Distracting himself from writing a report of Wednesday's UNISON NEC meeting, Jon Rogers has written a commentary [1] on the current state of the trade unions in respect of equal pay - possibly the most important issue facing our unions, and their members, and one we are almost completely prevented from debating because of the fear that something someone says or writes might be used as evidence in litigation directed against the unions at a later stage.

It's a big problem, and one that I don't think the trade union rank and file activists have even begun to get a grip on. Since we can't ever talk about it, it is difficult to see a way out of the blind alley the unions have walked in to.

We could say that the unions should put democracy above the risk of litigation, and debate a strategy, agree it and then carry it out, regardless of the possible use the materials of debate (speeches, motions, etc) might be put to by the bottom-feeding lawyers now encouraging low paid workers to sue their own union on the expectation of a share of any winnings.

That seems preferable to the current approach of silencing ourselves completely on the question of how we're going to lift our members out of poverty. But if your world-view is one in which protecting the fabric of the union is of paramount importance, then silence is, indeed, golden. And the same logic which leads trade union leaders to disown entirely legitimate but wildcat strikes to prevent sequestration now drives them to clamp down on any debate around pay strategy.

It is difficult to face down that argument - clearly it is true that getting the union bankrupt in the law courts wouldn't be a very effective strategy for defending our members. And the slippery slope represented by this litiginous approach to equal pay (started by the unions themselves, but now the boot is on the other foot, of course) is clear when you consider that it is now suggested that union branches cannot risk recommending a deal which addresses equal pay issues, leaving negotiations permanently unfinished and members in lwo pay limbo forever. Not only that, but the target of the legal challenges now often includes pay protection elements of pay settlements, so the effect of the court action is to lower the 'overpaid' men, rather than raise up the underpaid women. This is not in anyone's best interest, apart from the legal profession, some of whom [2] clearly expect to be dining out in Brussels at the unions' expense for many years to come.

So, I've been thinking more and more about what happened the last time the unions faced a widespread threat to their very existence. A hundred years or so ago, a court ruled (in the Taff Vale [3] judgement [4]) that a trade union could be made liable to pay an employer for the costs to their business from a strike, even if the strike was legal. In other words, if a strike was in any way effective, the union had to reimburse the boss to the point where the strike was of no significance.

If that judgement had been allowed to stand then the trade union movement would have been dead. Every major gain in working class people's lives over the last hundred and fifty years have come about because of a willingness by workers to strike, or the threat of strikes. If the costs of striking were to be borne by the workers, not the employers, then workers would be making profits for the boss whether they went to work or not.

The unions responded by launching a political campaign against the legal shackling of their industrial effectiveness. Out of that political campaign came the Labour Party, and in 1906, under pressure from the now-polticised labour movement, the Liberal Government passed the 1906 Trades Disputes Act [5] which removed Trade Union liability for the economic effects of lawful strike action.

We still don't have a perfect legal framework for trade union activity, far from it. And so we continue to need both political trade unionism [6] and a campaign to unshackle the union movement [7] from the legal fetters which employers and their governments have used to bind and restrict us.

But perhaps the threat of litigation over equal pay means we now need a new campaign - for legal measures to prevent "no win, no fee" lawyers unscrupulously explointing trade union members in litigation against their own trade unions. If trade union members were not able to sue their union in this way, but had to focus their claims solely on the employer who was denying them equal pay, then the unions would be free to pursue not only an open strategy for winning equal pay (and higher pay) for all our members, but also a demoncratic and transparent approach to agreeing that strategy in the first place.

To those who would argue that such a proposal would be strengthening the union bureaucracy against the individual members, and denying members their rights to challenge bad decisions made by the union, I would put forward a couple of points. Firstly that the union bureaucracy are the ones doing (relatively) well out of the current situation, since they do at least get to discuss the equal pay strategy, something denied to rank and file trade union members. Secondly that the individual trade union members would have, instead of a individual legal right to sue their trade union, a collective right to participate in the decision-making over both strategy and specific equal pay settlements. And thirdly, and more broadly, the trade union movement is not the same as a plumber or other tradesperson, providing a service to a customer, and against whom the customer needs legal right of redress if things go badly. Trade unions are collectives. In suing their trade union, low paid workers would effectively be suing themselves, and in the long term doing themselves far more damage than they may have suffered in situations where unions settled equal pay cases for less than the full entitlement.

So, is the equal pay legal minefield a Taff Vale for the 2k generation of trade unionists? If so, what should we be doing about it?