For more information, please contact:
Parliamentary lead:
Denise Morrisroe Tel: 0161 829 9109
Email: denise.morrisroe@equalityhumanrights.com
Legal lead :
Sara Brunet Tel: 0161 829 8409
Email: sara.brunet@equalityhumanrights.com
0

1. Introduction
This briefing supports the Motion that Clause 15 should not stand part of the Bill, and Amendments 99, 100 and 102 to Clause 15 and
Schedule 1.
2. Summary
The Commission has identified a number of human rights implications arising from Clause 15 of the Trade Union Bill. Our analysis suggests that Clause 15 of the Bill may not comply with the European
Convention on Human Rights (ECHR). We note also that an international body is examining the compatibility of Clause 15 with other international legal obligations to which the UK is subject, in particular the International Labour Organisation (ILO) Convention 87 on Freedom of Association and Protection of the Right to Organise.
3. Clause 15 and Schedule 1 – Investigatory powers etc
Commission’s recommendation
Support the Motion which would remove Clause 15 from the Bill or, in the alternative, Amendments 99, 100 and 102 to Clause 15 and
Schedule 1.
Explanation
The Certification Officer (CO) is the Registrar of trade unions and employers’ associations. The CO has a range of powers and duties to ensure trade unions and employers’ associations abide by various statutory requirements and their own internal rules, and that their finances are managed effectively.
Clauses 15, 16 and 17 of the Bill, together with Schedules 1 and 2, set out new investigatory powers and sanctions available to the
CO. In summary, the CO will be empowered to investigate a trade union’s suspected failure to comply with a ‘relevant obligation’ listed in Schedule 1. The CO may use these powers of investigation in the absence of a complaint by an individual trade union member, and will be able to adjudicate the same complaint.
Removing Clause 15 from the Bill would prevent the insertion of these additional investigatory and enforcement powers into the Trade Union
1

and Labour Relations (Consolidation) Act 1992 (TULRCA).
Amendments 99, 100 and 102, in the alternative, would improve
Clause 15 by requiring that a complaint be made by a union member, rather than initiated by the CO, and by providing that the CO would need to reasonably believe that there was evidence of a breach of obligation before initiating an investigation.
Our analysis
Article 6(1) of the ECHR provides that, in the determining of their civil rights and obligations, everyone is entitled to a fair hearing by an independent and impartial tribunal. In our assessment, the new proactive character of the CO's functions (i.e. the power to instigate, investigate and then adjudicate the same complaint) compromises the impartiality of the CO. In particular, the new power to instigate a complaint implies that the CO may have already decided that there is something worth looking into further and taken a view of its merits.
This is inconsistent with the Article 6 requirement that a complaint should be impartially determined by an independent body. The
Government has argued that the right of appeal to the Employment
Appeal Tribunal (EAT) would remedy any such breach of Article 6.
However, in our assessment this would not be a sufficient answer where the CO makes findings of fact and an appeal to the EAT lies only on a point of law, as is the case with current appeals against CO decisions under TULRCA.
The provisions of Clause 15 and related Schedules are also relevant to the UK’s other international legal obligations, in particular, under the ILO Convention 87 on Freedom of Association and Protection of the Right to Organise. Although they cannot be directly enforced through our domestic courts, international human rights treaties (conventions and charters) are legally binding in international law and have mechanisms to hold States to account.
The Commission notes that the ILO Committee of Experts, a body which provides advice to the bodies which are responsible for enforcing ILO Conventions, has asked the UK Government to review a number of the provisions in the Bill and to provide comments on the proposals to extend the powers of the CO 1 .
1 pp. 153-154, ILO, 105 th Session, 2016 Application of International Labour Standards 2016 (1):
Report of the Committee of Experts on the Applications of Conventions and Recommendations at http://www.ilo.org/ilc/ILCSessions/105/reports/reports-to-the-conference/lang--en/index.htm
2

About the Equality and Human Rights Commission
The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006. It operates independently to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote human rights. It contributes to making and keeping Britain a fair society in which everyone, regardless of background, has an equal opportunity to fulfil their potential. The
Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It encourages compliance with the Human Rights Act 1998 and is accredited by the UN as an ‘A status’ National Human Rights
Institution.
Find out more about the Commission’s work at: www.equalityhumanrights.com
3