Mixed greens

For all its good ideas, says Jonathan Timbers, the Green Party needs to do some serious thinking if it is to be a credible and progressive alternative to Labour

The Green Party is often seen by some democratic socialists in England as a left-wing alternative to the Labour Party. There are a growing number of Green councillors and the Greens are represented in the European parliament.

In areas such as mine (west Yorkshire), where historically people with ‘new age’ views have settled and, in some cases, created green businesses, voluntary organisations, housing co-ops, and so on, the Green vote is growing. At the last all-out council elections in June 2004, when all three local council seats were up for election, the Greens, with only one candidate, just failed to take one seat from the Lib Dems.

The Green Party itself seems to draw strength from an ‘associational’ culture of the kind that Sean Creighton referred to when describing the rise of the Labour movement. In my area, for instance, Green Party activists, though small in number, are prominent in organising and running public events like ‘the Big Green weekend’ and ‘Crickstock’ (a local league cricket match by day, and a music and dance festival by night, with acrobats and fire jugglers).

There is no indication at present, however, either in my locality or elsewhere, that the Greens are likely to have any significant impact on the Westminster elections. This does not mean, of course, that they never will, but our political culture and the electoral system that underpins it, keeps them on the fringes of electoral politics, even if, outside the political stockade of Westminster, their numbers are growing.

Therefore, the Greens remain ‘a party of protest’, thriving on the opportunism of oppositional politics, and appealing to a relatively narrow social base. One may reflect sadly on how some of its supporters might, in a different age, have found a home in the old ILP, or have contributed to the ‘broad church’ of the old Labour Party, but perhaps for that very reason, the growth of the Greens presents only a marginal threat to new Labour. Its existence may drain potential recruits from the fractious and ageing cohorts of the Labour left (although some might say, that the left doesn’t need much help to do that) and divert troublesome people, who don‘t want to appeal to ‘Mondeo Man’, from the party.

However, much more significant than the Greens’ electoral threat to the Labour Party, or its organisational competition for the left, is the ideological challenge it poses to socialism, social democracy and new Labour.

I have chosen one area of Green Party policy which is central to the thinking of the Labour party, old and new, to illustrate the differences, challenges and weaknesses of its approach: employment rights, Labour law and the trade unions. For those who wish to go further, the Green Party keeps an updated version of all of its policies in its Manifesto for a Sustainable Society on the web at http://policy.greenparty.org.uk.

Comprehensive plan

The Green Party’s lengthy statement on workers’ rights and employment makes interesting reading. As the product of a policy commission, it can be uneven, obscure and contradictory. There may be tension, for instance, between those members who do not like trade unions, except in theory, and those who take a more pragmatic approach to industrial relations. However, taken as a whole, it is an engaging document, which is idealistic rather than utopian, and, for all its practical shortcomings and occasionally inchoate proposals, presents a much more relevant and comprehensive plan than anything the socialist left can currently produce.

Of course, that does not mean I fully agree with it.

Underlying the document is a recognition that rights need to be extended to agency workers and the self-employed. There is still far too much focus on the left on ‘organised Labour’, the ‘traditional’ working class, and public sector trade unionism. Although the Labour government has made huge strides forward in extending and strengthening employment and discrimination law, millions of workers are relatively unaffected because they do not fit the legal definition of ‘an employee’ (a flexible concept but one based on the notion that there exists, among other things, a mutual obligation by both parties to offer and accept work, as well as control by the employer over work procedures and delegation of tasks).

Employment patterns have changed dramatically over the last quarter of a century and many people either obtain work through employment agencies or have set up in business for themselves. Thirty years ago the vast majority of manual labourers in my locality worked in textile mills. Now many who practice a skill or a trade are in business for themselves. Often their conditions of employment are poor and insecure, but the left has little to say to them directly.

The Green Party not only recognises this shift, but embraces it.

It seems to envisage a world where people work either in co-operatives or for themselves in partnership with other business organisations. Mutuality is central to this vision. ‘Our long term aim,’ the Greens grandly assert, ‘is to end the oppressive and exploitative nature of economic relations and develop a society of equality and economic justice… We recognise that there is a thin dividing line between “workers employed by a single regular employer” and the “genuinely self-employed, freelance and sole trader”.’

The self-employed will have similar benefit entitlements to employees and the imbalance in negotiating positions between the single trader and larger business organisation will be rectified by statutory changes to the law of contract including penalties (as opposed to genuine liquidated damages) for late payment to small businesses and applying equal pay and discrimination law to contracts between businesses. The Greens also say that they will end small business dependency on multi-nationals, but don’t say how they will do this.

Similarly, significant changes in the law are envisaged for contract workers employed by employment agencies or businesses. Short term contracts should only be available for short term work and those employing workers in particular trades (such as building) will only be able to claim that they are self-employed if they belong to a register of sole traders. If not, there will be an absolute legal presumption that they are employees and covered by the relevant legislation. In any event, employment agencies ‘will be covered by [legislation] on leave entitlements, discrimination and health and safety’ (although I believe that to an extent they already are).

Not revolutionary

Proposed improvements to existing employee rights are not particularly revolutionary and include 28 days paid holiday (as opposed to 20 days); a reduction in the qualifying period for the right to claim Unfair Dismissal to day one of employment; the right of mothers with babies to take breaks to feed their children during the working day; and improvements to maternity leave (including full pay for the first three months) and paid parental leave. Significantly, the Greens plan to introduce tax incentives and grants where appropriate for employers to offer child-friendly work.

The minimum wage will be retained and benefits improved until a citizens’ income can be introduced for all, ensuring that workers will be in a stronger position to refuse jobs which are poorly paid or where the conditions and benefits of employment are poor.

Odd hours

The proposals on working hours are odd, to say the least, and do not appear to improve the current situation. The government is to set a maximum number of hours for certain occupations per year but district committees (tripartite boards responsible for enforcing employment law – more of them later) will advise on standard annual contractual hours. This seems less clear cut than the current working time regulations and may provide less protection for workers and more red-tape for employers, so the benefits are elusive, save for the fact that the system sounds highly decentralised.

The allure of decentralisation is offset at times, however, by an unfortunate desire to formalise decision-making by laying down codes. There is a long-standing debate at the centre of employment law about the degree to which tribunal decisions should be discretionary and flexible. Much of this hangs around the interpretation of words like ‘reasonable’ and ‘just and equitable’. Too much reliance on precedent allows employers to evolve ways around the law, too little creates uncertainty and the danger of arbitrary justice. Essentially, this is one of those irresolvable legal imbalances which allows the law to remain dynamic, but which can also lead to absurdity.

The document left me with the strong impression that someone on the Green policy commission has studied employment law but never practised it, and has decided to try to iron out some of the imperfections which arise from this imbalance. For instance, redundancy selection criteria would be laid down by new Labour Courts. The intention of this may be to reduce the amount of litigation which currently arises out of these criteria, but the potential for the courts to make a dog’s breakfast of the system is boundless.

Enforcement of these rights will be at the hands of new district industrial tribunals and a local inspectorate. The Greens are at pains to stress that the society which they envisage will be much more consensual than now. The sort of changes which they propose would normally lead to a litigation boom, which would make the present upsurge under Labour look modest. Understandably, they wish to avoid that, hence their plans for local inspectorates with a much wider remit than the present Health and Safety Commission. Furthermore, they do not favour the involvement of lawyers except, it is assumed, as advocates.

Accordingly, they propose a root and branch re-fashioning of the system of decision-making in employment. Currently, an employee making an application sends it to a regional Employment Tribunal where his or her case will be heard by two lay members, representing employees and employers, and chaired by an experienced employment lawyer. An appeal, if given leave to be heard, may then proceed to the Employment Appeals Tribunal (EAT), which has High Court status, and from there to the Court of Appeal and upwards to the House of Lords. It is only when the higher appellate courts become involved that lawyers dominate the proceedings.

This is not good enough for the Green Party, however, which seems to want to create a set of people’s courts without the benefit of lawyers (although in its favour, Magistrates’ Courts operate a similar system). There will be a new system of Labour Courts staffed by judges, call them what you will, separately trained from the existing judiciary (in case they catch some legal disease of the mind, no doubt). However, beneath this there will be a system of District Industrial Tribunals appointed by district committees composed of representatives of business, the unions and the community. These committees will also appoint and oversee the work of the local inspectorate, so the culture will be one of enforcement.

Beneath these will be workplace committees which will ensure that the new Employment and Discrimination Acts (which actually aren’t so very different from those already in place) are implemented, advise negotiators on the drawing up of contracts of employment, and assist the district inspectorate. In addition, they will also try to resolve disputes before they go to the district tribunal, thereby replacing ACAS, which nevertheless will be expanded to mediate in trade disputes.

This system has the benefit of localism and the potential for creating chaos as the plethora of committees become mini council chambers. Why, except for ideological reasons, make employment law completely separate from other branches of the law? There is a benefit in having it as an integral part of our jurisprudence – justice requires consistency. Do the Greens want to over-turn our system of common law and return to some sort of pre-feudal system of local law and custom? The existing arrangements already allow lay members (i.e. non-lawyers) to have a significant influence on the application of employment law. Why change it, especially since having a system of lay people making decisions does not guarantee progressive results?

Ill-thought out

I welcome the proposal for a local inspectorate to enforce employment law, and the principle that there could be a wider role for advisory services in resolving disputes and assisting both parties to a contract (small businesses could do with a lot more free impartial advice in handling employees and job applicants, for instance), but the rest seems ill-thought out, or, worse, well-thought out but wrong-headed.

One final point: the Green Party proposes granting legal aid for employment cases (currently only £500 of legal help is available). This is to be welcomed subject to the usual caveats about legal aid rates, narrow means-testing and bureaucracy which discourage many solicitors from using it.

Trade unions

And what role in this new system is there for trade unions? The document has much to say on this topic. The Greens find trade unions problematic in the extreme, perhaps with good reason. They recognise that in order to have a sustainable economy they will have to displace large sections of the workforce from their current employment, and that they will meet fierce resistance from the trade unions if they are ever in a position to do this.

Yet, notwithstanding their inherent conservatism, the trade unions remain the largest voluntary organisations representing ‘ordinary’ people in the country, and can be centres of resistance to global capital. Unlike some socialists, who cling to the belief that organised workers in trade unions will be central to the transformation of society, the Greens do not see their role as central, but do see the need for strong independent trade unions, even in a society transformed along green lines. In that process of transformation, the Greens hope to work with trade unionists who want to green their own unions.

In a sustainable economy, the trade unions will work with local committees in overseeing the implementation of employment law and in negotiating contracts of employment for their members. The Greens suggest that the most important role for trade unions, however, is in promoting workplace democracy. They also nod assent to ‘reformed’ trades councils working more closely with local communities (as some are currently trying to do).

That does not mean that trade unions simply become a voluntary sector arm of government policy. The Greens wish to make it easier for trade unions to gain workplace recognition and grant workers the right to strike without being in breach of contract. They also want to make it automatically unfair to dismiss a worker for refusing to cross a picket line. Strikers are to receive welfare benefits once more and limited forms of secondary action will be made lawful, including action to resist harmful environmental and social production. Indeed, ‘green strikes’ are given the thumbs up.

However, other forms of industrial action are discouraged. And here is the crux of the issue. Ultimately, the Greens only appear comfortable with trade unions when they act as consultative bodies and voluntary welfare and campaigning organisations, a kind of mixture between ACAS and Oxfam, with perhaps just a dash of Greenpeace direct environmental action mixed in.

It is strongly implied that the Labour courts will be the ultimate arbiters of what is and is not a ‘legitimate trade dispute’. Government will continue to legislate on internal standards of democracy within trade unions, although the Greens favour open workplace ballots, not secret or postal ones. The tone of the document indicates that its authors consider trade unions to be bureaucratic, top-down organisations, which need to be changed, and it would be difficult to disagree.

Contradictions

It is easy to envisage, however, a situation where a Green government (so we are talking very hypothetically) is forced to take a more authoritarian stance towards trade unions. The Greens want independent trade unions so long as they do what the Greens want. The contradiction in their position is unlikely to survive exposure to power and influence, nor win them many friends in the trade union movement itself.

This is a pity because there are people within the movement who do want to give trade councils a more community-orientated focus and who are keen to see trade unions run campaigns on social and environmental issues. They also want trade unions to be effective and independent advocates for the interests of their members and are unlikely to be convinced by the Greens’ sincere hope that the implementation of Green policies would lead to a more consensual and harmonious state of industrial relations.

In fact, if they were ever tried out, they are more likely to expose serious conflicts between employees and employers. Making it easier to strike may unleash a wave of strike action as workers begin to realise that they can act together to improve their terms and conditions. That in turn may encourage a higher degree of conflict within small businesses between employers and employees. Green employers are, at the end of the day, employers who often have to survive off relatively low profit margins. More expensive and more confident employees are unlikely to endear themselves to their bosses, who in turn will be subject to challenges from their staff.

This may be a price worth paying for a fairer and less exploitative Labour market, but the Greens don’t wish to expose themselves to the difficulties of achieving it, just as they refuse to recognise the danger of creating chaos from their proposed system of district and workplace committees and people’s tribunals.

And ultimately, because they do not appear to want to learn lessons from other parties or ideologies, I remain unconvinced about the possibility of successfully implementing the whole package, at least with the kind of results that the Greens hope for.

There are a lot of good ideas in this document, and some I would support very strongly indeed, but the Greens need to do much more serious thinking if they are to be a credible, coherent and progressive alternative to Labour.

The Green Party’s Manifesto for a Sustainable Society is available on the web at http://policy.greenparty.org.uk