This is a discussion article written by a Free Our Unions supporter. To respond, please email freeourunions@gmail.com.

The Trades Union Congress meets for a special congress on Saturday 9 December, to discuss the new “minimum service levels” anti-strike laws and possible resistance to them. The congress is only scheduled to take place for a few hours, and it seems likely most unions’ delegations will be comprised of senior national officials. There has been no opportunity for wider democratic scrutiny of whatever proposal the TUC general council plans to put to the congress, and therefore no opportunity for rank-and-file bodies within unions to propose amendments or additions.

A lobby is planned outside the congress venue; it is good there will be some agitational presence, but given the lack of transparency and scrutiny over what the congress will actually debate, it is hardly clear what attendees will be “lobbying” delegates to do. The resolution from the TUC’s regular congress which mandated the organisation of a special congress also included commitments to build a campaign of “non-compliance”, as well as a national demonstration. The latter commitment is the easier; it is frankly scandalous that, despite the plans for MSL laws being first announced in the Tories’ 2019 manifesto, the only on-the-streets mobilisations against them have been a few midweek-evening rallies outside Parliament, coinciding with votes on the bill, and one protest organised by Free Our Unions in alliance with Earth Strike UK.

A national demonstration would never have stopped the laws by itself, and now the bill has become an act, certainly won’t lead to its repeal. But it could have been, and could still be, a focal point for mobilising opposition and an element in a wider campaign. Organising a national demonstration is something the TUC could organise more or less at will. Several unions have also had longstanding policies to call a demo. If the special congress fails to set a date for one, a “coalition of the willing” of individual unions should take the initiative. It is an affront to their internal democracy that they have failed to act on the decisions of their own annual general meetings.

The question of “non-compliance” is more complex, but must be seriously confronted. So far, there has been some stirring but less-than-specific talk from union leaders about, variously, “non-compliance”, “defiance”, and “resistance” to the laws. Some have talked about the need for mass strikes to protest the sackings of any workers dismissed for defying the law. But this latter proposal frames resistance as something devolved to individual workers, with the mass movement then taking action to defend them if they are disciplined. Given that such action would itself likely require breaking existing laws (e.g., the ban on strikes in solidarity with other workers), it makes little sense to defer the question of defiance in this way.

There is significant potential for political campaigning focused around demands on employers to refuse to issue work notices. The legislation says only that employers “may” issue work notices, not that they must, leaving individual employers free to decide not to, thereby enabling “all-out” strikes to take place. The Scottish Government has already taken this step; other employers, especially transport authorities administered by Labour administrations such as Transport for London, could easily follow suit. Given that Labour has committed to repeal the law within its first 100 days in government, it would be ludicrous if its administrations were involved in enacting in now, given there is no legal requirement for them to do so.

But it is certain that some employers — especially the Westminster government itself — will issue work notices. The movement as a whole therefore needs to be clear about what “non-compliance” with the law will mean in practise. The point at which unions, as collective organisations, are expected to “comply” with the law is by “taking reasonable steps to ensure” that members named in work notices do in fact attend work during strikes. Therefore, the only possible form of “non-compliance” is for unions to refuse to take such steps, and to then persist with strikes in the face of any resultant court injunctions, or potential fines, arising from their failure to cajole their own members into scabbing. This will be a level of direct confrontation with the state that the British labour movement has not undertaken in a generation. It is not something to be advocated lightly. But, unless we are to accept a continual narrowing of our horizons and a slow grinding down of unions from potential instruments of class struggle into glorified insurance brokers and personal-injury lawyers, it is necessary.

It is also clear that senior trade union officials, with an “institutional” relationship to unions and tasked with protecting its finances, will be extremely reticent to commit to a course of action that risks those finances. There is no immediate easy fix for this problem; bigger, wealthier unions could commit to underwrite any fines faced by smaller unions, giving them more confidence to defy the laws without risking total financial collapse, but this would require a significant increase in a culture of practical solidarity. Given different unions within the same industry invariably instruct their members to cross the picket lines of other unions, this might be deemed unlikely.

One possibility is that unions may attempt to fulfil their legal obligations in a bare-minimum way — for example sending members a pro forma email saying words to the effect of, “You have been named in a work notice and it is our legal obligation to encourage you to attend work”. Again, this would make the question of defiance an individual, rather than collective, matter. If this happens, workers named in work notices should aim to refuse “en masse” rather than in ones-and-twos. But workers will unquestionably be in a stronger position if our unions, as organisations, defy the law, rather than grudgingly complying and hoping individuals resist.

As significant as the 2022-3 strike wave has been, the stark reality is that the labour movement is not in good health. Union membership is declining, and shop floor organisation in any workplaces is threadbare. It is a marker of the less-than-ideal situation that the largest and most forceful strikes in the NHS, for example, have been organised by craftist professional associations like the RCN and BMA, rather than the largest union, Unison. Attempting to organise mass defiance of the law from this low base, shaped by years of defeats and an entrenched culture of compliance with the already heavily-restrictive legislative regime, is difficult. But the very least we can do is talk specifically about what defiance must mean in the current context, and seek a serious discussion in the movement about what will be necessary to achieve it.

The 9 December TUC special congress seems likely to be only a truncated and stage-managed forum for such discussion. Rank-and-file activists must seek to organise others, within the structures of their own unions, through Trades Councils, and via campaigning bodies like Free Our Unions.