Why ‘good’ Tories are supporting Boris Johnson

I met last night with a senior Conservative MP in a very small gathering (mostly of Tory supporters) under Chatham House rules. It was – even by those standards – a frank and honest discussion. X comes from a Conservative tradition I’ve always had regard for – although it is not my tradition – and I’ve been alarmed to see Tories of that tradition supporting Boris Johnson (“BJ”). In the circumstances I was keen to understand how X had arrived at that destination.

I tweeted a summary of X’s view last night but want to address (1) X’s logic in more detail and (2) some of the responses to my tweet.

The headline was that X believed BJ was the best way to counteract the threat from the Brexit Party. Although X was a Remainer – and believed BJ could pivot to supporting a second referendum – X was also prepared to contemplate what I understood to be a managed No Deal as an alternative to the Corbyn Government that X saw as being the natural consequence of not meeting the Farage threat.

Most of my tribe will likely have our own views about the damage a “managed No Deal” will do. And they are likely to differ sharply from the near equanimity of X. I certainly said so to X. But what I wanted to focus on is what lies on the other side of the balance for X: the fear of a Corbyn government.

X’s concern – and I reiterate that the dinner was unusually frank and honest – was that Corbyn’s would be no ‘normal’ Labour Government. And because of that, keeping Corbyn out had an importance of a greater order.

X elaborated little on why X believed that keeping Corbyn out was so important but I understand, and have some sympathy with, X’s basic point. I worked as a tax advisor to Ed Miliband’s Labour Party and have also advised McDonnell but I have no ambitions to be part of a Labour Government. This means I have no need to be otherwise than frank in giving some colour to what I understand to be X’s concerns. (I should say that what follows is what many of my tribe, including some Labour MPs, say privately about a Jeremy Corbyn Government.)

There is a narrative on some parts of the Left that sees, or finds it useful to portray, a putative Corbyn Government as coming from a moderate European social democratic tradition. But I think, and understood X to think, that narrative is wrong, and sometimes disingenuous.

What is my evidence for saying that? Here are the headlines.

In unguarded moments Labour talks about having the desire to effect an “irreversible” change in the country. That is uncomfortable language to use in a democracy. But more than that: we don’t know what that irreversible change looks like.

Most other countries have proper constitutions but the only higher law to which the UK is presently subject comes from the EU. It offers some constraints on some actions that step outside our collective European norms. Those constraints are limited by the fact that the EU is only able to constrain us where we have permitted it to do so but they do operate with greater intensity in the field of economic policy.

Labour’s leadership is anxious that we should leave the EU. And I find it hard to rationalise this otherwise than by reference to the fact that it wants to jettison the constraints that the EU represents; it wants unlimited power to remake the country. Labour says we need to leave the EU to jettison rules on state aid. But there is nothing in Labour’s 2017 manifesto that EU law would prohibit.

What specific actions does Labour believe EU law would constrain? What more does Labour have planned that it will not come clean about? Before we usher in “irreversible” change, are we not entitled to know what it looks like?

There are, of course, compelling counter-narratives to to the narrative that a Corbyn Government would have unconstrained power to effect irreversible change to unstated ends. Perhaps the most powerful is that he would be limited by the realities of Parliament democracy, a pluralist Labour Party, and the lack of a manifesto mandate. And I suspect X’s analysis, ultimately, understates the limitations imposed by these practical constraints. But I wouldn’t pretend to be completely unsympathetic to it.

More generally X also believed that it was possible to ignore BJ’s work as a paid rhetorician and discover in him the more socially liberal Tory who was London mayor. You’ll have your own view about that but I wonder whether X was really persuaded by the argument.

On the available evidence (purely hypothetically because I will vote for neither) I would choose a Corbyn Government over a Johnson one. But the above is the case, as I understood it, made by X, a senior Tory politician not impossibly far from my own tribe, for the alternative.

An Amendment to the Cooper Letwin Bill

What follows is a draft clause for the Cooper/Letwin Bill which puts into the hands of Parliament the in extremis decision whether to revoke or No Deal.

*          Duty to seek the consent of the House of Commons to leave the EU without a withdrawal agreement

(1)        Subsection (2) applies if, at midday on the House of Commons sitting day immediately prior to the day when, by virtue of Article 50(3) of the Treaty on European Union, that Treaty and the Treaty on the Functioning of the European Union would cease to apply to the United Kingdom:

(a) no withdrawal agreement has been ratified in accordance with section 13 of the European Union (Withdrawal) Act 2018; and

(b) no agreement has been reached under Article 50(3) of the Treaty on European Union to extend the date at which the Treaties shall cease to apply to the United Kingdom.

(2)        Her Majesty’s Government shall immediately put a motion to the House of Commons in the form set out in subsection (3) following.

(3)       The form of the motion for the purposes of subsection (2) shall be:

“the House agrees to leave the European Union without a Withdrawal Agreement.”

(4)        If the House of Commons does not approve the motion at subsection (3) above, Her Majesty’s Government must immediately notify the European Council that the notification given by the United Kingdom under Article 50(2) of the Treaty on European Union, of its intention to withdraw from the European Union, is revoked.

***

It is clear from the Business of the House Motion of 3 April 2019 that amendments made in the House of Lords can be considered in the Commons on their return.

The Cooper-Letwin Bill (extended edition)

What follows is an extended version of an article I wrote for the Guardian on 2 April 2019.

***

When you break up with someone you love all you can see are the things that are not her. Not her jokes, not her smile, not her taste, and so on. Anyway, the last three years have been a bit like that, constitutionally speaking. The pervading all around is the country that we no longer are – pragmatic, competent, careful, vaguely sensible. All you see is poignancy.

I say this because of – as you do if you’re a lawyer – the Cooper-Letwin Bill. Those same qualities we once associated with the country were their very brand-values. Perhaps a bit boring – perhaps a bit careful – but y’know, competent. But sadly their Bill is everything we and they no longer are. Technically it is the Swiss cheese of legislation – full of holes. And even if you forgive them that it achieves little or nothing of substance. In fact it’s worse – it’s a dangerous distraction from a very real crisis for the country.

Let me explain.

What the Bill wants to do is give Parliament the right to force the Prime Minister to ask for an extension of time and the right to dictate how long an extension she should ask for. That seems like a sensible enough ambition, right? Modest but desirable. And there is an important balance to be found – if you’re trying to force legislation through Parliament in the face of a Government that you assume is hostile and a House struggling to agree on anything – between legislation that is sufficiently modest to attract the support of a majority and sufficiently ambitious as to actually be useful. That’s no easy balance – I know because I’ve tried and failed.

But this Bill gets that balance profoundly wrong. Let me quickly run through some of the criticisms.

The Bill was published today and the idea is that tomorrow the Commons will carve out Parliamentary time for it to pass through the Common and even – if all goes to plan – start its progress though the Commons. Let’s assume, ambitiously, it can clear the House of Commons on Thursday and the House of Lords on Friday and receive Royal Assent the same day.

The first stage mandated by the Bill is that, the day after the Act receives Royal Assent, the Prime Minister must move a motion inviting the PM to seek an extension of time until such date as she wishes (but with which MPs can disagree). Does the Bill envisage Parliament will sit on Saturday or Sunday? We don’t know. Let’s assume the motion is moved on Monday.

If that motion fails the Bill is defunct; that’s it. More damaging would be if it passes.

The Bill is silent as to when the PM has to ask for an extension of time. And if she will not contemplate extending beyond 22 May 2019 but Parliament has forced her to ask for one until 31 December 2019, what then? Could she sit on her hands? In practice she could.

But assume she makes a request the next day, Tuesday. The EU Council is not actually meeting until 10 April 2019. But it might agree to hold an emergency meeting and get back to us on Wednesday: “Yes you can have an extension – but we think you need time to get over your national psychodrama and so we’ll extend until when the transition period would otherwise have extended – 31 December 2020 – and only if you hold European Parliamentary Elections.” What then?

Well, the Bill is completely silent as to what happens if the EU imposes – as it has signalled it would – conditions for such an extension. Inexplicably the Bill makes no arrangements for dealing with that scenario. And even if the EU came back to us without any conditions for an extension – highly unlikely because EU law seems to require that we hold those elections – but just offering an extension to a different date to the one we’d asked for the Bill completely falls apart. All it says is that the PM has to move another motion in which the House again agrees to the Prime Minister seeking an extension of time – which makes no sense at all.

At this stage we’re at Thursday and we leave the EU without a deal on Friday. How on earth – in practice – do we resolve these unanswerables in two days? And what happens if the EU says a flat ‘no’ to an extension – or the conditions are unacceptable to Parliament? What happens in either of those worlds? The Bill maintains a lofty silence.

It’s not uncommon for Parliamentarians to put forward poorly drafted Bills. Legislative drafting is a difficult exercise. But the real problem with this Bill is not that it has some gaping holes in it. The real problem is that it’s a sideshow.

We’ve taken almost three years to fail to decide what we want – how are we going to move forward? If we want a referendum, what is that referendum on – a question that the confirmatory public vote motion turned a blind eye to? If Parliament won’t agree to a withdrawal agreement then the only options left are No Deal and Revoke – who gets to make that decision (a question this alternative to the Cooper-Letwin Bill seeks to answer)?

These are the real questions. The country we once were – and the Parliamentarians they once were – would have faced up to them. But the Cooper Letwin Bill is an awful, awful distraction. I suppose I should find it poignant. But instead, when I think of the consequences for millions of people whose lives will be profoundly damaged by No Deal and who are betrayed by the incompetence of those they trusted, it makes me furious.

 

 

The European Union (Parliamentary Sovereignty) Bill

What follows is a draft Bill to ensure that Parliament – rather than the Government – controls the key remaining questions governing the United Kingdom’s proposed departure from the European Union.

Please add your suggestions for drafting with comments. I will monitor those suggestions and make changes accordingly.

***

European Union (Parliamentary Sovereignty) Bill

A

BILL

To

Make provision in connection with the United Kingdom’s proposed withdrawal from the European Union.

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows:—

 

1          Obligation to seek an extension of time

(1)        Subsection (2) applies if, at midday on the second last Day before the relevant day, no withdrawal agreement has been ratified in accordance with section 13 of the Withdrawal Act.

(2)        Her Majesty’s Government shall immediately seek the agreement of the European Council under Article 50(3) of the Treaty on European Union to extend the date upon which the Treaties shall cease to apply to the United Kingdom

2          Duty to seek the consent of the House of Commons to leave the EU without a withdrawal agreement

(1)        Subsection (2) applies if, at midday on the last Day before the relevant day, no agreement has been reached (pursuant to section 1 above) to extend the date upon which the Treaties shall cease to apply to the United Kingdom

(2)        Her Majesty’s Government shall immediately put a motion to the House of Commons in the form set out in subsection (3) following.

(3)       The form of the motion for the purposes of subsection (2) shall be:

“the House agrees to leave the European Union without a Withdrawal Agreement.”

(4)        If the House of Commons does not approve the motion at subsection (3) above, Her Majesty’s Government must immediately notify the European Council that the notification given by the United Kingdom under Article 50(2) of the Treaty on European Union, of its intention to withdraw from the European Union, is revoked.

3          Duty to hold an Inquiry under the Inquiries Act 2005

(1)        This section applies where the notification given by the United Kingdom under Article 50(2) of the Treaty on European Union of its intention to withdraw from the European Union has been revoked pursuant to section 2(4).

(2)        Where this section applies a Minister of Her Majesty’s Government shall cause an inquiry to be held under the Inquiries Act 2005 into the question whether a model of a future relationship between the United Kingdom (outside the European Union) and the European Union would be likely to be acceptable to the European Union and could reasonably be expected to have majority support in the United Kingdom.

(3)        Where the result of the Inquiry is that there is such a model, Her Majesty’s Government shall make all necessary arrangements for the holding of a referendum on the question whether the United Kingdom should leave the EU and negotiate that model or remain in the EU.

(4)        The Inquiry under subsection (2) shall commence within three months of any revocation pursuant to section 2(4).

4          Exit day in the Withdrawal Act

Section 1 of the Withdrawal Act shall not have effect until the earlier of:

(a)        the ratification of a withdrawal agreement in accordance with section 13 of the Withdrawal Act; or

(b)        the passing of a motion under section 2(3) above.

5          Continuing effect

The obligation in section 1(2) – and the consequential obligation under section 2 – shall apply on every occasion on which the condition specified in section 1(1) is satisfied.

6          Interpretation

For the purposes of this Act, references to:

a ‘Day’ are to a House of Commons sitting day;

the ‘relevant day’ means the day when, by virtue of Article 50(3) of the Treaty on European Union, that Treaty and the Treaty on the Functioning of the European Union would cease to apply to the United Kingdom in the absence of the entry into force of a withdrawal agreement;

the ‘Treaties’ are the Treaty on European Union and the Treaty on the Functioning of the European Union;

‘withdrawal agreement’ has the meaning given in the Withdrawal Act; and

the ‘Withdrawal Act’ means the European Union (Withdrawal) Act 2018.

7          Extent, commencement and short title

(1)        This Act extends to England and Wales, Scotland and Northern Ireland.

(2)        This Act comes into force on the day on which it is passed.

(3)        This Act may be cited as the European Union (Parliamentary Sovereignty) Act 2019.

The Cross-Party Revoke or No Deal Motion

This is the motion:

If, on the day before the end of the penultimate House of Commons sitting day before exit day, no Act of Parliament has been passed for the purposes of section 13(1)(d) of the Withdrawal Act, Her Majesty’s Government must immediately put a motion to the House asking it to approve ‘No Deal’ and, if the House does not give its approval, Her Majesty’s Government must ensure that the notice given to the European Council under Article 50, of the United Kingdom’s intention to withdraw from the European Union, is revoked in accordance with United Kingdom and European Union law.

It is sponsored by a cross party group of senior MPs from the Conservatives, Labour, SNP, TIG, Lib Dem, and Plaid Cymru.

And what it says, stripping away formality, is: if all other alternatives have fallen away, such that the only options left open to the United Kingdom are No Deal and Revoke the choice between the two is one that Parliament rather than the Prime Minister must make.

And it should command considerable cross-party support.

For Conservative MPs it makes good on the promise that the Prime Minister made to the House of Commons yesterday:

“unless this House agrees to it, no deal will not happen.”

For Labour MPs it offers the prospect of delivering on their 2017 Manifesto which stated:

Capture

And Labour has continued to ask the Conservative Party to rule out No Deal.

The Motion should also be acceptable to supporters of the current draft of the Withdrawal Agreement – or some other version thereof such as Norway + or Labour’s preferred withdrawal agreement. It leaves those options available if Parliament approves them – it only applies if they fall away.

Nor does it preclude a general election. Because it applies on the penultimate day before exit day – which is a moving target that depends on what we are able to agree with the EU Council – it leaves the door ajar to a General Election.

But most of all, it should appeal to democrats. The decision of generational importance for the United Kingdom – between Revoke and No Deal – ought to be one for the representatives of the People in Parliament, and not for the Prime Minister, still less the Prime Minister of a minority Government. And this point is all the more important when one appreciates that Parliament has previously voted to reject No Deal.

No constitution founded, as ours is, on the bedrock of the supremacy of Parliament, should contemplate a Prime Minister taking a decision such as this in the face of a clear majority of MPs.

 

We have one shot at revocation. Here’s how we take it

Picture this.

It’s Wednesday next week and Theresa May has once again failed to get her deal through Parliament – perhaps the Speaker has made good on his promise to rule it out of order or perhaps MPs have rejected it a third time. So she’s not in a position to meet the conditions imposed by the EU for an extension of time.

Let’s stop the clock here and take a look around.

Our options have shrunk to two. There is no time for a referendum. There is no time to negotiate some magical new deal that had eluded Parliament hitherto. There is no time left for a General Election. So our choices are either to leave with No Deal or to Revoke.

Revocation – cancelling Brexit – returns us to where we were before we triggered Article 50. All of the special benefits – the rebate, the opt-outs, the derogations – that we had negotiated for ourselves over the years are ours to keep. And the immediate outcome – remain – is supported, according to all recent polling, by an overwhelming majority.

What’s more, the choice whether to revoke is entirely for us. We don’t need the permission of the EU. The decision over the future of the United Kingdom rests where it should: in our hands.

And Parliament has already voted to reject No Deal.

So what does the Prime Minister do?

In the world I have described, where the sunlit uplands have vanished to be replaced by what every neutral economic forecaster sees as our economy tumbling over the cliff edge of No Deal, and with serious medicine shortages in the offing, I think she would put the question before Parliament. No Prime Minister would choose further to weigh down her legacy as the person who inflicted No Deal on the people with the additional millstone of having done so in the face of the clearly expressed will of Parliament.

In these circumstances, for her to choose No Deal would be the act of a dictator. It lacks any sort of mandate and would defy the clearly expressed will of Parliament. It would be an act from which democracy in the United Kingdom would take lifetimes to recover. And I do not believe she would do it.

I believe she would choose to put the question before Parliament. Thirty three long months after the referendum it would at last be ‘make up your mind time’ for MPs.

What then?

Revocation leaves open the door to a conversation about what we really want our country to be – the conversation we are so often really having when we think we’re talking about Brexit. Revocation does not rule out re-notifying in the future – I do not think there is any serious doubt about this – so long as the decision to re-notify is independent of the decision to revoke. I have discussed this in more detail here.

It also seems to me that the PM could do it. I do not believe – although there are other views – that if revocation by the PM was challenged a court would decide it required an Act of Parliament. I have discussed this in more detail here. If this is right, revocation requires no formality. It could be on crested letterhead, by text message or even carrier pigeon, right up until the last second before we leave on Friday.

But will MPs choose it?

It has always been clear to me that MPs could only choose revocation in an emergency. But if they were asked that question in an emergency – when all other options have vanished, when they were peering over the precipice – I believe they would choose it over No Deal. But only if asked it at the right time.

We will get only one shot.

 

To add your name to the Government hosted petition please click here.

To email your MP please click here.

To support the work of the Good Law Project, which established our right unilaterally to revoke, please click here.

 

Legal Advice on a General Strike

In December, I published a piece arguing of No Deal that:

For the hundreds of thousands who will lose their jobs this is no joke; to save our democracy this is no drill; it is no rehearsal for the sick and the vulnerable who will suffer if the government’s planning fails.

If the government will not listen, if it refuses to recognise the supremacy of parliament, we must have a general strike.

I do not write to make that case again here. However, it is of the very nature of a General Strike that it is a response to multiple failures of the institutions of Government and the State. And, unsurprisingly, the ability to deliver a General Strike is closely constrained by the law.

With that in mind, I asked Bruce Carr QC to advise on whether and how such a thing might happen. Mr Carr was appointed by the Government in 2013  to lead an Independent Review of the Law Governing Industrial Disputes. He is a, if not the, pre-eminent trade union lawyer presently in practice.

His advice follows. If you are willing and able financially to support activities such as these please do so here.

***

RE: A GENERAL STRIKE AS A RESPONSE TO BREXIT

OPINION

  1. As the current deadline of March 29 approaches and the prospect recedes of a deal being concluded under which the UK continues some sort of relationship with the EU, the attention of many has turned to how to respond to a disorderly ‘no deal’ Brexit. One suggestion of has been that there should be some form of ‘general strike’ in order to show the strength of feeling across the country and as a means of forcing the government to re-think its strategy (such as it is). If this idea gains traction, it seems highly likely that at least some affected employers will wish to take action in response to it. The question then arises as to whether the calling of a general strike would be lawful and if not, what might be the response of (at least some) employers?
  2. It may be helpful at this stage to set out a few basic legal principles which are relevant to the taking of strike action. A strike as most of us understand it – and as it is defined in section 246 Trade Union & Labour Relations (Consolidation) Act 1992 – involves a concerted stoppage of work. It is the concerted – or collective – aspect of the action which brings pressure on the employer and forces them to the negotiating table. From an individual’s perspective however, the legal analysis begins with that person’s contract of employment. Strike action will invariably involve a breach of contract by a worker – he or she has agreed under their contract to work at particular time – by taking strike action he/she has broken that obligation. The breach may be sufficient to justify termination of the contract (dismissal) but will certainly allow the employer to make a deduction from wages. However, such actions do not happen out of the blue and there is invariably a call for industrial action which leads the collective withdrawal of labour. The next issue therefore is what are the legal consequences for the person or organisation that calls for such action?
  3. A call for industrial action will generally involve committing the tort of inducement to breach of contract. If A calls on B to withdraw his or her labour and this causes loss (or potential loss) to B’s employer C, C will have a cause of action in tort against A for inducing the breach of contract by B. C’s remedies will include an action for damages or an injunction, part of which may require A to take steps to withdraw the call or inducement. For the tort to be established, it must be shown that A knows that he is inducing a breach of contract and that the inducement was an operative cause of the breach – in other words, that the unlawful act (the breach of contract) would or might not have been done but for the intervention of A.
  4. This (common law) position is modified in relation to trade unions who would otherwise obviously face inevitable bankruptcy if they called on their members to take strike action – potentially unlimited claims for damages would soon deplete their financial resources. To prevent this from happening and to allow worker to take industrial action, immunity is created in relation to actions based on what are known as ‘the industrial torts’ – of which inducement to breach of contract is by far the most common. The immunity is found in section 219 TURLCA which provides that:

 “an act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only – (a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance.” (emphasis added)

  1. There are two important points to note from this extract. The first is that the statutory immunity is not exclusively the territory of trade unions – the section is clear in its terms in that the immunity (when it applies) applies to any person not simply to a trade union. There are however additional consequences which flow in relation to trade unions and which I will deal with below. The second point is that the immunity applies only to actions done “in contemplation or furtherance of a trade dispute”. The question which then flows (and which is answered by section 244 TULRCA) is – what is meant by a trade dispute? The opening words of section 244 are important in that they define a “trade dispute” as being one “between workers and their employer”. There then follows a fairly extensive list of sorts of issues that arise in employment relationships including terms and conditions of employment, matters of discipline and machinery for consultation and negotiation.
  2. Two consequences therefore flow from section 244 and which then feed back into the immunity from suit provided for under section 219 – first, there must be a dispute between workers and their employer. Plainly a general strike called in opposition to the government’s handling of Brexit would not involve (expect perhaps in the case of civil servants – as to which see below) a dispute between workers and their employer. The dispute would of course be one between those taking strike action and those responsible for a potential ‘no deal’ exit from the EU. Indeed there may be many employers who are sympathetic to the cause but who are nevertheless faced with their workers going on strike. Secondly, even if one were to get over the hurdle of the necessary parties to the dispute (worker and employer), a Brexit-inspired general strike would not fit into any of the subs-sections of section 244 as it would not involve terms and conditions of employment or any of the other 6 gateways set out in section 244(1)(b) – (g).
  3. This second difficulty would of course also impact on civil servants who might wish to take such strike action. Although they may be in dispute with their employer and although they are treated as workers for the purpose of TULRCA (by virtue of section 245 – which thus avoids subtle and unresolved questions about the contractual status of those employed by the Crown), the nature of the trade dispute would still mean that it is unprotected within the scope of section 219. Even if one were to try to argue that the strike was motivated by concerns about the stability or terms of their employment post a no deal Brexit, it is highly likely that the dispute would be seen as essentially a political one and therefore not a ‘trade dispute’ within section 244 and thus outside the immunity provided under section 219. There is well-established authority for the proposition that politically motivated disputes fall outside the statutory immunity – see Mercury Communications v Scott-Garner [1983] ICR 74, a case involving a dispute found to be primarily about opposition to the privatisation of telephone network.
  4. The upshot of all of this is that anyone calling for a general strike leaves themselves exposed to a risk of actions in tort based on inducement to breach of contract and in relation to which there is no immunity from suit under section 219. As far as trade unions are concerned, even if there were a means by which the difficulties I have outlined in relation to section 219 could be overcome, they would nevertheless by required to undertake a statutory ballot is provided by section 216 TULRCA. In other words, for a trade union to have immunity from suit, not only must any action be done “in contemplation or furtherance of a trade dispute”, but they must also have conducted a ballot of their membership and achieved a majority vote based on at least a 50% voter turn-out – see section 226 TULRCA.
  5. It is perhaps worth making the point though that an inducement to breach of contract has to be exactly that – an inducement which then operates on the worker so as to cause him or her to desist from working. There is therefore some scope for taking action which falls short of being an inducement – for example by indicating one’s own intended course of action and leaving others to make up their own minds. It can of course still be argued that even an announcement at that level will operate as an inducement but the level of risk could be reduced by making sure that any announcement made it clear that it was not an invitation to others to follow suit and that if they did so they would in all probability be acting in breach of their contracts of employment which might in turn lead to a negative response from their employer. One notes however, that when conducting a ballot for strike action, trade unions are required as a matter of statute, to put a ‘health warning’ on the ballot paper informing their members that strike action will amount to a breach of contract – see section 229(4). Thus it can be inferred that simply telling someone that what they are doing is unlawful does not make an inducement cease to be one. The strategy of leading by undeclared example therefore remains a risky one, particularly if one rolls forward to the potential cross-examination of a striking worker who says that they took the action they did because they saw others publicly announcing an intention to do something similar.
  6. Is there any way of successfully defending an action based on inducement to breach of contract, at least where the inducement is otherwise established? There is, in theory at least, a potential defence based on justification. In OGB v Allen & others [2007] IRLR 608, the House of Lords expressly recognized the existence of such a defence (see for example, Lord Nicholls at paragraph 193). However the scope of the defence remains uncertain and its application to a political dispute such as one based on the government’s Brexit policy, extremely tenuous. In addition, even if one were to run a defence of justification, a defendant’s conduct needs to be justified as against the claimant – see Grieg v Insole [1978] 3 All ER 449. In other words, those calling for a general strike because of what the government was doing or not doing, would have to justify an infringement of the rights of employers who are likely to be wholly innocent of any connection with government policy and who in many cases may in fact be sympathetic to the objectives of their striking workers.
  7. Which of course leads to another potential lifeline for those wanting to take strike action. A legal case, if one is brought, is likely to be instigated by a pro-Brexit employer who is affected by strike action – the owner of a chain of public houses might be one possible example. On the other hand an employer sympathetic to the idea of strike action would not only be much less likely to bring a claim but may in fact go one step further and sanction the absence of his or her employees from work. If therefore the action became less ‘general strike’ and more ‘general shutdown’ the risks to the instigators of the action would be substantially reduced. If therefore the call were therefore one made to both employers and employees to show their dis-satisfaction by ceasing their respective economic activities, then the likelihood of legal action recedes. The call would not be for workers to breach their contract but for workers and employers to show their opposition to a potentially catastrophic government policy. However, whilst there are likely to be many employers who are in line with the opposition to a no deal Brexit, the question of how many would be prepared to allow a shut for a day or more as part of that opposition, remains very much an unanswered one. Such action would be unprecedented in my experience – but then, we are living in unprecedented times.

 

BRUCE CARR QC

Devereux Chambers

 

27 February 2019