Lord John Hendy KC On Labour’s Employment Rights Act

Notes Of Lord John Hendy KC (Vice President Of The Campaign For Trade Union Freedom) Speech at the Anjou Lunch Club, January 9th 2025.

With 4 in 10 workers having to claim benefits, will Labour’s Employment Rights Act redress the imbalance between employers and the workforce?

Not the way things are going, warns Lord John Hendy KC.

At the start of a new year an optimist might be tempted to declare that “it is a new dawn, is it not?” as Tony Blair did on claiming victory in the 1997 General Election. The arrival in 2024 of another Labour government, promising a new Employment Bill, might also encourage positive thinkers to “dream big”.

But earlier hopes for truly radical employment law reform look likely to be dashed.

John Hendy has been a great champion for workers’ rights for several decades, being involved on the trade union side in both the miners’ strike of 1984-5 and the Wapping dispute with Rupert Murdoch’s News International in 1986. He has been a distinguished, expert and effective voice at the Bar on behalf of workers for many years.

The new Employment Rights Bill has been introduced and is now in the committee stage in the House of Commons, before being debated later in the year. There will follow a consultation process during which some amendments (and improvements) may be possible. But, while the Bill has been described as “the biggest upgrade of workers’ rights for a generation” and may be the first serious overhaul of workers’ and trade union rights for 50 years, this Bill “almost completely fails to do the minimum necessary to redress the balance.”

Yet the Bill is “a unique opportunity – probably the only one in our lifetimes – to reform the law at work”. Reform is urgently needed. As many as 38 percent of those on universal benefit are in work. Nearly a million people now live in poverty in households where someone is in work – and the number is growing.

Sustained attacks on the trade unions since the 1980s.  “The coverage of collective agreements, which was over 80% between 1945 and 1980, is now down to about 25%, meaning that employers dictate unilaterally the pay, terms and conditions of three quarters of our workforce.” Trade union membership is down from 13.5 million in 1979 to less than half that figure today.

There were six Acts of Parliament between 1982 and 1992, constituting a deliberate attack on collectivism. “Neo-liberal ideology was to permeate everything: management prerogative to replace negotiated outcomes; solidarity displaced by Thatcher’s mantra that there is no such thing as society, only individuals. Sympathy industrial action and secondary picketing were outlawed. The duty on ACAS of promoting collective bargaining was removed. The Ministry of Labour was eroded into non-existence.”

In opposition Labour committed to major reform in the event of a new Labour government coming into office. A Green Paper (with a red cover) had been produced in 2021, led by Andy McDonald MP, called A New Deal for Working People.

The commitments in it included the following, for example. Fair Pay Agreements will be negotiated through sectoral collective bargaining, reversing the decades-long decline in collective bargaining coverage. Worker representatives and employer representatives would be brought together to negotiate Fair Pay Agreements that establish minimum terms and conditions, which would be binding on all employers and workers in the sector.

The New Deal was adopted as party policy by the Annual Conference in 2021 and again in 2022. “The Leader and Deputy Leader repeatedly praised and committed to it,” Party policy was then modified in Labour’s Plan to Make Work Pay just before the election. Now the party committed to “establishing a new Fair Pay Agreement in the adult social care sector”. Sectoral collective bargaining promised in opposition, dematerialised now.

The new Bill proposes to establish an Adult Social Care Negotiating Body and a School Support Staff Negotiating Body. But there is no mechanism under the Bill to establish sectoral collective bargaining in any other sector of the economy. The Adult Social Care Negotiating Body and a School Support Staff Negotiating Body do not constitute collective bargaining. “So many aspects of the arrangements are not determined by bilaterally by the negotiating parties but by the Bill or by regulations made by the Secretary of State under it, regardless of the wishes of the parties.”

“There are problems with almost every aspect of the Bill. Clearly, the Bill needs amendment if we are to improve living standards, fulfil our international legal obligations to encourage and promote collective bargaining, and re-empower unions on behalf of workers.”

The Institute of Employment Rights, which John chairs, has put forward 100 suggested (preliminary) amendments, which can be found on the IER web site.

Friendly MPs might also be approached to encourage improvements to the Bill during the consultation phase. “The game is not lost, but it is getting more urgent,” John said. “Business is lobbying like mad behind the scenes. The comprehensive industrial relations reforms of the New Deal for Working People have been filleted in this Bill, the guts ripped out. There is no obvious sense of urgency on the union side to insist on the New Deal, repeal Thatcher’s anti-union laws and restore to unions the legal space in which they can again effectively defend and improve the lives of those who work.”

The Bill is 150 pages long. You can’t just knock up a document like this in a hurry. But, despite being well connected to every (progressive) employment law expert in the country, it has not been possible to find out who has provided the Government with legal advice. Neither he nor Professor Keith Ewing, for example, has been asked. It surely couldn’t be the case that the government has been relying on the employers’ lawyers for advice … could it?

The Campaign for Trade Union Freedom is organising a major rally on the Employment Rights Bill on 22nd March 2025 at the NEU headquarters, Hamilton House.

Speakers confirmed include Mick Lynch (RMT), Lord Hendy KC, Mick Whelan (ASLEF/TULO), Maryam Eslamdoust (TSSA), Prof Keith Ewing, Tabusam Ahmed (Unite London & Eastern Regional Officer), Steve Gillan (POA), Lori Holmes, (PCS) with more to be announced.

Visit this website soon again for more details.