Socialist Lawyer Interview

RUSSELL FRASER and RIPON RAY interviewed new Haldane Vice-President JOHN HENDY QC shortly before the general election

Russell Fraser: Perhaps the main thing of interest to readers of Socialist Lawyer is your views on the labour movement, trade unions and the law and indeed your involvement in that relationship.

John Hendy: (Laughs) Crikey, that’s a big question to start with. When you look back in modern British history, the labour movement created the Labour Party in order to get reform of labour law. It was the struggle arising from the Taff Vale case in 1901 (Taff Vale Rly. Co. Ltd. v Amalg. Soc. Rly. Servants [1901] AC 426) that led to the foundation of the Labour Party and ultimately to the Trade Disputes Act 1906. So the struggle for trade union rights has been at the very heart of the relationship between the labour movement and the Labour Party. Of course, when Thatcher came to power the Tories introduced all the anti-union laws. The labour movement hoped that when Labour came to power in 1997 it would at least extend or broaden the legal freedom of trade unions to protect their members. In other countries these are regarded as fundamental rights. But of course the Labour Government refused to restore trade union freedom and to introduce laws complying with international treaty obligations which the UK has ratified.

RF: Did you expect to see change from Labour?

I was relatively optimistic. Always cautious, but relatively optimistic. But the fact is it didn’t happen. We’ve had three terms of a Labour Government which are shortly going to come to an end and the labour movement’s really got nothing significant from the Labour Party in those three terms as far as fundamental trade union freedoms are concerned.

RF: Was it a belief in the labour movement that brought you to the law in the first place?

I think it was the discovery that there was such a thing as labour law when I was a lawstudent that made me think I could bear staying in this business (smiles). Otherwise I think I might have done something else.

RF: Did you start your career as a labour lawyer?

Well, when you start you’ve got to do anything that comes your way. But very soon I was lucky enough to do a bit of employment law and personal injury work for trade union members and it took off from there really. You have to take steps to shape your own career by pushing away work that you’re less interested in and focusing on what you’re keen on.

RF: And then, of course, perhaps the most significant point of your career came at the high point of the miners’ strike

Yes, it was certainly a very significant point in my life.

RF: Are you proud of your involvement with the miners’ strike and indeed the Haldane Society? Did you ever encounter professional difficulty through this association?

Millions of people supported the miners and indeed lots of people at the Bar supported the miners. There was nothing unusual in that. I was proud to have helped both personally and professionally. That caused no professional difficulties at all.

RF: Coming back to law reform, a major case of blacklisting in the construction industry was uncovered in the last year and some of those cases are now going to the tribunal. Is that an area of law which needs amending?

Regulations on blacklisting have just been introduced but they are not as strong as they ought to be.

RF: Might you have expected blacklisting to have been consigned to the 1970s and 1980s?

It doesn’t surprise me in the least that it continues. I’ve always assumed that it has gone on – for as long as employment has existed and active trade unionists have been about. My dad was an active trade unionist all his life, much of it as an electrician on building sites. I grew up knowing about blacklisting of active trade unionists in that industry.

RF: You said earlier that Labour is coming to an end in power and that must imply you expect a Tory victory?

Not necessarily but whatever the result of the next election the Labour Party is clearly going to be weakened. Whatever the complexion of the next government I can’t see any possibility that they’re voluntarily going to give trade unions the essential rights that they need. The most fundamental right is the right to organise industrial action and the right of workers to take industrial action without losing their jobs or otherwise being penalised.

RF: And that’s what I wanted to lead up to: what you might expect to emerge from either the Labour Party or the Conservatives after the election in terms of labour law especially as there may be more industrial strife to come this year?

There have been murmurings about the Tories implementing a requirement that pre-strike ballots would have to represent a majority of the workforce instead of the majority of those voting. Barring strikes in essential services has also been talked about. But I wonder what enthusiasm there might be for those sorts of steps to be frank. The law is so slanted against trade unions already that its hard to see what added value these steps might be thought to bring.

RF: Would you re-introduce any pre-Thatcher union law?

I wouldn’t necessarily go back to the labour legislation of the 1970s. What is required are positive rights that reflect the standards of Conventions Nos. 87 and 98 of the International Labour Organisation (ILO) and Articles 5 and 6 of the European Social Charter – that’s what we ought to have. After all those are treaty obligations which the UK has ratified but which it refuses to implement.

RF: Are there many countries in Europe whose workers, on balance, have a better deal than our own?

Virtually every country in Europe.

RF: Unions are generally seen as quite strong in France, for example. Do you fear for the future of unions here?

No, no I don’t. Workers need trade unions and always will do. The unions, with all their faults, may take a bashing but they’ll always be there. You mentioned the union movement in France but only about 12 percent of French workers are in trade unions. Yet they wield enormous powers because around 90 percent of the workforce benefits from collective agreements made by trade unions and of course the French unions can mobilise massive demonstrations.

RF: Why is that? Why does the general public in France appear to always support those workers on strike?

That’s a huge cultural question. One has to know about the history and tradition of the French revolution; the position of the left and the communists during the Resistance; all those things, so that the French labour movement is, in many ways, unique. Most other countries have high rates of union membership and high rates of collective bargaining coverage. Only in France do you have that extraordinary dichotomy between a low level of union membership and a high level of collective bargaining coverage. Britain’s uniqueness in Europe is low levels of union membership and low levels of collective bargaining coverage. It’s only around a third of workers now who have the benefit of a collective bargain in Britain. If you look across the channel virtually every country has in excess of 80% collective agreement coverage – as indeed we did here prior to Thatcher.

RF: Do you put that down to cultural distinctions?

No, that’s down to government policy primarily. It’s the result of Thatcherism and Blairism. They set out to destroy collective bargaining. Industry-wide collective agreements were destroyed. All legal and structural supports for collective bargaining were removed. And, of course, legislation removed the power of the unions to take industrial action, particularly sympathetic industrial action. It’s the combination of those concrete measures that have destroyed collective bargaining coverage in Britain – nothing to do with culture.

RF: And you don’t see that changing any time soon presumably?

I think there are possibilities. I think the European Court of Human Rights offers a glimmer of hope. The decision the year before last in the case of Demir and Baykara (Demir and Baykara v. Turkey [GC], no. 34503/97, ECHR 2008) established that Article 11 which protects the right to be a union member has, as an essential element, the right to collective bargaining. That will have big repercussions. If the right to collective bargaining is an essential element so must be the right to strike which necessarily underpins the right to collective bargaining.

RF: Has it been relied on in the English courts yet?

We relied on it in the case of Metrobus v Unite (Metrobus Ltd v Unite the Union [2009] IRLR 851) in the Court of Appeal last summer in support of the right to strike. We argued that the restrictions on the right to strike in UK legislation ought to be construed in accordance with the European Convention given the lead in cases like Demir. But the Court of Appeal was not impressed with that argument and they construed the UK legislative requirements very strictly. Those requirements are just extraordinary; in Metrobus the injunction was granted on two bases: (i) the union took 20 hours to deliver the ballot result to the employer – this failed the requirement to deliver it “as soon as reasonably practicably” (there was no complaint about the timing of the notice of industrial action); (ii) the union failed to give the “explanation” in the notice of industrial action that its identification of the proposed strikers was drawn from its computer! Not surprisingly the employer made no complaint that it had suffered any detriment by these two failures. But the CA held that either justified the injunction. When you explain that to European lawyers they can’t believe it.

Ripon Ray: Why are judges against unions? I don’t think the problem here is the judges; it’s the law. Nonetheless, generally speaking, and with notable exceptions, judges in every country, tend to reflect the economic interests of those who control the country. That would be equally true in Cuba and Venezuela as it has been in pre- and post-apartheid South Africa. Here, though, unions have a tough time in court. We’ve seen the judiciary hammer the government on various restrictions on civil and political freedoms.

RF: What’s formed your view that some labour laws are iniquitous?

Politically anyone on the left will see these restraints on working class power as unjust. But when one looks at it through the lens of the law the test has got to be that of international law. The UK is in flagrant breach of ILO Convention No.87 and No.98 and of European Social Charter Article 6(4) and it has been found to be in breach by the supervisory bodies year after year. Twenty years of adverse judgments in the ILO have been ignored by successive governments, Conservative and Labour.

RF: Has the Labour Party ever courted you to become an MP like it has your fellow Haldane member Michael Mansfield?

No. The Labour Party has never courted me for anything!

RF: Turning to the Haldane itself, can you give us a flavour of what it means to you and what it could do in the future?

I think it occupies a very important function because it puts people who are on the left in the law – which is basically enemy territory – in touch with each other. It can be quite lonely representing the sorts of interests that Haldane members are naturally inclined towards. I think it’s important that there should be solidarity among lawyers who are on the left. I particularly think it’s important to the extent that the Haldane Society can put the young in touch with the old. I always thought it was rather sad that people like myself were active in the Haldane when we were younger but then we get caught up in other things – family things, work and what have you – and we fall away. But there are a lot of links to be passed on and a lot of help that can be given to those coming up. I’d like to see the Haldane do more of that and I’m sure the will is there, it just requires working out the structures in which that can be done.

RF: Is it important for lawyers to take a political stand? Not in their professional work, no. I’ve always thought the notion of a left-wing barrister is an absurdity. It’s what you do with your time outside work that is important politically. Of course it’s nice to represent people with whom you sympathise and that would be true whether they’re trade unionists or people who are disabled or subject to any form of injustice, it’s just a nice feeling. But I think the cab-rank rule is far more important You don’t ask what someone’s politics or religion are before you accept a brief. If you act for unions you will act for them as employers of their own staff as well as representing workers. You can’t pick and choose. The rule that the devil himself is entitled to an advocate is far more important than whether one feels empathy with a client. I think if one’s being judged politically, it’s the commitment one makes with one’s free time that counts. No one’s going to pay you to be a revolutionary and I think it’s an absurd arrogance to think of yourself as a left-wing barrister, a conceit not open to, for example, an electrician. How can you be a left-wing electrician? You’re not; you put in wiring and fuse boxes. But you may be left-wing and active in your union at the same time. Its those activities that put your politics into practice.

RF: Are you a union member yourself? I am not, not because I don’t think it’s appropriate. I’m self-employed so I’ve got no employer. But I’m an honorary member of the National Union of Mineworkers and very proud of that honour.

RR: Where do you see yourself in five years’ time?

Doing a bit less and enjoying a more time on holiday with my family.

RF: Lastly, a selfish question really: I know you’re a fan of blues music. At university I wrote my history dissertation on the blues. Which players are your favourites?

Walter Trout is the man of the moment for me but Jimi Hendrix I always thought to be the greatest of blues players. I never saw him though I did once have the opportunity but I blew it for various reasons (laughs).

RF: Studying probably…

Certainly not.

John Hendy QC is a new Vice- President of the Haldane Society.

He specialises predominantly in the fields of industrial relations and employment, together with personal injury and medical negligence cases. He has appeared on behalf of the victims in a number of significant public inquiries including The Ladbroke Grove Train Crash Inquiry and the Southall Train Crash Inquiry. He led ground-breaking test case litigation establishing liability for "vibration white finger" on behalf of British Coal mineworkers.