‘Immunity’, ’Privilege’, and ‘Right’: British Trade Unions and the Language of Labour Law Reform
| Date | 01 September 1998 |
| Published date | 01 September 1998 |
| Author | Keith Syrett |
| DOI | http://doi.org/10.1111/1467-6478.00097 |
A continuing debate exists among labour lawyers in the United Kingdom
as to the most appropriate legal framework for the regulation of collective
industrial action. Many have argued that a change in legal form will not
in itself afford greater protection to union activity. Through an analysis
of the changing approach of the trade union movement to the issue of
‘immunities’ and ‘rights’ during the Thatcher period, this article seeks to
demonstrate that adoption of the ‘rights’ discourse in fact offered consid-
erable strategic advantages. In consequence, any analysis of this question
should not overlook the significant political role played by language.
INTRODUCTION
Following the ‘linguistic turn’ in twentieth-century philosophy,1the political
significance attached to particular forms of language has become a standard
topic for investigation in recent years. Academics and other commentators
have increasingly come to view language as more than a relatively neutral
and transparent descriptive vessel, arguing that it plays a constitutive role,
structuring and shaping both the subject and his/her manner of viewing ‘real’
objects and experience. In the work of theorists such as Murray Edelman2
and Michael Shapiro,3political phenomena are rarely objectively experienced;
rather they are mediated through symbolism and language. The construction
and maintenance of identity, the orchestration and justification of campaigns
of opposition and the mobilization of support are primarily linguistic acts.
© Blackwell Publishers Ltd 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* The Norwich Law School, University of East Anglia, Norwich, Norfolk NR4
7TJ, England
388
JOURNAL OF LAW AND SOCIETY
VOLUME 25, NUMBER 3, SEPTEMBER 1998
ISSN: 0263–323X, pp. 388–406
‘Immunity’, ‘Privilege’, and ‘Right’:
British Trade Unions and the Language of Labour Law Reform
KEITH SYRETT*
1Identified by R. Rorty in The Linguistic Turn: Recent Essays in Philosophical Method (1967).
For a discussion of the relationship between philosophical investigation and the study of
political language, see F. Dallmayr, Language and Politics (1984).
2See, for example, M. Edelman, The Symbolic Uses of Politics (1964); Constructing the Political
Spectacle (1988).
3See M. Shapiro, Language and Political Understanding (1981); The Politics of Representation
(1988).
Accordingly, language (or discourse)4is ‘a bearer of political content’, which
carries within it the perspective or ‘world-view’ of the user. The task of the
political analyst, on this approach, is to explore language as a site of
ideological contestation and to explain how and why particular definitions of
‘reality’ achieve a discursive hegemony which enables them to dominate
debate and thus secure support for a given response to an issue which itself
has been discursively constructed.
Labour legislation and policy offers particularly fertile ground for those
seeking to examine the politics of discourse. It is perhaps trite to observe
that labour law (especially that branch concerned with industrial relations)
is not – and cannot be – politically neutral, but rather reflects and reinforces
particular ideologies which may change over time, in accordance with wider
socio-economic trends, policy objectives, and political philosophies.5Since
language is the locus within which these ideological understandings are
embedded, conflicts over the use and definition of key words are fundamental
to a proper understanding of the relations of power between the parties
involved, a point clearly expressed by Lord Wedderburn:
it is essential to look closely at the meanings of the words offered by those in charge of
the debate [on labour law]. . . In such inquiries it is also to be noted that the agenda for
argument is often set by those who have power which they are unwilling to share. Control
of the agenda often implies control over the language of the debate and the meaning
given to events. This is of great importance in British labour law where the terms
employed are often unusually technical . . . Of course the very language in which we
speak of . . . social objectives is itself a weapon of change or resistance . . . Labour law
is a well known crucible for the fusing of the ideology and semantics inherent in
arguments that claim to rest on ‘facts’ or ‘principle’.6
One area of continuing concern to British academics and trade unionists
exploring possibilities for the reform of labour law is the relative impact and
efficacy of the ‘immunity’-based system whereby industrial action has histor-
ically been given protection from common law principles, as opposed to a
regime based around collective ‘rights’.7A number of discussions of this issue
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© Blackwell Publishers Ltd 1998
4The term ‘discourse’ is widely used, but problematic to define. The linguist Gunther Kress,
following Foucault, defines it as a ‘systematically-organised mode of talking . . . which give[s]
expression to the meanings and values of an institution’ (quoted in R. Fowler, Language in
the News (1991) 42). As Fowler observes, this definition focuses attention on the manner in
which ideology is embedded within the linguistic practices of an institution, and is therefore
appropriate for the discussion which follows here.
5‘Uncomfortable though it may be to lawyers brought up to believe in the impartiality of the
law, our industrial relations law is, at the end of the day, explained only in party political terms’,
B. Perrins et al. (eds.), Harvey on Industrial Relations and Employment Law, vol. 2, para. N.053.
6 K. Wedderburn, Labour law and freedom: further essays in labour law (1995) 354.
7Literature on this topic is extensive. See, among others, Department of Employment, Trade
Union Immunities (1981; Cmnd. 8128) ch. 4 (and further below); P. Elias and K. Ewing,
‘Economic Torts and Labour Law: Old Principles and New Liabilities’ (1982) 41 Cambridge
Law J. 321, especially at 356–8; K. Ewing, ‘The Right to Strike’ (1986) 15 Industrial Law J.
143, especially at 145–6, 158–60; G. Pitt, The Limits of Industrial Action (1995); R. Welch,
‘Re-establishing Trade Union Rights: For Positive Rights to Strike’ in The Future of Labour
Law, ed. A. McColgan (1996).
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