 1906 after the passing of the Trade Disputes Act. This is notwithstanding that these restrictions are in breach of international treaty obligations ratified by the UK, as the supervisory bodies have often told this and all previous governments since 1989.
Working closely with the miners in their heroic struggle was a special privilege. The sacrifice of their families was immense. Their leaders were some of the most impressive, long thinking and principled people I have ever met. The criticisms of the leadership at the time and in the 25 years since are wholly unconvincing. What tactical and strategic room for manoeuvre that was available was fully exploited. The fact is that the strike was almost won in the winter of 1984-5. The weight of forces against the miners was and is obvious. As lawyers we were always aware, for example, of the surveillance of state security. It was a sensible precaution to hold consultations in taxis and walking round the squares of Lincoln's Inn. Seumas Milne's book, The Enemy Within, gives an idea of the extent of covert state interference.
At the end I felt that we lawyers had done a good job. We had prevented the union been tied up in legal red tape. It did continue to function to the end. It was not the legal process that defeated it.
During the strike the Haldane Society Employment Committee was extremely active, meeting weekly. Apart from raising funds, its greatest achievement was setting up a legal service in Nottinghamshire where those on strike ceased to have any support from their area union (which became the UDM). The service was centred on Ollerton Miners Welfare. A full time co-ordinator was appointed and was answerable to the local strike committee. Volunteer barristers and solicitors went up daily. Since every road into Nottinghamshire had a police road block to prevent pickets it was necessary to organise the rota so that there was always at least one woman lawyer in the car. Cars with men only - even wearing lawyers' suits - were assumed to be pickets and were, without exception, refused entry to Nottinghamshire on weekday mornings.
The long rota list of Haldane volunteers was very effective and very hard worked. Magistrates Courts in Nottinghamshire (and elsewhere) sat till late in the night imposing bail conditions and dispensing 'justice'. I fully supported the miners as did the Haldane Society and millions of ordinary folk. We all felt it was a principled struggle against the worst excesses of Thatcherism and the preservation of the industrial and social concord on which had rested stability, and a degree of social equality and mobility since 1945.
Whilst I believe fundamentally in the cab rank rule for barristers which has played an important (though obviously incomplete) role in securing justice for some (at least) of the poor and oppressed, there is always a satisfying pleasure in being on the side you like or support. For me it was, and remains, a very great honour to represent the NUM. Now with the Legal Services Act 2008, the independence of the Bar and with it the cab rank rule and access to the best advocates is finally to be destroyed - another legacy of the failure to resist neoliberalism 25 years ago.
Like millions of others, on 4th March 1985 I watched on TV the men, and the banner and the band from Maerdy marching back to the pit at the end of the strike and I wept.
John Hendy QC (Standing Counsel to the NUM, though writing in a personal capacity; member of Old Square Chambers; Visiting Professor in the Department of Law, King's College, London; Chair of the Institute of Employment Rights)
