Part I: democracy at work

Following a short introduction that provides an exemplary road map to the major arguments and structure of the book, The Democratic Aspects of Trade Union Recognition proceeds in three parts, beginning with the history of the British approach to the legal regulation of trade union recognition, moving to an exploration of different political philosophical justifications of statutory support for trade union recognition, and concluding with a legal analysis and critique of state neutrality approaches to trade union recognition.

In the first chapter, Bogg presents the main elements of Kahn-Freund's interpretation of constitutional pluralism, draws out its connections with theories of political pluralism and then uses this underlying political theory to defend collective laissez-faire against the three main critiques. According to Bogg, the distinctive features of constitutional pluralism endorsed by theorists such as Harold Laski were the commitment to the principle of group autonomy – the autonomy of civil society actors from the state – and the devolution of regulatory tasks to autonomous groups in civil society, such as trade unions. Thus, English pluralism opposed both classical individual liberalism and the Fabian reliance on state regulation. Having demonstrated the relationship between this form of pluralism and collective laissez-faire, Bogg emphasises Kahn-Freund's attention to the form of regulation, and his preference for indirect, over direct, state and legal intervention in society.Footnote ¹ He identifies the following central motifs of collective laissez-faire: the democratic need for trade unions to perform an oppositional role in industry; the protective function of collective bargaining as a process for vindicating workers' rights and interests; the centrality of collective bargaining as a form of interest group bargaining; the risks of participative schemes in diluting unions' independence from management; the inherent democratic inferiority of consultation; and the institutionalisation of conflict through the process of collective bargaining and its potential for securing consensus and equilibrium. Bogg contrasts Kahn-Freund's form of pluralism with the US and Canadian variety that gives the state a more pronounced role in specifying bargaining units and bargaining agents, and enforcing good faith standards in the collective bargaining process. To illustrate this distinction, he refers to Chris Tomlins's two conceptions of collective bargaining in the years before and after the implementation of a legal duty to bargain under the National Labour Relations Act (NLRA) in 1935 in the US. The first is the gesellschaft model of bargaining, in which collective bargaining was regarded as private and unions had mastery over their own jurisdiction, regarded as principals in the bargaining relationship. With the NLRA, unions came to be seen as agents for workers and their legitimacy derived from majority support.

Having identified and defended the distinctive features of collective laissez-faire, Bogg demonstrates its resilience and the principle of group autonomy as a political ideal in the face of the imposition of incomes policies and co-ordinated wage restraint. In the late 1960s, the key issue was how to resolve the tensions either generated or ignored by collective bargaining, which were inflationary pay settlements, sustainable economic growth and gender equity. These tensions led to the demise of the gesellschaft model of collective bargaining by 1965, as third-party industrial relations agencies imposed greater order on bargaining units and bargaining agents. Bogg outlines the juridification dilemma, which was originally articulated by Alan Flanders: greater legal support for collective bargaining would result in greater legal control.

With the collapse of the gesellschaft model, which saw the groups themselves as having exclusive authority to determine the structure of bargaining units and the identity of bargaining agents, the challenge was to develop a sustainable labour law policy. Appointed in 1965, the Donovan Commission, upon which both Hugh Armstrong Clegg and Kahn-Freund sat and to which Allan Flanders presented evidence, had the task of developing a revitalised labour law policy. Bogg divides the period beginning after the Donovan Commission's 1968 Report and ending with the election of Margaret Thatcher in 1979 into three phases: the Commission of Industrial Relations that emerged out of the Labour Government's White Paper, In Place of Strife, which operated between 1969 and 1971; the Conservative Government's Industrial Relations Act, which was based on total juridification and was in place from 1971 to 1974; and the Labour Government's Social Contract era, which included the positive freedoms of the Employment Protection Act (1975) (EPA), from 1975 to 1979. He is careful to avoid imposing a ‘procrustean uniformity’ on the period, teasing out the differences amongst the Oxford school of industrial pluralists and showing how they influenced the Donovan Commission and its report. Bogg characterises Clegg, along with Kahn-Freund, as having a liberal distrust of power, which he contrasts with Flanders's ‘civic republican paradigm’ that was grounded in the idea of an overarching public interest and recognised the social malleability of citizens' preferences. Clegg was a pluralist of the interest group variety, whereas Flanders deplored the sectionalism of the interest group conception of collective bargaining. These different views spawned two approaches to trade union recognition. Bogg also shows how, both between the three historical phases and within the same phase, different state institutions – the government, the judiciary and third party industrial agencies – often pursued distinct and sometimes discordant political agendas regarding the issues of trade union recognition and the duty to bargain. He demonstrates that there was not a linear progression towards juridification, and that the principle of group autonomy led a double life – the erosion of the gesellschaft model when it came to bargaining units and bargaining agents via the Industrial Relations Act and the judicial interpretation of the EPA in support of group autonomy when it came to the duty to bargain.

Although he demonstrates the resilience of collective laissez-faire throughout the period, Bogg also indicates the increasing dominance of a liberal conception of trade union recognition that ‘insisted on the principle of current majority support, measured through a public ballot procedure, as a precursor to the allocation of bargaining rights’ (p. 76). He characterises this model as committed to state neutrality in respect of collective bargaining and to a view of individual preferences as given rather than shaped, contrasting it with a civic republican model, which follows Cass Sunstein (Reference Sunstein1988) in recognising that citizens' preferences adapt to what they think is possible to achieve and to their experiences.

The first Part of The Democratic Aspects of Trade Union Recognition carefully and clearly sets out the competing models of trade union recognition – the individual rights-based liberalism informing industrial pluralism and the civic republican view that is grounded in deliberative conceptions of democracy. In the second Part, Bogg focuses on the key differences between these models. But before moving to his discussion of political philosophy and collective bargaining models, I want to address a claim that Bogg makes regarding the so-called ‘penal clauses’, which would have given the Secretary of State discretionary power to secure both a conciliation pause before a strike and selectively imposed strike ballots. These were proposed by the Labour government in its 1969 White Paper In Place of Strife to regulate the use of economic weaponry by trade unions. Although these proposals were never enacted because of the hostility of trade unions, according to Bogg:

However, given that the subsequent legislative imposition and judicial interpretation of strike ballots have resulted in a profound erosion of trade unions' social power base (Dukes, Reference Dukes2010a), it would have been helpful for Bogg to have elaborated upon his defence of strike ballots as a measure designed to promote civic republican values. There are many varieties of the legal requirement to hold a ballot before industrial action, and even though in theory some might promote democratic deliberation, in practice they might undermine it by chipping away at union power.Footnote ² The devil is in the detail of strike ballot requirements and their administration. As I shall elaborate in the second part of my review, one of the central criticisms of justifications of statutory support for trade union recognition and collective bargaining based upon deliberative democracy is their failure adequately to address prevailing unequal relations of social power between workers and employers.

Part II, which contrasts liberalism and civic republicanism as competing conceptions of Third Way labour law, provides the normative (or political philosophical) heart of the book. In this part, Bogg relies on two ideas that he attributes to Cass Sunstein: adaptive preferences, which was introduced in the first part, and incompletely theorised agreements. The first is the basis for Bogg's critique of political pluralism and his support for deliberative democracy, whereas the second is used to illustrate how shared policy preferences can be informed by different normative positions.

In Chapter 3, Bogg refreshingly and helpfully reminds us that ‘liberalism is a broad and pluralistic tradition that cannot be reduced down to a parsimonious set of unifying principles’ (p. 80). Employing Sunstein's notion of incompletely theorised agreements,Footnote ³ he argues that there are different liberal reasons for specific policy prescriptions and it is wrong simply to assume that neo-liberalism shaped New Labour's labour law reforms. Thus, instead of starting with the assumption that New Labour's approach to collective bargaining and trade unionism was neoliberal in disguise, he interrogates Third Way labour law through a careful reading of policy documents, legislation and practice.

Bogg examines two aspects of New Labour's labour law policy that simply maintained Conservative labour law reforms – the ban on the closed shop and the imposition of democratic requirements on internal trade union affairs. He demonstrates that New Labour embraced a state-neutrality model of the relationship between labour law and trade unions, which confined the state's role to aggregating workers' preferences rather than positively promoting union recognition and collective bargaining as a public good. He convincingly demonstrates that New Labour's reasons for maintaining these elements of Conservative labour law were different from those of Friedrich Hayek, who inspired Margaret Thatcher's reforms to labour law. According to Bogg, Hayek believed that ‘trade unions should be subjected to special restrictions because of the damage they do to free markets’ (p. 89). The distinction between New Labour and neoliberal approaches to trade union recognition and collective bargaining is important because it demonstrates how far prevailing mainstream political opinion has shifted away from considering joint regulation of work to be a public good.

However, even though Bogg distinguishes New Labour's state neutrality stance to trade unions from Hayek's and Thatcher's hostility, it does not mean that he simply accepts that New Labour's industrial relations policy met its express commitment to promoting partnership and other similar communitarian goals. Nor does he accept that a communitarian emphasis on the importance of the relationship between individuals and their communities needs to be traded off against liberalism's commitment to maximising individual freedom and choice. He begins by outlining Michael Sandel's civic republican critique of liberalism's commitments to state neutrality and respect for citizens' autonomous choice on the grounds that the former devalues community and that the latter is based upon a defective idea of the autonomous self. He then shows how some varieties of liberalism, such as Will Kymlicka's cultural market-place, Stuart White's liberal egalitarianism and Joseph Raz's perfectionist liberalism, have responded to Sandel's critique. Bogg concludes that although New Labour's approach to labour law was not neoliberal, ‘it was ill-suited to realising New Labour's avowed Communitarian goals’ (p. 115).

Bogg demonstrates that the distinctive feature of New Labour's approach to trade union recognition is that it is based on the thesis that the state should be neutral in order to respect citizens' capacity for autonomous choice.Footnote ⁴ Thus, for New Labour the law should not be biased in favour of trade union recognition. However, the problem with this position is that it is a form of status quo neutrality that entrenches the common law as the normative starting point and puts unions at a disadvantage. It fails to recognise the legitimate role for the state in counteracting biases in the law and fostering common goods, such as trade unions.

Chapter 4 elaborates and draws on the theory of civic republicanism to offer a normative defence of a robust notion of labour law that is aligned to three values: community, collective self-government and non-domination. Bogg demonstrates the gap between New Labour's civic rhetoric and New Labour's liberal legal labour law reform agenda. He emphasises the centrality of the intrinsic value of community to republican thought, which is ‘based on a view of citizens as social beings encumbered by obligations of solidarity to their communities of belonging, obligations that they have not voluntarily incurred and they cannot simply discard at will’ (p. 119). The crucial point is that communities ‘are constitutive of the very identities of their members’ (p. 119). Communities are also important because they inculcate civic virtues, which is the ‘disposition to further public over private good in action and deliberation’ (p. 119, quoting Burtt, Reference Burtt1990, p. 23). He considers how New Labour conceptualised trade unions as a form of community by:

He concludes that New Labour adopts a bipolar and reductive approach to individual workers and their unions that is characteristic of rights-based liberal individualism.

In the second half of Chapter 4, Bogg elaborates the republican idea of freedom as collective self-government and collective bargaining by contrasting pluralist and deliberative democratic approaches to the issues of allocating bargaining rights and the duty to bargain, and by advocating non-domination as a political and labour law ideal. This chapter is a tour de force in the construction of a positive normative foundation for labour law that is sensitive to unequal social relations of power. Addressing the question of what it means for wage labour to be free in a strong republican sense, Bogg wants to reclaim the old idea of democratic control over economic forces, an ideal that waned and was surpassed by the liberal idea of the equalisation of bargaining strength through collective bargaining. He contrasts the republican view of democratic self-rule with the industrial pluralist vision of unions as an oppositional and countervailing force to management. In the latter view, democracy is regarded in aggregative and interest group terms, which Bogg argues is a far cry from a deliberative conception of democracy in which interests can be transformed.

In Part III, Bogg provides a comprehensive evaluation of the trade union recognition procedure contained in Schedule A1. The evaluation is in three parts and comprises three chapters. In Chapter 5, he sets out two aspects of the US and, to a lesser extent, Canadian approaches to two issues: first, the lawfulness of the parties' tactics during the recognition campaign; and second, union organisational access to the workforce. He then contrasts them with their treatment under the UK statutory recognition procedure.Footnote ⁵ With respect to unfair labour practices, although the Central Arbitration Committee (CAC) has avoided some of the worst aspects of the US approach, Bogg identifies ‘serious weaknesses’ in the ‘design and interpretation of the “unfair practice” provisions’ (p. 186). He also finds that:

Bogg notes that this difference is likely the result of making a third-party tribunal other than the ordinary courts responsible for the determination. However, since the Canadian labour board (a third-party and tripartite tribunal) jurisprudence mirrors that of the US Supreme Court when it comes to union access to workers at the worksite for the purpose of recognition campaigns, it is likely that something other than the institutional structure of the decision-maker is responsible for the difference in approach in the UK. Bogg concludes that although the UK approach ‘has mitigated some of the disadvantages faced by unions in the cultural marketplace, the field of play still slopes decisively in the employer's favour’ (p. 197).

In Chapter 6, Bogg challenges the underlining premise of Anglo-American recognition procedures, ‘that tracking freely expressed private preferences furnishes the legitimate, democratic basis for allocating bargaining rights’ (p. 201), by showing how it is insensitive ‘to a range of distorting factors that affect the formation of preferences’ (p. 201). He argues that ‘adaptive preferences and endowment effects undermine the legitimacy of preference aggregation as a democratic model’ (p. 201) and he weighs the pros and cons of five legal strategies that are potentially responsive to the problem of distorted preference: CAC interpretation of admissibility thresholds to establish union support; expediting statutory certification procedures; promoting voluntary recognition by employers; staged recognition through the provision of consultation rights to representative independent unions that do not have majority support; and adoption of an organising model by unions. Although the law could do more to make the civic task of organising unions easier, Bogg concludes that in the final analysis ‘the organizational fate of trade unions will depend upon the preparedness of individual workers to undertake the civic task of trade union activism in the workplace’ (p. 244).

In the final chapter, Bogg provides a deliberative political theory of collective bargaining and addresses the criticism that deliberative accounts fail to address either conflicts of interest or social relations of unequal power. His focus is on the duty to bargain in good faith, which he would bolster with a robust right to strike, and he concludes by proposing six reforms that would better align trade union recognition and collective bargaining with a commitment to deliberative democracy. He begins by questioning whether a pluralist conception of politics as interest aggregation is a legitimate basis for awarding union recognition. Although he acknowledges that this pluralistic conception is intuitively appealing because it is sensitive to individual preferences and appears to be based on liberty and equality, he argues that this consumer notion of democratic legitimacy rests on a thin conception of preferences, which is driven by external constraints rather than endorsed autonomously by citizens. He describes the underlying tension between two conceptions of politics in the following terms:

Bogg responds to the criticism that deliberative democracy embraces a unitary model of interests in the employment relationships. Moreover, his six reform strategies, namely constructive mediation by third-party agencies, expanding the bargaining agenda, expanding what constitutes employer interference, a deliberative conception of the right to strike, national and sectoral bargaining structures, and imposing an active duty to bargain, are designed to give collective bargaining some deliberative heft.