Humble petition or militant action?

There are two sides to Tolpuddle, argues Mike Macnair

Every year around this time there is a festival and march organised by the Trade Union Congress at Tolpuddle, Dorset, to commemorate the Tolpuddle Martyrs.[1] The martyrs were six men – George Loveless and his brother James, James Hammett, James Brine, Thomas Standfield and his son John – who were convicted in 1834 of “administering an unlawful oath” – ie, attempting to form a branch of an agricultural labourers’ union – and sentenced to transportation to Australia. Within two years a mass campaign had secured their pardon and their release. This year’s festival is taking place over the coming weekend, July 16-18, with the march on Sunday at 2pm.

Remembering the Tolpuddle Martyrs and the long history of the struggle for legal trade unions is important to the workers’ movement in any year. This year it is particularly appropriate: recent months have seen a series of abuses of judicial power to stop strikes, and sections of the Tory-Lib Dem government and the Tory press are flying kites about yet more restrictions on strikes and on trade union political action. Workers’ right to organise, limited as it is, has been fought for and won against the opposition of the capitalist class over centuries. It should not be taken for granted.

The story of the Tolpuddle Martyrs is also pertinent today, because it is a story about what happened after the 1824 repeal of the Combination Acts and along with them a whole raft of medieval and more recent anti-union laws. What happened in the Tolpuddle case was – like many more recent cases – the abuse of judicial power to circumvent the parliamentary legislation by straining the interpretation of older law.

There is, however, another side of Tolpuddle. This side is about who is remembered, why and how. The Tolpuddle Martyrs were far from being the only trade unionists victimised under 19th century anti-union laws. They were not even the only trade unionists whose victimisation was in the end defeated after solidarity campaigning, whether by jury verdict, pardon or otherwise.

However, the martyrs seem distinctive in another way. The standard history represents them as a respectable group: southern rural workers, not northern urban workers; Methodists (including two lay readers), not Chartists. The TUC’s flyer for the event represents it as a “commemoration of the moral power of the working class”.[2] The underlying narrative on offer is one of the progress of trade unionism through peaceful protest and lobbying. The annual festival is thus not just a festival of trade unionism: it is a festival of Fabianism and Labourite ideology.[3]

This narrative is attractive. Unfortunately, it is false. Major concessions to the working class in this country have not come about by polite lobbying and being helpful to the employers. They have come about – in the 1820s, 1840s-50s, 1870s, after World War I and II, – because the capitalist class were put in fear of something much worse than making the concessions: of real threats to their power.

When the capitalists cease to be afraid of the working class, they cease to make concessions and begin to take them back. The Fabian-Labourite policy of legalism, lobbying and ‘realism’ has given us … Thatcher’s anti-union laws, the trade union defeats of 1980s, and Blairite ‘New Labour’ subservience to the City, with its inevitable end in today’s Con-Lib coalition and the promise of a new round of anti-union laws.

Anti-union lawyers

The last few weeks have been marked by significant kite-flying in favour of more extended anti-strike laws from a section of the Tories and their press, and by the employers’ organisation, the Confederation of British Industry. The proposal being touted is to bring in a minimum threshold in strike ballots: ie, that no strike should be legal unless 40% of those eligible to vote in a strike ballot support it.[4] This proposal involves strikingly obvious double standards: if the test were applied to the formation of governments, few in the last 50 years would be considered to have a mandate at all.

Alongside this proposal is another double-standards offensive. For some time the employers have been attacking strike ballots over small technical errors. Where the margin in the vote was small, the unions have usually simply pulled the action or rerun the ballot (at, it should be noted, considerable expense).

Double standards are involved for three reasons. First, on the standard applied, the recent UK general election would be rendered void by the errors which led to some voters being disenfranchised on May 6. Secondly, under the Re Duomatic principle, companies (ie, the employers; but equally, from the point of view of real free-market individualism, associations which interfere with the market) can take decisions completely informally.[5] Thirdly, as I argued in this paper on April 8, lawyers have their own trade unions – which are not merely untouched by the anti-union laws, but positively protected and promoted by the state.[6]

In July 2009 the court of appeal in Metrobus v Unite rejected arguments that a “strict construction” (against unions) of the legislation was inconsistent with international human rights law as an interference with freedom of association. Lord Justice Kay took the opportunity to reassert that English law does not recognise a legal right to strike – merely statutory immunities from legal liability for striking, which would otherwise exist. (As counsel for Unite pointed out to the court, the International Labour Organisation has ruled that these rules so restrict the right to strike guaranteed by the ILO treaties that the UK is in breach of the treaties.)[7]

Metrobus v Unite encouraged employers’ lawyers and judges to make more aggressive use of the act. In December last year, in the first case on the cabin crew strikes, Justice Cox ruled that the union was to be held to strict standards of compliance with the rules, and that applying the test of ‘balance of convenience’ for the issue of interim injunctions meant that an injunction should be issued to stop the strike, partly because it would be inconvenient to the travelling public. In April Justice Sharpe in Network Rail v RMT extended the strict standards of compliance to require the union to take proactive measures. These decisions then formed the basis of Justice McCombe’s decision to enjoin the May round of cabin crew strikes.[8]

Unite appealed McCombe’s decision and won a 2-1 decision in the court of appeal from the Lord Chief Justice, Lord Judge, and Lord Justice Smith. The master of the rolls, Lord Neuberger, dissented.[9] The majority judgments are highly opaque on the law applied, but seem to represent a softening of the line of Metrobus v Unite on “strict construction”. (This is perhaps part of why they are opaque: the court of appeal is supposed to be bound by its own prior decisions.) The ‘balance of convenience’ issue is not addressed at all, so that Cox’s dodgy arguments in this context stand.

BA v Unite in the court of appeal thus looks like the minimum decision necessary to avoid an immediate and public confrontation in this case where there was a large majority for strike action, while still leaving the “strict construction” and ‘balance of convenience’ arguments still available to employers. It is symptomatic that in spite of the decision British Telecom was able to use equally technical objections to persuade the Communication Workers Union’s lawyers that they would lose in court.[10]

A small, quiet voice, not reflected in the capitalist mass media, offers a minimalist alternative to this legal offensive. John McDonnell MP obtained first place on the private members bill ballot and has taken the opportunity to introduce the Lawful Industrial Action (Minor Errors) Bill. The text is not available on the House of Commons bills website, but seems from the title likely to go no further than the small changes proposed in clauses 4-7 of the 2006 Trade Union Freedom Bill.[11]

The agenda of this bill was informed by two sources. The first was ‘realism’: the hope that something might actually get passed if it did not make ‘unrealistic’ demands. The second was the technical advice of the unions’ lawyers. The result is very minimal proposals which – if they were passed – might have the effect of rolling back the “strict construction” line to a limited extent. But in reality “Judge and co” (as Jeremy Bentham called them[12]) would find new reasons to rule for the employers; and in any case a bill which might conceivably have been passed by a Labour majority has no chance today.

In these circumstances ‘realism’ is senseless. No matter how ‘realist’ you are and how good the legal advice, a bill will not get passed. So the point of a bill, if it has one at all, is to inspire resistance to the courts. That is, as part of a campaign to expose the class bias of the judicial system, and thereby to create the conditions for broad mass solidarity behind unions and groups of workers targeted by the employers’ lawyers and judges. Such a bill should start from general principle – freedom of association. It should strike at the root – the lawyer-created ‘economic torts’, which are the backstop around which the modern anti-union laws are built.

Meanwhile, the issue of trade union support for the Labour Party through the political funds is also back on the agenda. On Tuesday July 6 The Times reported that the government was considering imposing new rules on trade union political funds, while on Thursday July 8 Sir Hayden Phillips was reported as saying that regulation of party funding was merely a matter of “political will”. Sure, it is. The Tories have consistently insisted that any ‘reform’ must cap union donations to Labour, while leaving untouched the multiplication of front subsidiary companies to evade caps on corporate donations.[13]

As I argued in my April 8 article, the judicial decisions are at the end of the day paid for by the employers through the so-called ‘free market in legal services’. But, as I also argued in a May 29 article, the reality is that under the present political regime the laws passed by parliament are likewise paid for by the employers at the end of the day (through the advertising-funded media, corporate political donations, and so on) and merely fraudulently misrepresented as the result of the will of the people.[14] In other words, the ‘old corruption’ which gave our ancestors the Combination Acts and the Tolpuddle case never went away; it has only taken different forms. It is the natural form of capitalist rule.

The remedy for it is working class organisation and solidarity. Within the framework of capitalist corruption, whether the forms are old or modern, the interests of the working class will always be subordinated at best, stamped on at worst. But through independent working class political organisation, the development of workers’ independent media and so on, we can cut across the paid-for lies of politicians, journos and lawyers. That collective political action is what Tory kite-flyers hope to destroy by new restrictions on trade union political funds.

Electoral and judicial corruption is the natural form of capitalist rule. In this sense, we still face the same underlying order that the Tolpuddle Martyrs faced. The only real enemy of this order is working class collective political action. But working class collective political action can defeat governmental and judicial corruption – just as the mass campaign won pardons for the martyrs. These are fundamental lessons of Tolpuddle which we need to remember in today’s politics.

A political struggle

As I said above, the standard Tolpuddle Story, reflected in the TUC’s literature and in the website of the Martyrs’ Museum, is one of the martyrs as representing respectable, Christian and ‘moral force’ trade unionism.[15] This image is counterposed to the much more political Chartism – and its ‘physical force’ wing – and to the more disorderly and violent ‘Captain Swing’ agricultural workers’ movement which went before it. The reality of the history is somewhat different.

Capitalism came into the world industry by industry, and brought with it anti-union laws – starting with the Confederacies of Masons Act 1425, penalising building workers’ attempts to organise to raise wages. This industry-by-industry form continued down to the 18th century.[16] At this point, however, the judges began to assert that combinations to raise wages amounted to ‘common law’ criminal conspiracy. The first printed case is that of Cambridge tailors in 1721. An act had been passed to penalise a union of London tailors, and the decision extends it beyond London; the judges claimed to rely on an earlier case, not in print, of the tubwomen (women porters) employed by the London brewers.[17] By the late 1750s judges were urging grand juries to report workers’ ‘combinations’ for prosecution.[18]

From the employers’ point of view ‘common law’ conspiracy had the disadvantages that the proceedings were dilatory, and those prosecuted might abscond and be untraceable; also it was tried by jury, and the jury might for one reason or another sympathise with the defendants. In 1799 the Tory government, acting on a suggestion by William Wilberforce, brought in the first general Combination Act, providing for summary jurisdiction before JPs, who could be trusted to take the employers’ side. It is perhaps noteworthy that Wilberforce was celebrated in 2007 as an icon of the peaceful and realistic lobbying leading to the abolition of the slave trade. This celebration attempted to glorify bourgeois ‘public opinion’ and marginalise less respectable aspects of the campaign against the slave trade.[19]

The Whig opposition opposed the 1799 bill as an invasion of the right to trial by jury, and supported a mass petitioning campaign after the act was passed. The result was a body of ‘realistic’ amendments in the new act of 1800, which seemed to make it fairer (for example, by allowing prosecution of employers for combinations to reduce wages: a merely formal possibility, given the domination of the JPs by employers).[20]

What followed was a period of extensive, violent and disorderly class struggles. It was also a period in which the working class began to identify itself as a class and its enemy as a class, and to think politically through a wide range of semi-underground ideas. Combinations for sectional trade purposes – proto-trade unions – looked like a threat to capitalists all through the 18th century. Now they began to look to the employers and government like something preferable to Jacobinism, Painism, Spenceanism and so on, and to ‘Ned Ludd’ machine-breakers, ‘intimidation’ and arson.[21]

The result in 1824 was to allow a clique of Ricardian laissez-faire theorists to secure the repeal of the acts of 1799-1800 and all the prior special acts – and even, for a brief moment, the abolition of the doctrine that combining to raise wages was a ‘common law’ conspiracy. The repeal let loose a massive strike wave, with resulting demands from employers for the re-introduction of the acts, and in 1825 the government restored ‘common law’ conspiracy and imposed some other forms of control. But the repeal came about because the forcible struggles of trade unionists down to 1824 led the parliamentary majority to conclude that the game of unmitigated standing repression was not worth the candle: the committee which brought in the 1824 act commented that the Combination Acts “had a tendency to produce mutual irritation and distrust, and to give a violent character to the combinations, and to render them highly dangerous to the peace of the community.”[22]

But repeal was not yet enough to curb the growth of various forms of working class political consciousness by canalising it into ‘respectable’ sectional trade unionism. The ideas of both combination and radical democracy were spreading into the agricultural labour force, with increased momentum through the 1820s. 1830 saw the great wave of ‘Captain Swing’ rural revolts; one of the Loveless family was arrested as a Swing rioter, though he avoided conviction, and George was a spokesmen for wage demands in 1831-32. Unions were in process of forming the Grand National Consolidated Trade Union with aims of a complete replacement of capitalism and suggestions of a general strike as means, and George Loveless was in contact with them. The danger seen by Lord Melbourne’s Whig government was that the GNCTU, with its radical aims, would spread to rural labourers. Hence local landowner-JP James Frampton, who saw the Tolpuddle union and similar groups as a revival of Swing, got the home office’s go-ahead to find some way to prosecute at Tolpuddle, in the hope of breaking this development.[23]

The repeal of the Combination Acts was an obstacle. The home office suggested use of the Seditious Meetings Act 1817, aimed at republicans, which made it an offence to hold an unlicensed meeting or lecture; the way found was the Unlawful Oaths Act 1797, aimed at ‘mutineers’ (strikers) in the navy. Tolpuddle thus represents yet another case of judicial extension of legislation – in this case what would probably now be called ‘anti-terrorism’ legislation – in the interests of government and the employers. (How can you tell when a judge is lying? When he tells you in a trade union case which he has just decided against the union that he is ‘only following the statute’.)

The GNCTU failed as a trade union project in 1834, as its leadership counterposed its general aims to the immediate sectional struggles of affiliated groups, particularly the tailors. But it was strong enough to organise the mass campaign which led the government to back down over Tolpuddle. And at least partly out of its ruins grew Chartism. By 1838 George Loveless was back in Dorset organising campaigns for fair wages … and the vote.[24]

The Tolpuddle prosecution was thus an ‘aftershock’ of the repeal of the Combination Acts, as the prosecutor and the lawyers temporarily found a way to circumvent repeal by abusing other legislation. Within two years this attempt was defeated: the government backed down in the face of broad solidarity campaigning. But this campaigning was not the product of respectable lobbying on minimalist demands. On the one side, it was part of the work of a broad movement which sought a radical overthrow of the political and social order – whether this movement took the form of the GNCTU or of Chartism. On the other, the government’s back-down aimed, as the original repeal of the Combination Acts had aimed, towards domesticating and depoliticising trade unionism.

Put in fear

The repeal of the Combination Acts and the back-down over Tolpuddle came because the governments and the possessing classes were put in fear of something worse … widespread violent and disorderly class struggles, and the growth of a class-political consciousness out of which developed the GNCTU and Chartism. This narrative is not unique in the history of the British labour movement.

Chartism was defeated in 1848 by precisely targeted repression.[25] But this repression was also accompanied by (carefully separate) substantive concessions: the Factories Acts 1847 and 1850, limiting working hours.

In the 1860s, British trade unionists and leftists developed a broad campaign in solidarity with the struggle against slavery in the American civil war. Out of the campaign developed the First International. At the same time a militant campaign for extension of the suffrage, led by the Reform League, was waged.[26] The concessions this time were the Reform Act 1867, letting some better-off skilled workers vote, and the Trade Union Act 1871. As with Tolpuddle, the employers and their lawyers and judges found ways to resist the new act and two more were needed to do the job: the Conspiracy and Protection of Property Act 1875; and Employers and Workmen Act 1875.

1914-18 produced growth of the illegal shop stewards’ movement, the Clyde and Sheffield Workers’ Committees, and at the end of the war army mutinies and industrial action against the intervention in Russia. The major concession was the extension of the suffrage in 1918 to all men over the age of 21; a lot of industrial co-determination schemes were also floated, but rapidly abandoned.

1939-45 saw the revival, again, of the illegal shop stewards’ movement and illegal strikes. The Chamberlain government fell after that well known ultra-left, Ernie Bevin, went round the country making speeches threatening that the working class should take over to conduct the war effectively. After the USSR was drawn in, the Communist Party grew dramatically. By 1945 the regime was in no mood to attempt to rerun the combination of repression with concessions of the end of World War I, and the press swung behind Labour to deliver large-scale concessions.

Selective breeding

The British ruling class is thus adept at meeting militant struggles with a combination of immediate repression and – hopefully delayed – concessions. It was already using this tactic before the Combination Acts.[27] As long as the concessions can be somehow separated from the immediate demands of militants, they can be presented as (a) what the regime intended to do all along, and/or (b) the product of the peaceful, lobbying road taken by ‘responsible’ leaders.

The result is a sort of capitalist selective breeding of trade union and Labour leaders. Leon Trotsky remarked on it in Where is Britain going? (1924), drawing an analogy with pigeon-fanciers who had supposedly produced pigeons with beaks too short to break out of the shell.[28]

Another angle on the same phenomenon: the old Civil and Public Service Association (now amalgamated in PCS) published in 1980 a history of itself under the title From humble petition to militant action.[29] This may well be a fair characterisation of the history of trade unionism in the civil service. But the general history of the trade union leaderships would perhaps be better characterised by reversing it: From militant action to humble petition. The story of Tolpuddle as representing “the moral power of the working class” is a part of the process by which Labour and TUC leaders ‘educate’ workers for humble petition and against militant action.

It should be obvious today that humble petition – the Fabian-Labourite policy of legalism, lobbying and ‘realism’ – is not working. What we get is a ratchet effect against trade union freedom. Heath’s industrial relations legislation was not repealed, but replaced by Labour’s ‘realistic’ 1974 Trade Union and Labour Relations Act, which maintained higher levels of control than pre-1971. That paved the way for Thatcher’s anti-union laws. The New Labour ‘realists’ left 98% of Thatcher’s anti-union laws in place. That paved the way for today’s judicial offensive against the unions and Tory talk of a new round of anti-union laws.

‘Realism’ today infects even the organised far left. Take, for example, the Socialist Workers Party. Its distorted version of the ‘united front policy’ demands that it unite with the right wing of the movement – on whatever platform the right wing requires. Their difference is merely on method: moderate demands, they say, but militant action. The idea is an illusion: who, apart from a few students and ex-students, will risk jail or the dole to fight for … a return to Keynesian demand management?

What is needed is to put the capitalist class in fear. That does not mean a call for a return to Ned Ludd and Captain Swing in the sense of machine-breaking, arson and ‘intimidation’ as tactics in industrial disputes. It means setting our political sights higher. We need to aim to build mass support, not for a lesser-evil or ‘realistic’, minimal reform, but for the overthrow of the corrupt capitalist state and legal order and a working class take-over of the running of society.

If we can build such a movement, we may not win the big prize it aims for. Victory is never certain. But even in defeat we would win major concessions – as the Chartists, the First Internationalist trade unionists and suffrage activists of the 1860s, and the illegal militants, leftists and communists of the war years of the 20th century, did not win the big prize, but still won major concessions.

We should remember the history of our own movement. Not in the sanitised form of respectable Fabianism and apolitical trade unionism. We should remember the struggle for working class political power, and a world without capitalism, of which Tolpuddle was a small part. And if we renew that struggle we might – with persistence and luck – win through to its goals.

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Notes

  1. www.tolpuddlemartyrs.org.uk/index.php?page=2010-festival
  2. Above 1. (emphasis added).
  3. Cf also Bristol Radical History Group, ‘Tolpuddle and swing: the flea and the elephant’: www.brh.org.uk/articles/captain_swing.html
  4. ‘Boris Johnson bid to curb strikes is “declaration of war”’ Standard July 5: www.thisislondon.co.uk/standard/article-23852406-unions-on-attack-over-government-war.do; ‘How far is Cameron prepared to push the unions’ FT Blogs July 5: blogs.ft.com/westminster/2010/07/how-far-is-cameron-prepared-to-push-the-unions; ‘A new round of anti-trade union laws?’ Len McLuskey on the Socialist Unity blog, July 8: www.socialistunity.com/?p=6254
  5. Re Duomatic [1969] 2 chapter 365.
  6. ‘It is not enough to call for abolition of anti-union laws’: www.cpgb.org.uk/article.php?article_id=1003878
  7. Metrobus v Unite [2009] EWCA Civ 829; this and other cases cited below are available on http://www.bailii.org
  8. BA v Unite [2009] EWHC 3541 (QB); Network Rail v RMT [2010] EWHC 1084 (QB); BA v Unite [2010] EWHC 1210 (QB).
  9. BA v Unite [2010] EWCA Civ 669.
  10. ‘BT strike bid halted by legal hitch’ Channel 4 News July 6: www.channel4.com/news/articles/business_money/bt+strike+bid+halted+by+legal+hitch/3701177
  11. ‘John McDonnell launches bill to restore the right to strike’, June 30: l-r-c.org.uk/press/john-mcdonnell-launches-bill-to-restore-the-right-to-strike; services.parliament.uk/bills/2010-11/lawfulindustrialactionminorerrors.html; 2006: www.publications.parliament.uk/pa/cm200607/cmbills/032/2007032.pdf
  12. Eg, ‘On Humphreys’ real property code’ in J Bowring (ed) The works of Jeremy Bentham London 1843, Vol.5, p396: “Here then is a Gordian knot, which, somewhere or other, and somehow or other, Judge and co must have cut by their instrument of all-work – falsehood.”
  13. ‘Party funding deal needs political will, watchdog hears’, BBC news July 8: news.bbc.co.uk/1/hi/politics/10544760.stm
  14. ‘From an instrument of deception’: www.cpgb.org.uk/article.php?article_id=1003904
  15. www.tolpuddlemartyrs.org.uk
  16. There is a convenient list of statutes in James Moher, ‘From suppression to containment’ in J Rule (ed) British trade unionism: the formative years 1750-1850 Harlow 1988, chapter 4, p76; cf also JV Orth, ‘English combination acts of the 18th century’ (1987) 5 Law and History Review 175, pp180-94.
  17. R v Journeymen-Taylors of Cambridge 8 Modern 10, 88 ER 9. The tubwomen case is sometimes identified with R v Starling (1664) 1 Levinz 125, 83 ER 331 (and other reports), in order to increase the pedigree of what seems to have been a new idea. But there is nothing in Starling to suggest the involvement of tubwomen (the case concerned an agreement of London brewers to try to provoke mass opposition to the excise by creating an artificial shortage of beer and blaming it on the tax).
  18. Gentleman’s Magazine August 1758, Vol 28, pp391-92 (Lancaster, 1758, Lord Mansfield CJ); G Lamoine (ed) Charges to the grand jury 1689-1803 (RHS 1992), 405-6 (Dublin, 1763, Aston CJ); 426 (Middlesex, 1770, John Hawkins JP).
  19. On the act: Orth, above n15, 195-200. On Wilberforce and abolition: www.history.ac.uk/1807commemorated/discussion/memory.html; cf. also M Macnair, ‘Abolition and working class solidarity’ Weekly Worker March 15 2007.
  20. Orth, above n15, pp200-05.
  21. EP Thompson The making of the English working class Harlow 1968; Moher, above n15, pp84-90.
  22. JV Orth, ‘The British trade union acts of 1824 and 1825’ (1976) 5 Anglo-American Law Review pp131-52 (quote at p142).
  23. R Wells, ‘Tolpuddle in the context of English agrarian labour history’ in J Rule (ed) British trade unionism: the formative years 1750-1850 Harlow 1988, chapter 5, pp118-22.
  24. TM Parssinen, A Prothero, ‘The London tailors’ strike of 1834 and the collapse of the GNCTU’ (1977), 22International Review of Social History 65-107 at pp74-75, 72; R Wells, ‘Southern Chartism’ (1991) 2 Rural History 37 at p39.
  25. J Saville 1848: the British state and the Chartist movement (Cambridge 1987).
  26. Wikipedia provides a convenient summary: http://en.wikipedia.org/wiki/Reform_League
  27. I Gilmour Riot, rising and revolution (Pimlico 1993) tells the 18th century story from a Tory point of view.
  28. www.marxists.org/archive/trotsky/britain/wibg/ch04.htm
  29. E Wigham From humble petition to militant action – a history of the Civil and Public Services Association 1903-1978 (CPSA, 1980).
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