Whither British labour law crisis, what crisis? an historical perspective on the juridification of British industrial relations

This paper is largely historical in that it reflects on the reasons why the British system of industrial relations was transformed from a system rooted in voluntarism or legal abstentionism to one which became increasingly juridified from the 1960s onwards. Juridification can be understood as a combination of judicial intervention in the arena of industrial conflict and the enactment of substantial legislation in areas previously left to employment contracts between employers and their employees and to non-legally enforceable collective agreements between employers and trade unions. The paper also involves critical reflection on Kahn Freund’s conception of collective laissez-faire. It is argued that the concept of collective laissez-faire failed fully to take into account the role that judges have played in the British system of industrial relations. Judges have been able to use the common law to intervene in or disengage from involvement with industrial relations in line with the needs of employers and the state to foster responsible trade unionism whilst simultaneously seeking to restrain trade union militancy. To substantiate this contention the paper focuses on the language used by judges, in the past and in more recent times, in judgments concerned with regulating the organisation of industrial action. In Britain, juridification on the part of the judges has been accompanied and implemented by what can be characterised as a process of judicial mystification of industrial relations. The other main contention of the paper is that, whatever the deregulatory preferences and instincts of the current government, it is not possible for governments to turn back the clock by creating a new form of laissez-faire which eliminates employment rights – be they individual or collective – from the workplace. This is partly because the juridification of workplace conflict must remain the State’s preferred mechanism for the resolution of employment disputes; and partly because, in contrast with the past, European law provides an important constraint on a government’s ability to deregulate the employment relation. The paper concludes by arguing that the key role for progressive employment lawyers today is to demonstrate the negative consequences of restricting employment rights whilst continuing to promote the case for more extensive and effective collective and individual rights in the future.