Trade Union Bill
Second Reading
House of Lords
11 January 2016
For more information please contact:
Parliamentary leads: Finola Kelly 0207 832 7826
Finola.Kelly@equalityhumanrights.com
Denise Morrisroe 0161 829 8109
Denise.Morrisroe@equalityhumanrights.com
Legal lead: Sara Brunet 0161 829 8409
Sara.brunet@equalityhumanrights.com
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1. Introduction
The Commission has identified a number of human rights implications
arising from the Trade Union Bill (‘the Bill’). We welcome the
amendments to the Bill made in the House of Commons, and the
Government’s decision not to proceed with certain additional restrictions
on picketing on which it recently consulted. Nonetheless, our analysis
suggests that specific clauses of the Bill may not comply with the
European Convention on Human Rights (ECHR), or with the UK’s
international obligations under United Nations (UN) and International
Labour Organisation (ILO) treaties and the European Social Charter
(ESC).
2. Assessing human rights impact
As required by the Human Rights Act,1 the Minister has made a
statement as to the compatibility of the Bill with ECHR rights. In
addition, the Department for Business, Innovation and Skills (BIS) has
published a ‘Memorandum on the human rights implications of the Bill.’
The Commission notes that this memorandum does not fully assess the
Bill’s impact on all the UK’s human rights obligations. In particular it does
not consider obligations under the UN and ILO treaties ratified by the UK
or its obligations as a signatory to the ESC.
3. Union supervision of picketing (Clause 9)
Currently, the law protects the right of a trade union to organise and
encourage its members to take part in peaceful picketing, provided that it
meets a series of requirements set out in the Trade Union and Labour
Relations (Consolidation) Act 1992 (TULRCA) and explained in the
Code of Practice on Picketing. Clause 9 of the Bill adds new
requirements, including the appointment of a picket supervisor, who
must carry an authorisation letter and wear a badge or other identifying
item, and whose details should be provided to the police.
The Commission welcomes the Commons amendment to the Bill that
entitlement to see the letter of authorisation applies only to the employer
or his agent and that the picket supervisor’s name is not required to be
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Section 19(1)(a) Human Rights Act 1998
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stated in the letter. Nonetheless, our legal analysis suggests that, even
as amended, Clause 9 may be in breach of Article 11 of the ECHR
(freedom of assembly and association), particularly taken in conjunction
with Article 14 (freedom from discrimination in the enjoyment of ECHR
rights).
Article 11(2) ECHR permits Article 11 rights to be restricted in pursuit of
a legitimate aim. Any restriction must correspond to a pressing social
need and be supported by relevant and sufficient reasons. It must also
be proportionate to the legitimate aim that is being pursued. While
protecting the rights and freedoms of others can be a legitimate aim, in
our analysis there is insufficient evidence that Clause 9 is capable of
achieving that aim to any significant extent. For example, the status and
responsibilities of the picket supervisor are undefined and it is unclear
how a letter of authorisation will influence or improve the behaviour on a
picket line. There are also significant consequences of non-compliance
with Clause 9: a trade union may face civil liability in respect of a
peaceful and otherwise lawful picket.
In addition to a breach of Article 11 taken alone, our analysis also
suggests that Article 14 is engaged, as Clause 9 seeks to impose
particular requirements on picketing protests organised by trade unions,
but not on those organised by other groups.
4. Reserve powers in relation to facility time (Clause 13)
Clause 13 of the Bill gives Ministers discretion to make wide-ranging
amendments to primary legislation relating to trade union officials’ rights
to facility time within the public sector. The purpose of such
amendments would be to limit the percentage of working time and/or
restrict the proportion of the employer's pay bill dedicated to facility time,
including by imposing changes on contracts of employment. In the
Commission's analysis, these open-ended powers could be used to
introduce disproportionate interference to freedom of association rights
under Article 11. The power to impose contractual changes could also
amount to an unjustified and disproportionate restriction of the right to
respect for possessions under Article 1, Protocol 1.2 Again, Article 14 is
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'Possessions' under Article 1, Protocol 1 can include contractual rights: A,B and Company AS v
Germany (1978) 14 DR 146
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likely to be engaged, as the provisions only relate to employees of public
sector organisations.
5. Investigation and enforcement powers of Certification Officer
(Clauses 15, 16 and 17)
Clauses 15, 16 and 17 of the Bill, together with Schedules 1 and 2, give
new investigation and enforcement powers to the Certification Officer
(CO). In summary, the CO will be empowered to investigate a union's
suspected failure to comply with a 'relevant obligation' listed in Schedule
1.3 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.
Article 6(1) of the ECHR provides that, in the determination of their civil
rights and obligations, everyone is entitled to a fair hearing by an
independent and impartial tribunal. In the Commission's assessment, the
CO's power to instigate complaints, as well as investigate and adjudicate
them, compromises the impartiality of the CO and therefore raises
substantive concerns about compliance with Article 6.
6. International human rights standards
The Bill's provisions are also relevant to the UK's international legal
obligations. The right of trade unions to function freely, including the right
to take strike action, is specifically recognised in the following
international treaties that the UK has ratified:
 Article 8 of the International Covenant of Economic, Social and
Cultural Rights4
 Article 28 of the Charter of Fundamental Rights of the EU
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The CO already has investigatory powers in relation to financial affairs, and will soon have such
powers in relation to a union's register of members.
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In its list of issues relating to the 6th periodic report on ICESCR by the UK government,
the UN Committee on Economic, Social and Cultural Rights has requested information
on the adoption and content of the Trade Union Bill and whether it contains any
exemptions to trade union rights under ICESCR.
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 Article 6(4) of the European Social Charter 1961
Further, the relevant expert Committees of the ILO have progressively
developed a right to strike under Articles 3 and 10 of ILO Convention 87.
(Please see the Annex to this briefing for more details on these
provisions.)
The Commission's analysis suggests that the regressive nature of
measures in the Bill may cause them to fall short of the UK's obligations
under these treaties. This applies in particular to the provisions on
minimum ballot turnout (Clause 2), minimum ballot support requirements
for important public services (Clause 3), the requirement for two weeks’
notice of industrial action (Clause 7) and for limiting the duration of a
ballot mandate (Clause 8), union supervision of picketing (Clause 9) and
facility time (Clause 13).
These international obligations would also be relevant to assessment of
the justification and proportionality of the Bill's new restrictions on rights
under Article 11 (freedom of assembly and association) of the ECHR,
were this question to be considered by the European Court on Human
Rights.
7. About the Equality and Human Right 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
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Annex: Text of relevant international human rights standards
International Covenant on Economic, Social and Cultural Rights
1966
Article 8 ICESCR provides:
1. The States Parties to the present Covenant undertake to ensure:
(a) the right of everyone to form trade unions and join the trade union of
his choice, subject only to the rules of the organisation concerned, for
the promotion and protection of his economic and social interests. No
restrictions may be placed on the exercise of this right other than those
prescribed by law and which are necessary in a democratic society in
the interests of national security or public order or for the protection of
the rights and freedoms of others;
(b) the right of trade unions to establish national federations or
confederations and the right of the latter to form or join international
trade union organisations;
(c) the right of trade unions to function freely subject to no limitations
other than those prescribed by law and which are necessary in a
democratic society in the interests of national security or public order or
for the protection of the rights and freedoms of others;
(d) the right to strike, provided that it is exercised in conformity with the
laws of the particular country;
2. This article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces or of the police
or of the administration of the State.
3. Nothing in this article shall authorise States Parties to the International
Labour Organisation Convention of 1948 concerning Freedom of
Association and Protection of the Right to Organise to take legislative
measures which would prejudice, or apply the law in such a manner as
would prejudice, the guarantees provided for in that Convention”.
Charter of Fundamental Rights of the European Union 2000
Article 28 of the EU Charter provides:
Right of collective bargaining and action
Workers and employers, or their respective organisations, have, in
accordance with Community law and national laws and practices, the
right to negotiate and conclude collective agreements at the appropriate
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levels and, in cases of conflicts of interest, to take collective action to
defend their interests, including strike action.
European Social Charter 1961
Article 6(4) of the ESC provides:
With a view to ensuring the effective exercise of the right to bargain
collectively, the Contracting Parties undertake: … [to] recognise
4. the right of workers and employers to collective action in cases of
conflicts of interest, including the right to strike, subject to obligations
that might arise out of collective agreement previously entered into.
In January 2015, the European Committee on Social Rights published
Conclusions concerning statutory rules on strike ballots in the UK and
deemed them incompatible with the proper exercise of the right to strike.
In Conclusions XIX-3, 2010, the Committee stated:
“The Committee considered in its previous conclusions … that the
requirement to give notice to an employer of a ballot on industrial
action, in addition to the strike notice that must be issued before
taking action, is excessive (even the simplified requirements
introduced by the Employment Relations Act (ERA)2004 ). As
there have been no changes to the situation, the Committee
reiterates its finding that the situation is not in conformity with
Article 6 §4 of the Charter in this respect.”
International Labour Organisation (ILO) Convention 87
Article 3 of ILO Convention 87 provides:
1. Workers' and employers' organisations shall have the right to draw up
their constitutions and rules, to elect their representatives in full freedom,
to organise their administration and activities and to formulate their
programmes.
2. The public authorities shall refrain from any interference which would
restrict this right or impede the lawful exercise thereof.
Art 10 provides:
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In this Convention the term organisation means any organisation of
workers or of employers for furthering and defending the interests of
workers or of employers.
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