KEITH EWING on why Britainâ€™s lurch to the right must be fought â€“ and not just in court
Â ThereÂ is probably little left to say about the politics of the Trade Union Bill that has not already been said.
Since its publication on Wednesday, the response to the Bill has been overwhelming and the condemnation profound.
It is a brutal measure that will dominate the discussions and debates this weekend at Tolpuddle, as thousands of trade unionists assemble to commemorate the courage of the Martyrs.
Clearly part of a strategy to reduce incomes and promote inequality, the Bill comes on the back of the destruction of employment rights by the coalition government, and the announcement at the weekend that the Tories are negotiating an optâ€“out from the EU Social Chapter.
But apart from irresponsibly playing to the politics of mutual loathing, the bigger picture here is the eclipse of democracy and the rule of law in modern Western societies.
The Greek people saw their democratic wishes trampled upon by the troika.
The British people have seen what has been in effect an extreme right-wing coup dâ€™etat by the ballot box.
This is a government of doubtful democratic legitimacy: it may have won a majority of seats in the House of Commons, but it won the support of less than a quarter of those eligible to vote, and the votes of less than two-fifths of those actually voting.
We should never, ever forget that this is a government that speaks for less than one in four people (the 24 per cent).
Having won power by dubious means, the Tories are now set on maintaining power by even more dubious means, stripping away the voices of opposition, in order to maintain an illegitimate grip on the state.
On the back of the Gagging Bill designed to eliminate electoral opposition, we are now witnessing a politically motivated attack on the BBC, the inconvenient purveyor of balanced journalism; the malicious and potentially fatal wounding of the Labour Party, by cutting off its supply of income; and a further blow against trade unions.
The requirement that trade union members should â€ścontract inâ€ť to pay the political levy will change the current system, whereby everyone pays in accordance with the democratic wishes of the union, unless they â€ścontract out.â€ť
The Bill effectively changes the default position.
Under the existing law trade unions must ballot every 10 years for authority to maintain a political fund.
Once the authority is obtained by a majority vote, the presumption is that everyone is bound by the wishes of the majority; under the Bill the default position is that no-one will be bound by the wishes of the majority.
We have been here before.
The 24 per cent carry the loathsome torch of the General Strike Tories, who in 1927 also moved to crush the trade union political voice.
The General Strike gave them the opportunity to demand reparations that had been long in the preparation, including the move from â€ścontracting outâ€ť to â€ścontracting in.â€ť
The then Tory Minister of Labour was honest about Tory ambitions, writing in 1924 in a secret Cabinet memo that â€śthe major part of the outcry against the political levy is not motivated by a burning indignation for the trade unionist, who is forced to subscribe to the furtherance of political principles which he abhors.
â€śIt is based on a desire to hit the Socialist party through their pocket â€¦ we should not delude ourselves as to our intentions.â€ť
We can at least admire the candour.
The hawks â€” led by Churchill â€” nevertheless got their way and the law was changed, until it was changed back by the Attlee government in 1946.
Fresh proposals to restore â€ścontracting inâ€ť were considered by the Thatcher government in 1984.
The Cabinet records reveal that the idea was vetoed by Thatcher herself for fear of its impact on the democratic process, and in particular its implications for the Labour Party.
Such is the measure of the extremism of the 24 per cent that they should so airily dismiss what even Thatcher understood about liberal democracy.
As was recognised by Thatcher, a move to â€ścontracting inâ€ť would â€ścreate great unease and should not be entered into lightly.â€ť
But the attack on democracy that the threat to the political levy represents is not the only cause for â€śgreat unease.â€ť
If we are living in an increasingly post-democratic age of which the Trade Union Bill is a symptom, we are also living in an age in which the rule of law is treated with contempt.
Governments no longer feel a desire to be burdened by legal restraints, while also no longer feeling a desire to enable workers to enforce what limited rights they have been left with.
So just as the Trade Union Bill reflects the power of the 24 per cent, so it reflects the willingness of government to play fast and loose with its legal obligations.
These legal obligations include international treaties, which the British government was failing to comply with even before the Trade Union Bill was published.
The treaties include ILO Convention 87 and the Council of Europe Social Charter of 1961.
The latter was the first international treaty to recognise the right to strike, which the British government (ironically a Tory government) was the first to ratify.
The importance of these treaties is not to be underestimated.
The Labour governmentâ€™s Constitutional Reform Act 2005 refers to the â€śconstitutional principle of the rule of law.â€ť
According to one of the most celebrated British judges of modern times (Lord Bingham), this means that the state â€śmust comply with its obligations under international law.â€ť
The father-in-law of a prominent Tory MP, Lord Bingham did not think this â€śproposition to be contentious.â€ť
Nor would many lawyers, though it is one which this Tory government has an extraordinary difficulty in accepting.
Earlier this year, the European Social Rights Committee found that the UK was in breach of 10 obligations in the Social Charter, including the right to strike, which was said to be â€śexcessively limited.â€ť
That was before the Trade Union Billâ€™s additional restrictions, with minimum turnout requirements, minimum ballot thresholds, two-week notice periods, additional reporting obligations, fresh restraints on picketing, and so on.
It is inconceivable that these additional burdens will not add to the litany of violation.
The government claims that the new restrictions are fully compatible with the European Convention on Human Rights.
That remains to be seen as unions consult their lawyers with a view to challenging these various measures in the European Court of Human Rights, if of course Mr Gove continues to allow such challenges to be made.
But even if such a claim were to succeed (and it is not implausible), litigation will take years, well past the next general election.
In the meantime, our democracy (or what is left of it) will be dominated by the 24 per cent, unless something or someone stirs the sleepwalking 76 per cent.
- Keith Ewing is professor of public law at Kingâ€™s College, London, and president of the Institute of Employment Rights and President of the Campaign For Trade Union Freedom