New Labour’s Reform of Britain’s Employment Law: The Devil is not only in the Detail but in the Values and Policy Too

Published date01 March 2001
AuthorPaul Smith,Gary Morton
Date01 March 2001
DOIhttp://doi.org/10.1111/1467-8543.00192
NewLabour'sReformofBritain's
Employment Law: The Devil is not only in
the Detail but in the Values and PolicyToo
Paul Smith and Gary Morton
Abstract
The Labour government's goal of social partnership embodies a particular view
of the appropriate role of labour within the employment relationship, which
requires the marginalization of trade unionism as an autonomous force. Its
programme of employment law reform combines a dual focus: first, the
reaffirmation of measures that weaken workers' collective power through the
exclusion of autonomous trade unionism, and second, initiatives to regulate the
labour market, strengthen workers' rights within the employment relationship,
and include enterprise-confined, cooperative unions as subordinate `partners'.
However, the second policy dimension has been diluted because of the com-
mitment to free-market values.
1. Introduction
The election in May 1997 of a `New' Labour government in Britain, with a
massive Commons majority, decisively ended the Conservatives' domination
of government since 1979. Despite explicit promises of continuity in a range
of policies, expectations were high that much was to change. One area was
the reform of employment law, which under the Conservative government
had been the object of successive initiatives inspired by a free-market
ideology (albeit pragmatically implemented). Labour's wide-ranging pro-
gramme is summarized in its white paper, Fairness at Work (FAW) (De-
partment of Trade and Industry 1998); the legislative centrepiece is the
Employment Relations Act 1999 (ERA), declared to be the definitive
statement and settlement of employment law for the government's first term
of office.
Paul Smith is at the Department of Human Resource Management and Industrial Relations,
Keele University. Gary Morton is a barrister-at-law and a visiting lecturer in the same
department at Keele University.
British Journal of Industrial Relations
39:1 March 2001 0007±1080 pp. 119±138
#Blackwell Publishers Ltd/London School of Economics 2001. Published by Blackwell Publishers Ltd,
108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
Much discussion to date has focused upon separate aspects of the legis-
lative programme. This paper has a wider remit, which is to offer a critique
of the Labour government's values and policies in relation to employment
law and industrial relations, with special reference to the ERA. Its central
argument is that New Labour's goal of social partnership embodies a
particular view of the appropriate role of labour within the employment
relationship, which requires the marginalization of trade unionism as an
autonomous force. This is to be achieved by the maintenance of legislation
restricting and regulating trade unions and industrial action, and by the
imposition of new rules for the hire and management of labour (including
minimum pay) and for its collective and individual representation at work.
In particular, the statutory procedure for trade union recognition and the
limited protection from dismissal for employees taking lawful industrial
action are intended to promote co-operative forms of trade unionism. The
devil is not only in the detail of Labour's policies (Wood and Godard 1999:
205), but in the values and policy too.
2. New Labour's industrial relations policy
The similarity of many New Labour values with New Right Conservatism
has been frequently noted by politicians and commentators alike (see Hay
1999). A declared goal of Conservative government policy over the 1979±97
period was to liberalize labour and capital markets. Unions were perceived
to act as a constraint upon the efficient operation of markets and individual
freedom, justifying special legislation to restrict and regulate their activities
(Wedderburn 1989). This programme has been described as `probably the
most single-minded and sustained attack on the position of a major and
previously legitimate social force to have been undertaken anywhere under
modern democratic conditions' (Crouch 1996: 120).
Although having the common goal of demobilizing workers' collective
power, the measures were unequal in their effect, which also varied accord-
ing to the power of particular groups of workers (Hyman 1989: 188). The
legislation's cumulative impact upon trade union organization and practice
is undeniable, although debate continues as to its relative importance
compared with other factors, such as structural economic change, business
cycles, and new methods of work organization and management (Brown
et al. 1997; Smith 1999; Waddington 1992). The measures against unlawful
`secondary' and unofficial and unballoted industrial action have fragmented
and constrained workers' collective power, with the inevitable and desired
outcome of enhancing employers' power within the employment relation-
ship (see Brown et al. 1998: ch. 9; McIlroy 1999: 526±32). The law has been
devastating to groups of workers hard-pressed in particular disputes (for
example the Liverpool docks dispute, 1995±8). Its maintenance by the
Labour government means that `the existing balance of bargaining power,
which favoured the employer, [is] seen as appropriate' (Undy 1999: 330).
120 British Journal of Industrial Relations
#Blackwell Publishers Ltd/London School of Economics 2001.

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