This is one of the most interesting, stimulating and challenging books on labour law to have been published in recent times. It is a study of different approaches by the State to promoting collective bargaining between employers and trade unions, and its originality lies in the successful consideration of this question through the prism of political theory. The study spans a long period, from the work of Kahn Freund in 1954, through the deliberations of the Donovan Royal Commission in 1965–1968, through the various strategies for legal intervention in 1971, 1975 and 1999.
The outcome is a masterly analysis in which the author shows great skill in lucidly combining a detailed understanding of labour law in the United Kingdom and the United States, with deep political theory. In addressing a core problem of labour law in many Anglo-American labour systems, Dr Bogg applies the work of leading liberal theorists (such as Kymlicka, White, Sandel, Raz and Pettit) to produce an important volume that deserves a fuller response than the constraints that a book review typically permit. Here I will dwell on three core issues.
The first of the three issues addressed here is the author's review in chapter 2 of the principle of ‘collective laissez-faire’ as the foundation of modern British labour law scholarship and practice. The principle is rigorously re-examined in the light of criticism from scholars such as Collins, Davies and Freedland, and Howell (and assessed to be resilient in chapter 3). Dr Bogg makes a powerful case in defence of Kahn Freund against his critics, though I still doubt that “collective laissez-faire” provides a satisfactory account of the role of the State in the development of British labour law.
Partly I think this is because the explanation of labour lawyers continues to be sought in labour law, whereas in fact the role of the State is better understood in administrative law. From 1917 onwards there has been pivotal intervention by the State to build (and dismantle) collective bargaining structures. What is important is the role of the State, not the nature of the institutions used by the State for the purposes of intervention. The real story of the twentieth century is thus not a legacy of “collective laissez-faire”, but a legacy of State power grounded in law, being used to create collective bargaining and equivalent arrangements, which at one time covered 86% of working people. That could not have happened without an active State.
The second issue to which I would draw attention is the elegant discussion in chapters 3 and 4 in which the author seeks to create a new framework for labour law generally and collective bargaining in particular. Here the author takes issue with those – such as Smith and Morton – who criticise the Labour government's neo-liberal agenda, by claiming that while it may be “liberal”, it is not “neo-liberal”. But nor is it sufficiently full bodied liberalism, the author attracted to a version of liberalism based in ideas of “civic republicanism” as “an alternative liberal reform agenda that is more supportive of trade union rights” (p. 80). This “republican labour law” is said to reflect three core values, each of which is considered in some detail – community, collective self-government and non-domination (p. 118).
This illuminating and thoughtful journey through territory unfamiliar to the labour lawyer prepares the ground for a powerful critique of the statutory recognition procedure introduced by the Blair government, where we find “the liberal centre of gravity exercising a powerful hold over legal reform agendas” (p. 153). The story told in chapters 5 and 6 is one of weak legislation and an often timid regulator (failing to uphold a single complaint of unfair practices by employers in an environment where the use of anti-union lawyers and US style “labour consultants” now appears rampant). No surprise then that collective bargaining coverage continues to decline. Yet although the author compares the British legislation favourably with its US counterpart (chapter 5), and suggests ways by which it could be improved (chapter 6), it is not clear to me that any significant change will take place if the burden in the final analysis is to “depend upon the preparedness of individual workers to undertake the civic task of trade union activism in the workplace” (p. 244).
Which brings us to the third issue, namely whether the liberal family in any of its forms can provide a way forward for labour law and collective bargaining. The effect of liberalism (even in its strongest form of “civic republicanism”) may be to condemn collective bargaining to be no more than a representational activity in which workers seek to overcome “the inescapable limit on the workplace as a site of civic engagement” (p. 122). So far as I can tell, no system of representational collective bargaining of this kind has ever realised the objectives of republican government, for a host of reasons which are known in every country where this model of labour law is practised, and many of which are carefully documented in this detailed study. Law is not sufficient to deal with the power of employers, while workers' demands compete with other liberal values that reinforce the power of the employer.
Trade union revitalisation thus relies not on the ambitions or structures of even a radical member of the liberal family, but in the institutions and structures of social democracy (which is also a big family with many varieties of member). At the social democratic (but not liberal) centre of gravity, however, is the role assigned to social groups as regulatory (as well as representational) institutions. In the context of collective bargaining this means collective bargaining at the level of the sector rather than the enterprise, helping to ensure saturation coverage of collective agreements, on a scale last encountered in this country during the misnamed “collective laissez-faire” epoch. The regulatory role of collective agreements also enhances the representational role of trade unions, as employer resistance at the workplace diminishes. So although trade union recognition legislation continues to be necessary, its regulatory burden is greatly reduced.
Dr Bogg thus raises huge questions: What is the role of the State in labour law? What do we call State intervention when it is not by means of instruments that labour lawyers are prepared to recognise as law? What techniques are available to the State to support/promote collective bargaining? These are not simply ethereal debates for the rarefied environs of the labour law classroom. In order to be successful, trade unions need State support, which means not just removing legal restraints and the creation of a benign environment. They also need more positive forms of intervention of the kind found in the so – called “collective laissez-faire” phase, which paradoxically was the era when State power was used most actively to promote trade union activity. It has never been reproduced, despite the subsequent introduction of statutory measures designed to support trade union activity.
Nor ought the debates about trade union decline be a matter of concern only to a dwindling band of labour law scholars. We all need trade unions to succeed: collective bargaining is essential to protect vulnerable workers from exploitation, to reduce the gender pay gap, and to protect us all from the neo-liberal nonsense currently being peddled in the European Court of Justice. But above all, collective bargaining is necessary to reduce the shameful levels of inequality that now blight this country, inequality that threatens the very assumptions on which our fragile democracy is based, with the subject of Dr Bogg's outstanding book having consequences well beyond the workplace relationships to which it is principally addressed. Along with the rule of law, universal suffrage and fair elections, comprehensive collective bargaining coverage is an essential building block to self-government by a free and equal people.
There can be no democracy without equality, and there can be no equality without the regulatory role of collective bargaining.
