Judicial language and restricting the right to strike: an historical perspective

There is a long-established tradition of cross-fertilisation between labour historians, writers on industrial relations and labour lawyers in using historical methodologies to formulate a critical understanding of the development of the law regulating trade union behaviour. The types of insights that can be gained through synthesis of these disciplines is exemplified by works such as 'The Right to Strike: From the Trade Union Disputes Act 1906 to a Trade Union Freedom Bill 2006', edited by Keith Ewing and published by the Institute of Employment Rights. My own contribution to using history to produce a critical analysis of current law is to focus on the language used by judges, in the past and in more recent times, in judgments concerned with constraining the organisation of industrial action. My central contention is that the language used in the development of common law liabilities and/or restrictively interpreting pro-union legislation has created a legal mystification of industrial relations. This mystification percolates into the public domain via statements from politicians and the media which are derived from judicial language. This process proved to be particularly important at the end of the nineteenth century and during the 1960s and 1970s. The primary purpose of this paper is to demonstrate the ideological role played by this legal or judicial mystification in helping to create an environment in the 1980s and 1990s in which governments could enact legislation that prevents trade unions from effectively protecting the interests of those whom GDH Cole termed the 'common people'.