The Death of Statutory Union Recognition in the United Kingdom

Abstract

This article examines the context to the declining use of statutory recognition machinery to achieve collective bargaining in the UK. It suggests that the prospects for regulatory innovation within the structural confines of the North American Wagner Act model are not promising as a way of reversing this pattern of decline. The article then explores ‘regulatory’ models of collective bargaining as an alternative strategy, and it suggests ways in which the conceptualization of representational legitimacy might be enriched to support such a strategy.

Keywords

British industrial relations collective bargaining political philosophy representativeness trade unions union recognition

“This is the way the world ends Not with a bang but a whimper.” (Eliot, 2002)

Introduction

Reports of the death of labour law are now being made with irritating, almost diurnal, regularity in the UK and internationally. Certainly, when one considers the fate of the latest British statutory recognition procedure, it is difficult to resist this morbid perspective. In 2010–2011 there were just 28 applications for statutory recognition for collective bargaining purposes in Britain. This is the latest bad news in a now well-established pattern of declining use of the statutory procedure as set out in Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992. The statutory recognition procedure was the main plank in the Labour government’s reform of collective labour law following its election in 1997, and it has now been in force for over 10 years, surviving the fall of the Labour government in 2010. It is based upon the North American Wagner Act model in that collective bargaining rights are allocated on the basis of majority support among workers in a bargaining unit, determined principally through a formal ballot process. In this way, statutory recognition provides a gateway into the process of collective bargaining, enforceable ultimately through a statutory duty to bargain imposed upon a recalcitrant employer.

The statutory recognition procedure is dying – not with a bang, but with a whimper. This review article will explore the historical and contemporary context to that decline, and it will explore whether there is any scope for regulatory innovation to revive collective bargaining. It will be tentatively suggested that the prospects for this are not promising within the confines of the Wagner Act model. In fact, the entire normative basis of the Anglo-American conception of representational legitimacy – that the allocation of bargaining rights should track workers’ aggregated preferences through the medium of a democratic ballot procedure – requires fundamentally rethinking.

As a contrast, and drawing upon Keith Ewing’s influential work, a distinction is drawn between ‘representational’ and ‘regulatory’ conceptions of collective bargaining (Ewing, 2005). The Anglo-American model of statutory recognition is based exclusively upon a ‘representational’ conception, which envisages collective bargaining as a private market activity conducted by trade unions on an enterprise basis as designated agents of a tightly circumscribed bargaining unit. In turn, this ‘representational’ conception is closely aligned with a consent-based model of representational legitimacy. It is suggested that a ‘regulatory’ conception should be preferred. This conceives of collective bargaining as a public regulatory activity conducted at sectoral or national levels. On this view, collective bargaining is a mode of public governance. In the final section, the article explores alternative formulations of representational legitimacy that go beyond a blinkered preoccupation with express collective consent measured through a ballot. This draws upon Novitz and Syrpis’s excellent analysis of governance legitimacy in transnational labour law (Novitz and Syrpis, 2006). Although the elaboration of principles of representational legitimacy requires a deep engagement with wider questions of political and democratic theory, it is suggested that this provides a richer and more nuanced perspective than the depressing reductivism of the current consent-based model.

The Mysterious Demise of Statutory Union Recognition in the United Kingdom

The latest British statutory recognition procedure contained in Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 became operational in June 2000. It is the third experiment with a statutory scheme of recognition in the UK and, in terms of its longevity, it is the most successful of the three attempts, having now survived for over a decade. The legislative scheme is based upon the US Wagner Act model. It empowers a specialist agency, the Central Arbitration Committee (CAC), to determine the bargaining unit and measure worker support within that bargaining unit. The CAC must impose (absent a voluntarily agreed method) a legally binding bargaining procedure agreement upon the parties in a situation of majority worker support for the union’s recognition claim. This is gauged either through a ballot mechanism or, where it exists, through majority union membership in a bargaining unit. In terms of its deep structure, it is based upon a conception of representational legitimacy that is core to the US and Canadian systems of collective labour relations: that collective bargaining rights are legitimated through the collective majoritarian consent of workers. In simple terms, workers get collective bargaining only if this is what workers want. In turn, what workers want is determined by a process of preference aggregation through a formal ballot mechanism. This idea that labour law policy should be attentive to workers’ wants has an enduring liberal appeal (Freeman and Rogers, 1999).

It is not the first time that British labour lawyers have encountered a statutory recognition procedure. The first legislative experiment in trade union recognition was posited in the ill-fated Industrial Relations Act 1971. This legislation offered trade unions certain new forms of statutory protection and promotion of their interests, but in exchange for registration, which entailed a highly juridified restriction of their freedom to undertake strike action. The recognition procedure was short-lived. The entire legislative framework was rendered unworkable by a concerted campaign of non-registration by most British trade unions. The second legislative experiment in statutory recognition was implemented in the Employment Protection Act 1975 and was administered by the Advisory, Conciliation, and Arbitration Service (ACAS). This procedure also ended ignominiously, but for different reasons. The low point was reached in Grunwick v ACAS [1978] ICR 231 where the employer had refused to cooperate with either the trade union or ACAS in a disputed recognition case. The House of Lords considered that ACAS could not recommend recognition without a full investigation, even when the reason for the lack of such an investigation was obstruction by the employer motivated by bitter employer hostility to the unionization of the workforce. In fact, a series of damaging judicial review cases had impeded the discretionary work of ACAS to such an extent that the legislation became very difficult to administer.

In historical perspective, then, statutory recognition procedures in the 1970s in the UK ended, for very different reasons, in a rather spectacular bang. This makes the fate of the Schedule A1 procedure at present especially interesting and especially troubling. There has been no Grunwick, no industrial stand-off between the trade unions and the government, no intrusive interference by a hostile judiciary. On the contrary, the statutory procedure has occupied the labour relations terrain in an innocuous way. According to Gall, the CAC had originally estimated that it would receive approximately 150 applications annually, yet over its first 10 years, the CAC had received only about half of the projected number (761) (Gall, 2010). Furthermore, the CAC Annual Reports suggest that 444 of those applications for recognition were made in the first five years of Schedule A1, leading to declarations of recognition in 116 cases during that period. What we are now witnessing is a precipitous decline in recognition applications under Schedule A1. From a peak of 118 applications in 2001/2002, there were only 42 applications in each of the years 2008/2009 and 2009/2010. In 2010/2011, the CAC Annual Report indicates that there were just 28 applications, leading to 12 recognition awards. Unsurprisingly, Gall’s work demonstrates that this has been coupled with a steep decline in total new union recognition agreements (including voluntary recognition deals). In 2010, there were just 57 new recognition agreements covering 10,411 workers, which is some way below the 1995 level of 88 recognition agreements covering 27,404 workers (Gall, 2012).

What is provoking about this unfolding pattern of decline is the question that it raises. Schedule A1 purports to provide workers with what they want. The judiciary has largely left the procedure alone. Although there have been examples of serious anti-union conduct by employers, it is simply not on a comparable scale with that witnessed in the US. The government has adopted a stance of neutrality towards the resolution of recognition claims within the framework of a procedure based upon worker choice. Perhaps, then, workers do not want collective bargaining. If this is true, it may be that we are witnessing the quiet death throes of Schedule A1 as it ends not with a bang like its ancestor provisions, but with a whimper. This prompts two most important questions: first, does Schedule A1 provide workers with a fair opportunity to choose collective bargaining if they want it? Second, does worker consent as a legitimating device exhaust the possibilities for justifying union representation?

Statutory Recognition Procedures as ‘Choice Architectures’

Regulatory structures create what Thaler and Sunstein have recently described as a ‘choice architecture’ (Thaler and Sunstein, 2008), and statutory recognition procedures can be understood as creating ‘choice architectures’ in respect of unionization and collective bargaining. Thaler and Sunstein’s work demonstrates that regulatory structures can alter behavioural incentives, frame the available options for choice and even shape preferences and choices. As the ‘choice architecture’ is reconfigured through regulatory change, so it may be that market choices and outcomes change too. This has led to an explosion of interest in analysing how ‘choice architectures’ can be harnessed to ‘nudge’ citizens in the direction of welfare-enhancing decision-making while ultimately deferring to citizen choice, so-called ‘libertarian paternalism’ (Sunstein and Thaler, 2003). The predominant technique is to define ‘default rules’ – those rules that provide the baseline for decision-making – so as to signal to citizens which options are considered optimal. Citizens can then choose to stick with or depart from the ‘default rule’, though in practice ‘default rules’ have a tendency towards ‘stickiness’ in that choosers tend to stick with the status quo (Sunstein and Thaler, 2003: 1180–1182).

Ultimately, there are important limits to the strategy of redesigning ‘choice architectures’ in the context of the Anglo-American model. Paradigmatically, statutory union recognition is conceived as a regulatory mechanism to facilitate transition from a non-union to a unionized governance structure; hence, the statutory process assumes a non-union default. Within those constraints, however, there is a wide range of regulatory possibilities and, hence, different ‘choice architectures’ with different choice outcomes. This is reflected in the contrasting fortunes of the US, Canadian and British variants of the statutory procedure. There are three main ways in which the ‘choice architecture’ of recognition procedures displays regulatory diversity: the nature and incidence of unfair labour practices, and the efficacy of legal techniques for preventing unfair labour practices; the technique(s) for measuring majority worker support; and the scope for allocating bargaining or representational rights in situations falling short of majority support.

In different ways, these elements of the regulatory structure can create (or, in situations of smart design, mitigate) what have been described as ‘adaptive preference’ effects. The work of Jon Elster and Cass Sunstein has led the way in elucidating this phenomenon (Elster, 1997; Sunstein, 1986). Broadly speaking, the phenomenon occurs when citizens’ preferences ‘adapt’ to unjust social and economic conditions that deprive those citizens of available opportunities. In order to avoid ‘cognitive dissonance’, citizens’ preferences might adjust to the unavailability of the option and conclude that the option was not desirable anyway (in Elster’s terms, the ‘sour grapes’ effect) (Elster, 1983). Where citizens envisage an arduous gradient in moving from a non-union to a unionized position – because they anticipate egregious unfair practices, or because the measurement technique for assessing support is likely to be very lengthy and fraught, or because the prospect of achieving majority support in the bargaining unit seems to be such an unrealistically high hurdle – there is a real likelihood of an ‘adaptive preference’ effect occurring (Weiler, 1993: 228). If so, this provides a basis for criticizing the ‘choice architecture’ established by the recognition procedure. It is important to evaluate how well the British procedure measures up against each of these three dimensions in order to assess whether realigning the ‘choice architecture’ is likely to resuscitate the procedure from its current state of dormancy.

Starting first with ‘unfair practices’, the deployment of unlawful anti-union strategies by employers – including the dismissal of union supporters – is relatively widespread in the US context despite its blatant illegality (Human Rights Watch, 2000). The failings of the US system relate less to the definitional weaknesses of the ‘unfair labour practice’ regime and much more to the unavailability of effective remedies for clear employer violations, such as rapid injunctive relief. Although there is certainly evidence that some UK employers are prepared to deploy ‘unfair practices’ (including dismissal of union activists) to stifle incipient unionization, this does not match the scale or intensity of the phenomenon in the US (Heery and Simms, 2008). Schedule A1 sets out a list of proscribed ‘unfair practices’ that are regulative of the ballot procedure under the legislation, even extending to the proscription of the use or attempted use of ‘undue influence’ in the ballot process. The weaknesses of the ‘unfair practice’ jurisdiction have been well documented (Bogg, 2009b). The provisions only apply once a ballot has been ordered by the CAC, leaving wide scope for the deployment of such strategies prior to the ballot process. Moreover, the CAC has offered a rather tentative interpretation of the provisions in the few cases it has been called upon to adjudicate on alleged ‘unfair practices’. These weaknesses perhaps provide at least part of the explanation for the startling fact that the CAC has yet to uphold a single ‘unfair practice’ complaint since the enactment of the jurisdiction in 2004. However, it is undoubtedly true that part of the explanation also lies in the lower incidence of serious unfair labour practices as compared with the pathological US scenario.

Second, the technique(s) for measuring worker support are integral to the ‘choice architectures’ created by recognition procedures. As Sachs has argued, non-union defaults have a tendency to be much ‘stickier’ than union defaults (Sachs, 2010). Sachs postulates that this asymmetry of ‘stickiness’ arises out of the fact that employers can deploy their economic power and their superior communicative access to the workforce to entrench unilateral authority in a way that trade unions cannot, even in a unionized governance structure. For this reason, techniques for gauging worker support are not simply neutral tools of scientific measurement. On the contrary, the choice of technique has profound implications for the ‘stickiness’ of the non-union default and the extent to which worker preferences can be reshaped in favour of the union option. For example, the US procedure is centred upon a mandatory ballot procedure that is usually preceded by a lengthy campaign process where the employer seeks to intervene and shape worker preferences. In effect, this technique of measurement contributes to the ‘stickiness’ of the default by multiplying the opportunities (and incentives) for employers to interfere in the union organizational process. This leads Sachs into an exploration of different measurement techniques designed to be what he describes as ‘asymmetry-correcting’ by minimizing the scope for asymmetries to be exploited through the medium of employer interference: rapid mandatory ballots subject to strict time limits, ‘card check’ provisions, the use of alternative technologies for registering voting preferences, or the use of petition evidence to attest worker support. The relative merits of these measurement techniques, and the evaluation of their differential impacts on worker preferences, are keenly contested (Slinn, 2005). The Schedule A1 procedure makes provision for a recognition award where the union has ‘majority membership’ in a bargaining unit; hence, the ballot procedure is not mandatory (Bogg, 2009a: 175–186). Although there is a range of statutory exceptions to this ‘majority membership’ recognition route, these have been interpreted restrictively by the CAC. In this way, then, Schedule A1 provides a useful example of what Sachs terms an ‘asymmetry-correcting altering rule’, and this feature has been an enduring strength of the British procedure’s ‘choice architecture’.

Finally, a more radical technique for refining ‘choice architectures’ is through what I have identified elsewhere as ‘endowment-shifting’ techniques (Bogg, 2009a: 208). The objective here is to reduce the steepness of the democratic gradient in the transition from a non-union to a unionized governance structure by mitigating the exclusionary effects of majoritarian thresholds. One such method is to permit the discretionary adjustment of support thresholds by a labour agency so that bargaining rights are allocated even without current majority support, in the expectation that support will follow once recognition has been awarded. Another variant of this ‘endowment-shifting’ technique is the concept of ‘staged recognition’, whereby unions are allocated escalating representational rights matched to escalating levels of support in the bargaining unit (Ewing, 1990). For example, where a union falls short of the majority support necessary for bargaining rights, it might be legitimate to allocate consultation rights to the union as a staging post towards full collective bargaining. It must be said that the British procedure has failed to implement these ‘endowment-shifting’ techniques fully within its core design. The CAC is required to determine whether there is a likelihood of majority support in deciding whether a union’s recognition application is admissible and, in this respect, it has invoked ‘virtuous circle’ arguments to justify a bold approach to construing likely support, although this ultimately runs up against the requirement of actual majority support as a precondition for allocating bargaining rights. It is in respect of these ‘endowment-shifting’ techniques that the ‘choice architectures’ of the various forms of the Wagner Act model might be modified to greatest effect, although public policy discussion, especially in the US, has so far tended to focus upon so-called ‘asymmetry-correcting altering rules’ that deal with techniques of support measurement.

Viewed across these three parameters, the ‘choice architecture’ established by Schedule A1 could certainly be improved. The ‘unfair practice’ jurisdiction has major flaws in its design and implementation. While the Schedule A1 ‘majority membership’ route can be characterized as an ‘asymmetry-correcting altering rule’, the CAC still has discretion to order a ballot even in a situation of majority membership. Moreover, the insistence on trade union membership is more stringent than, say, support for recognition revealed in a union-coordinated petition of the workforce. It should also be noted that the period for resolving recognition cases can hardly be described as expeditious. In the latest Annual Report in 2010/2011, the CAC reports that the average duration (measured from receipt of application to final determination of recognition) of cases requiring a ballot was 27 weeks, with an average duration of 16 weeks for ‘majority membership’ cases. Finally, there has been no engagement with ‘endowment-shifting’ techniques such as ‘staged’ recognition or discretionary adjustment of support thresholds.

That said, it is highly doubtful that an improved ‘choice architecture’ would be sufficient as a regulatory response to the spectacular collapse in recognition applications in the UK. One of the most striking features of union membership growth patterns in the UK is the rise of ‘never-membership’, encompassing those workers who have never been a member of a trade union. According to Bryson and Gomez, between 1983 and 2001 the rate of ‘never-membership’ has risen from 28% to 48%. Furthermore, the decline in union density ‘is almost wholly accounted for by the rise in never-membership’ (Bryson and Gomez, 2003: 73). The work of Thaler and Sunstein has drawn attention to the vital importance of the phenomenon of ‘status quo bias’ (Thaler and Sunstein, 2008: 37). Citizens tend to stick with the status quo due to a combination of loss aversion and cognitive laziness. This is so quite apart from the added complication of power asymmetries in the workplace. For this reason, the non-union default and the rise of ‘never-membership’ display sheer gravitational inertia that is difficult to displace, however smart the ‘choice architecture’. The danger with constraining policy debates around worker choice and how best to protect it through regulatory design is that collective bargaining becomes trapped in an inexorable pattern of spiralling decline.

In fact, one pernicious effect of the spread of the Wagner Act model in common law countries is a hollowing out of the normative discourse concerning representational legitimacy that is fixated upon the most effective way to measure worker consent. Other conceptions of representational legitimacy that are not exclusively consent-based have simply disappeared from view. We should not, however, lose sight of the existence of other normative possibilities. For example, Keith Ewing has drawn attention to a most important distinction between modes of collective bargaining. To this end, he distinguishes between ‘representational’ and ‘regulatory’ bargaining (Ewing, 2005). ‘Representational’ bargaining is a prominent feature of the Wagner Act model, and it is predicated upon the representation of workers’ interests through collective bargaining at the level of the enterprise. It is highly circumscribed in two respects: first, bargaining outcomes are typically confined to the enterprise; and second, the trade union’s representation function is tied very closely to the authorizing consent of the represented workers.

By contrast, ‘regulatory’ bargaining characteristically involves trade unions in the public governance of employment for larger-scale geographical or sectoral constituencies. This may even extend to national-level social pacts. This regulatory species of collective bargaining is characteristic of European industrial relations systems such as those of France or Germany. Historically, the British industrial relations system was also aligned with a regulatory conception. These British bargaining institutions were supported by a range of indirect auxiliary props: machinery for ensuring the compulsory normative effect of qualifying collective agreements, wages councils, fair wages clauses, extension of collective agreements and compulsory arbitration. Interestingly, and as a regulatory response to the asymmetric stickiness of the non-union default, Sachs raises the possibility of changing the default position in workplaces to a unionized governance arrangement. He dismisses it as a realistic option, citing significant political and practical obstacles to its realization (Sachs, 2010: 695). However, it is only unrealistic on a representational conception of collective bargaining. The widespread existence of sectoral collective bargaining in European industrial relations systems demonstrates that the hurdles are, in fact, readily surmountable. Indeed, for many workers in continental Europe, there is a union default rule given the extensive reach of regulatory bargaining at the sectoral level.

A realignment of the British bargaining system along these lines would require a radical revision of the legal and institutional arrangements associated with it. More than this, it requires a far richer and more nuanced theorization of representational legitimacy. Union membership density might be one relevant factor to consider in determining whether a trade union is representative. However, a rich variety of representational principles have been deployed alongside union membership density in European industrial relations systems. As Veneziani has observed, ‘there is no golden formula for representativeness, valid for all situations and all functions, on the European scene’ (Veneziani, 1999: 128). These criteria have often evolved organically over long periods of time and in accordance with the internal logics of specific industrial relations systems. Factors that have been treated as relevant principles have included (in addition to union membership density): organizational connections to authoritative national confederations; alignment between the subject matter of negotiation and the trade union’s particular functions; and sufficient internal structures to facilitate democratic participation of union members (Veneziani, 1999: 126–130). This indicates a different way of thinking about representational legitimacy that is not obsessed with demonstrable worker consent measured in a formal ballot process.

Regulatory Bargaining Strategies: Conceptions of Representational Legitimacy

The contrast between representational and regulatory conceptions of collective bargaining tracks a distinction between collective bargaining as a private market activity and collective bargaining as a form of public governance. Once collective bargaining is reconceptualized as an institutional method of public governance, in the style of national social pacts or sectoral collective agreements, the limitations of a narrow preoccupation with consent-based representativity become apparent. Instead, questions of representativity occur as part of a wider enquiry into the legitimacy of governance arrangements. The enquiry into governance legitimacy is vital in determining when it is justified for states to support regulatory bargaining arrangements. More than this, however, it also indicates the ways in which states can regulate bargaining arrangements in order to enhance the legitimacy of those arrangements. Tonia Novitz and Phil Syrpis have deployed Neil Walker’s rich multidimensional concept of governance legitimacy as a basis for evaluating transnational corporatist structures for the making of labour law in the European Union and the International Labour Organization to very great effect (Novitz and Syrpis, 2006, applying Walker, 2001). This provides a powerful lens for evaluating the legitimacy of national regulatory bargaining arrangements, and the role of states in supporting and steering regulatory bargaining. Neil Walker’s work distinguishes between three dimensions of legitimacy. First, ‘polity legitimacy’ concerns the extent to which ‘its putative members treat it as a significant point of reference within their political identity’ (Walker, 2001: 36–37). This dimension looks to the degree of identification and affinity that citizens experience in relating to the political entities that govern and regulate their lives. Second, ‘performance legitimacy’ encompasses an instrumental concern with measuring the quality of regulatory outcomes. This considers whether governance processes are effective in generating norms that are apt for their regulatory context. Finally, ‘regime legitimacy’ concerns the ethical defensibility of the governmental process: whether it respects fundamental rights; the extent to which regulatory agents are representative of their constituents; the democratic quality of the norm-making process; and so forth.

As Novitz and Syrpis acknowledge, the evaluation of legitimacy is a complex business. There will likely be tensions and trade-offs between different dimensions of legitimacy. Moreover, there will be intense normative contestation even within a particular dimension. For example, there will be as many competing accounts of ‘regime legitimacy’ as there are theories of fundamental rights, models of democracy and so on. This requires us to jettison the simple certainties of a consent-based theory of legitimation. However, for all its uncertainty, the capaciousness of legitimacy provides us with a powerful analytical framework that is able to cope with the multiplicity of representational principles that characterize the diverse institutional patterns of European industrial relations. It is impossible in a short article to even begin to provide answers. However, it is hoped to begin to clarify the correct sorts of questions that we need to be asking within each legitimacy domain.

Polity Legitimacy

‘Polity legitimacy’ relates to the constitutive elements in citizens’ political identities. This dimension of legitimacy seems especially challenging for trade unions in countries where collective bargaining coverage and union membership density is in spiralling decline. Kahn-Freund famously stated ‘not only the Houses of Parliament and the Ministry of Labour, but also the General Council of the Trades Union Congress, the British Employers’ Confederation … the Transport and General Workers Union are a part of the British Constitution’ (Kahn-Freund, 1978: 9). British trade unions really were woven into the constitutional fabric of industrial citizenship so as to penetrate the political identities of worker-citizens for much of the 20th century. It is doubtful whether most unions would have the same degree of resonance in identities of political citizenship today, and this raises a potential ‘polity legitimacy’ problem for regulatory bargaining in national systems. That said, there is a variety of ways in which industrial relations systems have engaged imaginatively with the elusive puzzle of how to identify ‘polity legitimacy’ in collective bargaining arrangements.

For example, there are various permutations other than majority rule in linking worker support to the conferment of representational status. This can be viewed as a technique for ensuring ‘polity legitimacy’ through requiring a threshold of civic support, although there are many differences of approach between European jurisdictions. In Italy, for example, trade unions are authorized by law to participate in national collective bargaining where they can demonstrate 5% representativeness in the specific public sector concerned (Veneziani, 1999: 127). In Spain, the concept of ‘most representative’ trade union is determined by voting proportions in works council elections, which are set at 10% for the national level and 15% at the regional level. Finally, in Poland, the criterion of representativeness for a trade union to participate in the Tripartite Commission for Social and Economic Affairs is a threshold of 300,000 members (Fulton, 2011). These provide more defensible techniques for aligning legitimacy with workers’ preferences in ways that transcend the cultural and structural impediments inherent in the Wagner Act model. Since collective bargaining is justified as a mode of democratic governance, there is a need to ensure the democratic consent of worker-citizens to those arrangements. However, it is quite mistaken to assert a tight correlation between democratic consent and the Anglo-American insistence on the ballot as the principal technique for ensuring legitimacy, as the varied European experience indicates.

Moreover, in countries such as France, a conception of ‘assumed or implied representativeness’ was deployed until very recently, whereby rights were conferred on organizations ‘simply by virtue of its being affiliated to a higher-level organisation already recognised as representative’ (Veneziani, 1999: 126). In turn, trade union confederations acquired an organic legitimacy in virtue of their historical rootedness in the structures of industrial governance. Matters such as the trade union’s patriotism during the German occupation determined this privileged position. This reflected an approach that identified trade unions as bodies that were inherently representative of workers’ objective interests – as real entities with their own distinct histories, prerogatives and constitutional standing – quite without any explicit need for worker authorization.

Performance Legitimacy

‘Performance legitimacy’ is focused upon the ability of governance processes to deliver good policy outcomes. The most striking manifestation of ‘performance legitimacy’ is its reshaping of the meaning of representativity. The focus is increasingly upon the objective qualities and characteristics of the representative organization and its ability to perform an effective role in the formulation and implementation of policy goals. Veneziani has identified examples of this kind of approach in his study of representativeness across European industrial relations systems. Thus, Italian law sometimes ‘defines representativeness according to the issues dealt with and the function of the union. So by comparing the different unions involved in industrial relations it is possible to identify the union most likely to fulfil the legislator’s objectives’ (Veneziani, 1999: 128). Veneziani also draws attention to the existence of a legal test focused upon the organizational attributes of the representative that has been deployed in the context of the European ‘social dialogue’ process. This test focuses upon ‘the scope of the union’s professional constituency, its affiliation to a national union and its functional and structural suitability’ (Veneziani, 1999: 129). This assessment of the organization’s attributes from the perspective of ‘performance legitimacy’ encompasses a multiplicity of factors that might include: financial resources; research capacities to gather and interpret relevant economic data; integration with national and transnational trade union confederations; organizational independence from employers; a history of bargaining in a particular sector, indicating suitability and special expertise; and effective internal participatory structures to facilitate the democratic input of members. All of these factors provide an indication of the trade union’s bargaining capabilities. There is intuitive sense in the proposition that those organizations best able to bargain effectively have a strong claim to be designated and supported as regulatory actors by the state.

Beyond these organizational attributes, the assessment of ‘performance legitimacy’ is more complex and controversial than is perhaps implied by Novitz and Syrpis’s account. Thus, Novitz and Syrpis observe that ‘performance legitimacy relates to the ability of any political entity to deliver policy goals … Utilitarian and efficiency-based arguments are decisive in the performance legitimacy calculus’ (Novitz and Syrpis, 2006: 369). The emphasis on a utilitarian ‘means–end’ calculus can be misleading, however, insofar as it might underemphasize the normative content of the performance legitimacy equation. To ascertain whether a political entity is delivering what it ought to be delivering necessitates an account of what constitutes a good policy outcome. In the industrial relations context, what is needed is nothing less than a normative conception of labour law’s goals. For example, where regulatory bargaining leads to soft standards that can be modified or derogated from through a variety of procedural mechanisms, this would be identified as an attractive policy outcome from a ‘labour law as flexicurity’ perspective. It would therefore score highly on a performance legitimacy calculus. By contrast, a conception of labour law centred upon high levels of ‘hard’ social protection might identify this as a diluted and compromised regulatory outcome that scores very poorly when measured against performance legitimacy. In this way – and this should not surprise us – theories of representational legitimacy are bound up inextricably with deeper theories of labour law and its goals.

Regime Legitimacy

Finally, ‘regime legitimacy’ is ‘concerned with patterns of political organisation, the representative quality of the governing institutions and the relationship between them. Democratic arguments, of various types, predominate here’ (Novitz and Syrpis, 2006: 369). Just as ‘performance legitimacy’ requires a theorization of labour law’s goals, ‘regime legitimacy’ requires a theorization of democracy and its meaning in the sphere of industrial relations. Obviously, what follows can be no more than preliminary and suggestive, given the Herculean size of the task at hand. The number of competing theories of labour law in assessing performance legitimacy is probably only surpassed by the number of competing theories of democracy in assessing regime legitimacy.

In recent years, theories of deliberative democracy have been prominent both in democratic theory and, increasingly, in labour law (Bogg and Novitz, 2012). Deliberative democracy seems especially apposite as a paradigm for developing frameworks of regulatory collective bargaining, because regulatory bargaining is akin to a form of public governance such as a legislative act, as opposed to a private market activity. In Jon Elster’s terms, regulatory collective bargaining belongs to the deliberative realm of the forum rather than the self-interested bargaining realm of the market (Elster, 1997). Theories of deliberative democracy are based upon a vision of shared dialogue with citizens committed to the public exchange of reasons that other differently situated citizens could reasonably accept. The deliberative aim is the achievement of a reasoned consensus based upon a shared common good, although in the event that this is not possible, it is likely that other democratic methods of closure such as voting or bargaining will be more enlightened than they might otherwise have been. This presents a rigorous picture of democratic citizenship. In Gutmann and Thompson’s terms, there is a requirement of ‘reciprocity’ such that ‘to justify imposing their will on you, your fellow citizens must give reasons that are comprehensible to you. If you seek to impose your will on them, you owe them no less’ (Gutmann and Thompson, 2004: 4).

Despite the seeming appeal of elevating reason over brute force in the conduct of politics, the deliberative paradigm has provoked powerful dissenting voices in the labour law community. For Novitz and Syrpis, for example, there is a danger that the deliberative elevation of reason can entrench the disadvantage of socially excluded groups and marginalize dissenting voices to the democratic periphery. Echoing the concerns of Sandra Fredman (2006), they pose the following rhetorical question:

if parties leave their vested interests behind, and are protected by freedom of speech and other basic human rights, what need is there for state intervention to secure formal parity of treatment and a balance of power through structured mechanisms for participation? (Novitz and Syrpis, 2006: 379)

Elsewhere, Judy Fudge has also expressed concern about the damaging occlusion of power relations that might occur by applying deliberative principles in the world of work (Fudge, 2011). Clearly, it is imperative that we be vigilant in scrutinizing the balance sheet of deliberative democracy in the industrial sphere. Nevertheless, I think that the demands of ‘regime legitimacy’ through deliberative democracy generate an exacting set of responsibilities on the state to provide effective support to collective bargaining as a form of regulatory governance. Three specific examples will be considered: the right to strike; methods of dispute resolution; and good faith bargaining duties.

First, as far as the right to strike is concerned, leading deliberative democrats such as Joshua Cohen have defended a rich ideal of substantive political equality as a necessary condition of deliberative democracy. This is identified by Cohen as a principle of ‘equal opportunities for effective influence’, which envisages concerted action by the state to redress social and economic disadvantage as a way of removing impediments to equal democratic participation (Cohen, 1997: 407). This ideal of substantive political equality as a precondition of deliberation translates into a powerful justificatory argument for a right to strike. Without the right to strike, the political inequality of trade unions is manifest to employers. Democratic deliberation is likely to degrade into an exploitative sham in such circumstances. Other deliberative theorists have drawn attention to the ways in which strike action can prompt public deliberation on issues of serious injustice that might otherwise be ignored (Gutmann and Thompson, 2004: 51). This necessitates a legal framework that respects international norms concerning the right to strike. Furthermore, any proposed measures such as compulsory ballots or ‘conciliation pauses’ need to be carefully scrutinized in terms of their justifications and social effects using the metric of substantive political equality. Where states purport to use deliberative principles to justify the restriction of strike action, the chances are that the argument is based upon an opportunistic distortion of deliberative principles.

Second, the state has important responsibilities to ensure the provision of dispute resolution machinery that promotes deliberative practices. Deliberative democrats such as John Dryzek have emphasized the deliberative qualities of mediation as a form of dispute resolution: its aim is ‘not a verdict, but consensus among the actors involved, sensitive to the central concerns of these parties’; as such, well-designed mediation interventions can ‘stimulate discourse and reflection about goals, interests, and values and reciprocal education’ (Dryzek, 1990: 46). Other deliberative modes of resolution might include greater use of public commissions of inquiry in disputes that are large in scale and proving to be especially intractable. Public dialogue and argumentation in forums such as this impose a kind of discipline on the framing of arguments, ruling out appeals to one’s own selfish interests as a sufficient public justification for a particular course of action (Elster, 1995). Just as importantly, deliberative principles counsel against certain other forms of dispute resolution. Thus, Dryzek is particularly hostile to the ability of courts to promote the kind of free discourse that is characteristic of deliberation (Dryzek, 1990: 83). It is regrettable, from that perspective, that the High Court has jurisdiction to enforce orders of specific performance against parties who have breached legal bargaining duties under the British procedure. It is little wonder that no party has sought an order of specific performance from the court in more than a decade of statutory recognition.

Finally, the deliberative perspective would justify a rich conception of good faith bargaining duties (Bogg, 2009a: 258–263). The current legal approach to the statutory bargaining duty under the British procedure is insipid, being exclusively procedural in nature. It is simply a duty to meet and to talk and no more than that. By contrast, a deliberative good faith standard would be much more substantive in nature. It would necessitate (and, indeed, countenance) an evaluation of the objective reasonableness of the parties’ bargaining conduct. This might include drawing adverse inferences from a party’s failure to make concessions, for example. Where a party has failed to make reasonable concessions, this could provide important evidence of a failure to engage reflectively with the other party’s arguments. A failure to justify proposals by reference to supporting evidence might also provide evidence of a failure to deliberate through the provision of evidence-based reasons. Expansive positive duties to provide relevant information to other deliberating parties also seems to be defensible as an element of deliberative good faith.

Conclusion

Predictions of labour law’s imminent death are probably as old as labour law itself. Consequently, the genre of ‘Labour Law as Prophesy’ is a very familiar one. Perhaps this realization is necessary for a sense of perspective. Responding to the suggestion that labour law was in its death throes in 1995, Bob Hepple observed that ‘while we have not reached the “end”, we are in what Gramsci might have described as an “interregnum” in which the old is dying, and the new cannot be born’ (Hepple, 1995: 305). As the British recognition procedure dies quietly with barely a whimper, we might ask whether we are in a similar period of interregnum. We might also ask whether the dying of the old – if that is indeed what we are witnessing – deserves our mourning. The US Wagner Act model and its theory of majoritarian consent have spread across the English-speaking common law world like a virus. Its effect has been the ascendancy of a vapid discourse about representational legitimacy that is fixated upon the hows, whys and wherefores of worker consent. If the demise of the Anglo-American model gives way to experimentation with new institutions of regulatory bargaining and new conceptions of representational legitimacy, there is nothing to be regretted in that. On the contrary, it retrieves an older tradition of theorizing where the discussion of the role of trade unions forms part of a public dialogue about what our labour laws should be. In turn, what our labour laws should be forms part of a public dialogue about the identity and shape of the decent society. Of course, respecting the needs of citizens as autonomous agents will form part of that public debate, and this forms an important element in ensuring ‘polity legitimacy’. As with any democratic institution, the consent of ‘the people’ matters. However, consent can be demonstrated in ways other than a ballot. Moreover, consent is not the only thing that matters. This older tradition is likely to be more productive than the bleak choice-obsessed creed that currently pervades legal discourse about statutory union recognition in North America and the UK.

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