Trade Union Bill

Written evidence submitted by K D Ewing, Professor of Public Law

King’s College London (TUB 21)

Constitutional Implications of the Trade Union Bill

Introduction

1 The Trade Union Bill was published on 15 July 2015. It was accompanied by proposals to amend the Conduct of Employment Agencies and Employment Businesses Regulations 2003, as well as various consultation documents. A statement by the Minister for Business and Enterprise shortly thereafter proposed to end the use of the check off in the public sector.

2 Taken together, it appears that the package - of which the Bill is a large part – is designed to

· reduce the effectiveness of public sector trade unions;

· undermine the financial relationship between trade unions and the Labour party, and thereby weaken the Labour party; and

· restrict the freedom of expression of trade unions in relation to picketing, protest and leverage.

3 In apparent pursuit of these objectives, the Bill contains proposals that will impose new restrictions on the right to organise, the right to workplace representation, and the right to bargain collectively. It also introduces new restrictions on both the right to strike and trade union political freedom, while exposing trade union administration to eye-watering levels of State supervision.

4 In drawing the Public Bill Committee’s attention to a number of the constitutional implications of the government’s proposals, it is to emphasised that the provisions of the Bill are to be seen in the context of a system in which trade unions are already very highly regulated, mainly as a result of a number of restrictions introduced by governments between 1979 and 1997.

Rule of Law

5 The rule of law is widely understood to be one of the core principles of the British constitution: indeed according to Lord Hope of Craighead, it is the ‘ultimate controlling factor on which our constitution is based’. [1] The principle is acknowledged in the Constitutional Reform Act 2005, s 1, but is not defined. Addressing this latter provision in 2007, however, Lord Bingham said that

The existing principle of the rule of law requires compliance by the state with its obligations in international law, the law which whether deriving from treaty or international custom and practice governs the conduct of nations. I do not think this proposition is contentious. [2]

6 The Bingham proposition applies to ILO Conventions ratified by the United Kingdom as it does to all other treaties. The United Kingdom has ratified all eight core ILO Conventions, and at least four Conventions dealing with freedom of association. Indeed the British government has recently reaffirmed ‘the commitment to effectively [implement] ’ several of the Conventio ns ratified by the United Kingdom, including those relating to freedom of association. [3] It was the Thatcher government that ratified ILO Convention 151, which is considered below.

· ILO Convention 87

7 Article 3 of ILO Convention 87 provides that

(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.

Also relevant is Article 11, which provides that ‘Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise’. The government is failing in this latter duty by proposing measures that compound existing concerns about Article 3.

8 Convention 87 has been held by both the supervisory bodies to include the right to strike. [4] The ILO supervisory bodies accept that certain limits may be imposed on the right to strike, including procedural requirements of various kinds. In relation to ‘the quorum and requisite majority for taking strike decisions’, however, the Committee of Experts has explained:

In many countries legislation subordinates the exercise of the right to strike to prior approval by a certain percentage of workers. Although this requirement does not, in principle, raise problems of compatibility with [Convention 87], the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice… If a Member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level. [5]

9 The Bill contains two thresholds to which these established principles apply (clauses 2 and 3): the requirement in all sectors that 50% of those affected should vote, and the additional requirement in some sectors that at least 40% of those eligible to vote should do so in favour of the action. In assessing the compatibility of these thresholds with ILO standards, the Committee’s attention is drawn to a long-running complaint against Bulgaria, where it is understood that the law permits industrial action only if it has the support of a majority of those eligible to vote (that it is to say 50% plus 1). Trade unions in Bulgaria complained that these statutorily imposed ballot thresholds were inconsistent with ILO Convention 87, and the Committee of Experts agreed, rejecting the Bulgarian government’s claim that its strike ballot threshold was ‘liberal in character’, and ‘democratic’ in approach’. [6]

10 The ILO Committee of Experts pointed out that ‘account should only be taken of the votes cast’, while any ‘required quorum and majority should be fixed at a reasonable level’. [7] Neither requirement being met, the Bulgarian government was urged to change the law ‘in order to bring it into closer conformity with the principles of freedom of association’. [8] That request has been repeated on several occasions since. [9] In determining whether the Trade Union Bill’s required quorum and majority [are set] at a reasonable level’, it may be necessary to take into account not only the categories of workers to which the new thresholds will apply (‘important’ though not ‘essential’ public services as defined by the ILO supervisory bodies), but also whether the voting method (mandatory postal voting) is best calculated to ensure the participation necessary for the thresholds to be met.

· Ballots and strike-breakers

11 In determining whether the thresholds are reasonable, it may be necessary in addition to take into account the consequences of the ballot. Even though the high thresholds are met, the government also proposes that employers should be free to use agency workers as strike-breakers in lawful disputes. So far as the compatibility of this imminent change to the law with ILO Convention 87 is concerned, it will be noted that in its General Survey in 2012, the ILO Committee of Experts explained that

The Committee considers that provisions allowing employers to dismiss strikers or replace them temporarily or for an indefinite period are a serious impediment to the exercise of the right to strike, particularly where striking workers are not able in law to return to their employment at the end of the dispute. [10]

12 The foregoing passage reinforces a similar passage in an earlier General Survey (1994) in which it is said that

A special problem rises when legislation or practice allows enterprises to recruit workers to replace their own employees on legal strike. The difficulty is even more serious if, under legislative provisions or case-law, strikers do not, as of right, find their job waiting for them at the end of the dispute. The Committee considers that this type of provision or practice seriously impairs the right to strike and affects the free exercise of trade union rights. [11]

13 Similarly, in a complaint against the United States, where temporary replacements are permitted, the Committee on Freedom of Association has said that ‘if a strike is otherwise legal, the use of labour drawn from outside the undertaking to replace strikers for an indeterminate period entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights’. [12] This is precisely the situation that the government will permit by revoking regulation 7 of the 2003 regulations.

14 It is not formally proposed by the government that workers replaced by agency strike-breakers will be stopped from returning to work. There are nevertheless two points to address here. The first is that (with some exceptions) the supervisory bodies have made it clear that the use of replacement labour during a strike is itself a threat to the right to strike, even if workers are entitled to return to work at the end of the dispute. And secondly, under the government’s current proposals there is no guarantee that workers will ever be able to return to their jobs, as employers will be able to prolong disputes indefinitely by the use of agency workers, who may be engaged to undercut as well as replace striking workers.

· ILO Conventions 98 and 151

15 So far as relevant, ILO Convention 98 provides that:

Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

16 In view of the nature of the attack on public sector trade unions in particular, the corresponding provisions of ILO Convention 151 are also engaged. So far as relevant, the provisions of the latter include –

Article 6

1. Such facilities shall be afforded to the representatives of recognised public employees' organisations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work.

2. The granting of such facilities shall not impair the efficient operation of the administration or service concerned.

3. The nature and scope of these facilities shall be determined in accordance with the methods referred to in Article 7 of this Convention, or by other appropriate means.

Article 7

Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.

Article 9

Public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions.

17 Various provisions of the Bill, as well as the subsequent announcement by the Minister for Business and Enterprise, appear to breach these provisions in a number of ways. So far as the Bill is concerned, the concern here relates to the power given to ministers in clause 13 to rewrite the terms of collective agreements. So far as I am aware, this is the first time in British history that a government has taken the power to interfere with an autonomous process in this way, and to act so transparently in breach of its duty to promote collective bargaining.

18 So far as the minister’s announcement is concerned, this amounts to a prohibition on the right to bargain about check off arrangements. In a long-running case before the Committee of Experts from Congo, it was reported that ‘the deduction of trade union dues by employers and their transfer to the unions is not a matter that should be excluded from the scope of collective bargaining’. The Committee requested the Government ‘to indicate whether the abolition of the check-off system in 1991 has led to such an exclusion’. [13]

Constitutional Standards

19 Although the rule of law is one of our most cherished constitutional principles and practices, there are of course many others, several of which various provisions of the Bill also challenge. But before moving on to consider some of these in more detail below, it is clearly important that governments comply with the letter and spirit of their legal obligations, particularly where – as in the case of ILO Conventions - they have so recently renewed their vow to do so. The commitment made in the EU-Korea FTA is likely to be repeated in other FTAs to which this country is a party.

20 It remains to be seen of course whether the ILO supervisory bodies agree that any or all of the various provisions of the Bill referred to above meet the government’s various ILO obligations. But if this is a matter about which the government is confident, it will have no hesitation in undertaking now to repeal any of the offending provisions of the Bill once enacted, should the ILO Committee of Experts take a different view. Nor will it object to amendments designed to ensure that the powers in the Bill must be exercised consistently with these obligations.

· Principle of Liberty

21 It is a fundamental principle of law in this country that people are free to go about their business without being stopped by the police, unless they are suspected of having committed an offence, in which case they may be arrested. Indeed so important is this principle that it was regarded as a ‘constitutional’ principle by a Scottish court. [14] At common law, the police have no right to stop, detain or search individuals, though there are a number of statutes that provide clear exceptions to this. The bottom line (by way of example), nevertheless, is that ‘her refusal to give her name, which however irritating to the police was entirely lawful’. [15]

22 It is important fully to comprehend what is being proposed by the Trade Union Bill (clause 9), quite apart from the legitimate concern about armbands, badges and the like:

· A picket supervisor engaged in lawful activity (indeed in Convention protected activity) may be required by a police constable (whether or not in uniform) to produce a written document (the letter of authorisation);

· It will be necessary for this purpose for the police officer to stop and detain the individual, for as long as it takes for an exchange to take place, for the individual to produce the letter, and for the letter to inspected by the officer;

· The demand may be made by the police officer even though the individual in question has not committed a criminal offence, and is not suspected of having committed an offence.

23 Failure to provide the letter of authorisation is not an offence, but there is no right on the part of the supervisor to ignore the constable’s demand, meet it with a testy reprove, and move on. This is because failure to provide the letter of authorisation will have legal consequences, in the sense that the picketing may thus be rendered unlawful and actionable at the suit of the employer. In giving the police the power to demand to see the letter of authorisation, the police are in effect being used as agents of the employer for the purposes of enforcing the civil law, not the criminal law. This is quite unusual.

24 Moreover, it is striking that there are no formalities or safeguards to be complied with when the demand is made to see a letter of authorisation. This contrasts with the stop and search powers in the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000. [16] In these cases the police officer may be required to provide

· documentary evidence that he or she is a constable, if the latter is not in uniform;

· his or her name and the name of the police station to which he or she is attached;

· the object of the proposed search;

· the reasons for using the power; and

· a record of the search after it has taken place.

An individual stopped while engaged in lawful and Convention protected activities might reasonably expect to have at least the same level of procedural courtesy as someone stopped while suspected of criminal or terrorist-related activities.

· Churchill Convention

25 An altogether different concern relates to clause 10 (the political levy). In the 1940's, Sir Winston Churchill said that:

it has become a well established custom that matters affecting the interests of rival parties should not be settled by the imposition of the will of one side over the other'. [17]  

A few years later Quinton Hogg (later Lord Chancellor in Thatcher governments) said that

'it is repugnant to the feelings of all decent people … to use the power of a Party majority in the House of Commons to force a division on something which is designed solely to do political damage to their opponents about a controversial matter concerning the machinery of election and party administration'. [18]  

26 This convention has been accepted and applied in recent years, and was generally followed during the Labour governments between 1997 and 2010. The major reform to party funding introduced by the Political Parties, Elections and Referendums Act 2000 (during a period of Labour government) was the product of a report of the Committee on Standards in Public Life, to which all the major political parties made submissions. It is notable that in their evidence to the latter Committee, the Conservative party said that

The question of trade union funding of parties is not of direct concern to the Conservative Party.   We recognise the historic ties that bind the trade union movement with the Labour Party. [19]  

One wonders what has changed and why. But I am not a ware that the Labour party has agreed to the political levy provisions of the Bill.

27 More recently, the convention is to be seen operating in the inquiry conducted by the Committee on Standards in Public Life in 2011. [20] On this occasion (under a Coalition government) , the recommendations of the Committee were not implemente d, mainly because the political parties were unwil ling to accept them . Consistently with the spirit of the Churchill convention, the package collapse d. It is true of course that the latter Committee recommended the introduction of opting in to trade union political funds , to replace opting out . But the Committee made clear that this was part of a package that was to be implemented in full, including caps on the donations to all parties, and the introduction of limited public funding to meet the shortfall o f private funding that would be caused .

28 This is not to claim that the Churchill convention should be regarded as giving one party a veto over all changes to party funding and election administration. But there would have to be strong and compelling reasons to justify a partisan attack on the opposition , undertaken unilaterally by the party of government. One possible justification would be that the existing regulatory framework (where one exis ts) is ineffective. But this is self-evidently not the case here , and would in any event invite only a proportionate response to address an identifiable mischief . Many have looked for evidence, but few have been able to provide it:  

He [Mr Robert Carr] thought that he might be able to supply cases of specific cases [of abuse relating to opting out of the pol i tical levy] if given the time - an expectation apparently not fulfilled ’.

(Royal Commission on Trade Unions and Employers’ Associations, 1965-68, Report, Cmnd 3623, para 923 ) .

(Frank White MP) … have you any evidence at all to put before this Committee that that people are paying a political levy unwillingly?

(Dr James McFarlane, EEF) Not anything I think you would reco gnise as evidence, no .

(HC 243- i (Select Committee on Employment, 1983-84).

We have received no evidence to suggest that the legislation is not working satisfactorily, and no case has been made out for any reform. We do not propose any change in the law in this respect’ .

(Committee on Standards in Public Life, The Funding of Political Parties in the United Kingdom , Cm 4057-1, 1997, para 6.23 ) .

· Rule against Bias

29 Altogether different again are the very important provisions relating the Certification Officer, concerns about which have been largely inaudible amid the din relating to ballots, picketing and political funds. The Certification Officer is a state official, the office having been created in 1976 as a low-key administrative position (albeit one occupied in the past by distinguished people). The principal responsibility when the office was created was to issue certificates of independence to trade unions that met the statutory test of independence. Since then, however, the Certification Officer has acquired a number of other roles, and is something of a constitutional curiosity, unusually combining executive, quasi-judicial and rule-making powers. Once a constitutional curiosity, under the Bill the CO will become a constitutional anachronism.

30 The role of the Certification Officer has gradually changed so that beneath the benign title of the office has developed what is now openly referred to as the ‘trade union regulator’ The Secretary of State appoints the Certification Officer, with a duty only to ‘consult’ ACAS before doing so. [21] There are no prescribed qualifications for appointment to this office (such as independence of government or party), and there is no guarantee that people appointed in the future will not be fully signed up to the department’s ideological agenda. This is extremely important given the content of the Bill, which include extensive new powers of inspection, investigation, and imposition of penalties. The CO is a position that ought not to be appointed by a minister, particularly now that we have a Judicial Appointments Commission.

31 Just as great a concern are the new powers entitled ‘exercise of powers without application’, which mean that the CO will be able to initiate action against a trade union even though there has not been a complaint by a member of the union (clause 14(3)). [22] This applies specifically in relation to trade union elections, trade union political funds, and trade union amalgamations. It needs hardly be said that as a matter of constitutional principle this is an extraordinary proposal, the Certification Officer being empowered on behalf of the State to

· bring a complaint against a trade union;

· make a decision over the very matter about which he has brought the complaint; and

· impose a fine on the trade union he has investigated and upon which he has decided (see para 32 below). [23]

32 This is an obvious violation of what one Lord Chief Justice (Hewart) referred to as a principle of ‘fundamental importance’ that ‘justice should not only be done but should manifestly and undoubtedly be seen to be done’. [24] But this is not the end of it, with the Bill proposing what are effectively quasi-criminal sanctions relating to wide-ranging matters, including (i) breaches of union rules and (ii) trade union elections. [25] Hitherto civil matters only, these will now attract financial penalties that are indistinguishable from fines in criminal proceedings. This power to impose a fine arises after a finding that there has been a breach of obligation by the union, on the basis of the civil rather than the criminal standard of proof. No guidance is provided as to the circumstances in which a fine may be imposed, in what is an open-ended discretionary power. The CO is to become the judge in his own cause: accuser and adjudicator.

Party Funding and Electoral Competition

33 A final concern relates to the impact the Bill will have on trade union funding, and consequently Labour party funding. Political action is recognised by the ILO Committee of Experts as one of the ways by which trade unions can promote their interests, [26] and indeed in some cases it is the only form of action that will secure the removal of restrictive laws (such as the Trade Union Bill). It is in any event inevitably protected by the ECHR, its importance acknowledged by the European Court of Human Rights, which recognised in ASLEF v United Kingdom that

Historically, trade unions in the United Kingdom, and elsewhere in Europe, were, and though perhaps to a lesser extent today are, commonly affiliated to political parties or movements, particularly those on the left. They are not bodies solely devoted to politically-neutral aspects of the well-being of their members, but are often ideological, with strongly held views on social and political issues. [27]

34 Trade union political activity is already subject to detailed legal restraints. Legislation prohibits the use of trade union funds unless a number of statutory requirements are met:

· A political resolution must be in force in relation to the trade union in question, whereby the members have approved the adoption of political objects within the preceding 10 years;

· Any political activity falling within the statutory definition of political objects must be funded from a separate political fund in accordance with the political fund rules of the union;

· Every member of the union must be free to claim exemption from contributing to the political fund and must not suffer discrimination or disability for doing so. [28]

The Thatcher government introduced political fund ballots instead of ‘opting in’. If there is a case for either, there is no case for both; that is to say no case for opting in every five years, as well as political fund ballots every ten years.

· Partisan Legacy

35 Trade union political fund legislation was first introduced in 1913, when the Liberal government of the day struck a compromise: trade unions could engage in political activities, provided that members who supported other parties were not required to make a payment to a party or candidates to which they were opposed. [29] The existing regulatory framework which has evolved as result is sometimes said to have created a ‘triple lock’ of protection: the individual who does not want to associate with the political activities of his or her union can vote in the political fund ballot every 10 years, opt out of paying the levy, and ultimately leave the union; there is no compulsory membership.

36 The Liberal compromise was shattered by the Tories in the 1920s, with Tory backbenchers then as now demanding tighter restrictions on trade union political activity, no doubt as much to discomfit the Labour party as to respond to any concern about the welfare of trade union members. The mood was caught in 1924 by a Cabinet minister who wrote to colleagues in 1924 that

the major part of the outcry against the political levy is not motivated by a burning indignation for the trade unionist, who is forced to subscribe to the furtherance of political principles which he abhors…… It is based on a desire to hit the Socialist party through their pocket … we should not delude ourselves as to our intentions. [30]

37 The hawks - led by Churchill (before he discovered the constitutional convention referred to above, when the boot was on the other foot) - nevertheless got their way, and the law was changed by the Trade Disputes and Trade Unions Act 1927, as part of the reparations demanded by the Baldwin government after the General Strike of 1926. Trade union members were now required to opt in to the political levy rather than opt out. [31] Members were thus no longer presumed obliged to pay the levy in accordance with the decision of the union; they were presumed unwilling to pay the levy unless they expressly indicated a wish to do so. Once opted in, however, there was no need to renew the opt in periodically thereafter.

38 The law was changed back to its original position by the Attlee government in 1946, and opting out has remained the practice ever since, despite 35 years of Conservative or Conservative-led governments in the period since 1946. The matter was examined by the Royal Commission on Trade Unions and Employers’ Associations appointed in 1965, but the Commission rejected proposals from Conservative party sources to restore the system of opting in as being unnecessary and based on a misconception. [32] The Thatcher government also examined the matter, but Cabinet records suggest that the idea of reintroducing opting in was vetoed amidst concerns that such a move would ‘affect the funding of the Labour party, would create great unease and should not be entered into lightly’. [33]

· Partisan Funding Effects

39 It is difficult to know at this stage how a change to opting in will affect trade union political funds. Any calculation will also have to take into account the proposed abolition of the check off across the public sector, which will have implications for the collection of trade union contributions generally. But even without the latter, the Committee on Standards in Public Life confessed in 2011 that it had no idea what effect opting in would have on the level of trade union members paying the political levy. [34] If the latter Committee had no idea, it is unlikely that the government will have any better idea. It is, however, reasonable to seek clarification and certainty about the predicted effect of such a change, given its potential implications for the democratic process and competitive elections.

40 It would be wholly disingenuous to ignore the wider implications of the Bill, however expedient it may be to do so. As everyone fully appreciates, clause 10 is not just about whether and how trade union members pay the political levy. But while awaiting better information from the government about the likely effect of the change, there are several reasons to be pessimistic about the impact, the first being the experience of the past. As already pointed out a system of opting in was introduced to replace opting out in 1927. Work undertaken on historical records about 35 years ago suggests that across the board contributions to trade union political funds will fall from current levels of about 88% but that the impact will vary dramatically from union to union – depending to a large extent on the vigour of the union’s response. [35]

41 However, the experience from 1927 to 1946 may not be a reliable predictor of what will happen in the future. It will be necessary to take into account the changes to the way in which trade unions are organized and subscriptions are collected in the period since. The relatively high levels of opting in in some cases between 1927 and 1946 may be explained in part by the presence of collecting stewards and greater face to face contact between members and branch officials than is possible today. It is reasonable also to assume that high levels of opting in will be less likely where branches are larger and more widely scattered, including many workplaces to which stewards have no right of access. Other organizational changes may also have an impact.

42 It appears in any event that the Bill is designed to maximize the difficulties associated with a move to opting in. I am referring here to the need to give written notice of opt in, the government apparently hostile to electronic activity by trade unions, determined it seems to ensure that trade unions continue to be the caricatures they are portrayed. And I am referring also to the inexplicable need to renew opt ins every five years, an obligation absent in the 1927 legislation. This will be chaotic to administer, and it is difficult to think of a benign explanation. Moreover, if as the Bill suggests there is to be a common renewal date, it will also mean that new members will have to renew their opt in long before 5 years has passed. There is absolutely no reason for any of this, in view of the qualified nature of the commitment to opt in under the Bill – qualified in the sense that it can be withdrawn at any time.

· Distorting Fair Election Competition

43 If it is difficult to know precisely how the change to opting in will affect trade union political fund income, it will be equally difficult as a result to predict what effect it will have on the income of the Labour party. The Labour party has seen very significant changes to its structure recently, these initiated by a former leader. It remains the case, nevertheless, that trade unions continue to play a key role in the constitution of the party, and that they continue to be a major source of financial support. Recent press reports – some possibly exaggerated - suggest that while less than half of party income is provided by trade unions annually, this may rise to more than half in an election year.

44 As recognized by the Committee on Standards in Public Life in 2011, the system of party funding in the United Kingdom is like a jigsaw puzzle with many inter-connected pieces. It is not possible to tinker with one part without affecting the integrity of the whole. For all its imperfections, the system has created an equilibrium of sorts, albeit an equilibrium some feel now tilts gently in a Conservative direction. The role of trade unions in funding the Labour party is crucial in maintaining that equilibrium, and the sense of fair rivalry that it is the objective of any system of party funding to create. Even if press reports are exaggerated, any cut to trade union funding will inevitably have a damaging effect.

45 It is thus not to be overlooked that at the present time (and this has generally been true historically) the Conservative party does not noticeably operate at a competitive financial disadvantage in relation to other parties. Although some believe that the Labour party is well funded by trade unions, the Conservative party is widely perceived as receiving more large donations from wealthy individuals. In any event, it is not to be overlooked that a donation of £3 million from a trade union represents the £3 of one million individual members. This compares with £1 million to the Conservative party from a wealthy individual, which represents £1 million from the individual in question. A union is donating in a representative capacity; a wealthy individual is donating in a personal capacity.

46 Clause 10 is thus hugely significant constitutionally. For reasons already explained, party funding reform should not take place in a piecemeal way, without addressing the system as a whole. And it is clearly the case that any reform initiative should not target the finances of one party at the expense of the others. If the government is determined to proceed with the changes in the Trade Union Bill, it has a responsibility – not only to the Labour party, but also to the electorate as a whole – to put in place corresponding controls on its own funding, and to replenish the funding about to be displaced. Otherwise, the government will stand to be condemned nationally and internationally for using the power of the State to weaken Her Majesty’s Opposition for its own private partisan purposes. [36]

Conclusion

47 The foregoing suggests that key provisions of the Bill and related announcements have been ill thought out and hastily prepared. But while the foregoing provides a flavour of some of the constitutional concerns that have been provoked, they are by no means exhaustive. Other witnesses will no doubt invite the Committee to consider the extent to which many of the foregoing measures are compatible with the government’s obligations under the European Convention on Human Rights.

48 The jurisprudence of the European Court of Human Rights to date suggests that there may be questions relating to Articles 8 (right to private life), [37] 11 (freedom of assembly and association), [38] and 14 (freedom from discrimination in the application of Convention rights). [39] It is probably unnecessary for these concerns to be rehearsed here. It should be pointed out, however, that in dealing with complaints the Strasbourg court attaches considerable weight to ILO Conventions, and the jurisprudence of the ILO supervisory bodies (the Committee of Experts, and the Committee on Freedom of Association).

49 The Strasbourg Court also attaches much weight to the European Social Charter of 1961, another international treaty. The latter was ratified in 1962 by a Conservative government, and provides by article 5 protection for the right to organize, and by article 6(2) and (4) protection for the right to bargain collectively as well as the right to strike. The United Kingdom is currently in breach of Articles 5 and 6, for reasons relating to our laws which already (i) violate trade union autonomy and (ii) impose unduly tight restrictions on industrial action. In its most recent cycle of supervision, the European Committee of Social Rights reported as follows -

The Committee concludes that the situation in the United Kingdom is not in conformity with Article 6{4) of the 1961 Charter on the grounds that

· The possibilities for workers to defend their interests through lawful collective action are excessively limited;

· The requirement to give notice to an employer of a ballot on industrial action is excessive;

· The protection of workers against dismissal when taking industrial action is insufficient. [40]

50 The other major issue of course relates to devolution, and the provisions of the Scotland Act 1998 in particular. Again this is an issue that is likely to be raised by other witnesses, better able to comment on the matters than I am. There are, however, three obvious matters that will need to be explored

· how will it be possible to extend the ban on the use of the check off to Scottish public bodies, in view of the requirement that Scottish ministers should not act in breach of Convention rights?

· which minister will have authority to rewrite collective agreements (in breach of Convention rights) relating to workplace facilities in Scotland? Is this a power that will be exercised by the Secretary of State for Scotland?

· what account has been taken for the purposes of clause 9 (picketing) of the fact that there is a different system of police powers and criminal justice in Scotland, operating alongside the reserved system of trade union law?

These questions need to be answered, as do more fundamental questions about the nature of the government’s mandate to impose any of the provisions of the Bill on the people of Scotland.

October 2015


[1] R (Jackson) v Attorney General [2005] UKHL 56, para [107].

[2] Lord Bingham, ‘The Rule of Law’ [2007] 66 Cambridge Law Journal 1.

[3] EU Korea Free Trade Agreement, art 13.4: ‘The Parties reaffirm the commitment to effectively implementing the ILO Conventions that Korea and the Member States of the European Union have ratified respectively’. The agreement is between the EU and its member states on the one hand and Korea on the other.

[4] See B Gernigon, A Odero and H Guido, ‘ILO Principles Concerning the Right to Strike’ (1997) (1998) 137 Int’l Lab Rev 441. For current controversy, see J Bellace, ‘The ILO and the Right to Strike’ (2014) 153 Int’l Lab Rev 29

[4]

[4]

[5] See Gernigon, Odero and Guido, above, where this passage from the 1994 General Survey is reproduced.

[6] ILO, Committee of Experts, Observation Adopted 1998 (Bulgaria) (ILO, 1999).

[7] Ibid.

[8] Ibid.

[9] See most recently, ILO, Committee of Experts, Observation Adopted 2014 (Bulgaria) (ILO, 2015). For discussion of a recent case from El Salvador to similar effect, see A Bogg, 'Case No. 2896 El Salvador CFA Complaint'. (2015) 1 International Labor Rights Case-Law (forthcoming)

[10] ILO, General Survey on the Fundamental Conventions Concerning Rights at Work in Light of the ILO Declaration on Social Justice and a Fair Globalisation, 2008 (ILO, 2012), para 52.

[11] See Gernigon, Odero and Guido, above, where this passage is reproduced.

[12] ILO, Committee on Freedom of Association, Report No 284, Case No 1523 (United States) (ILO, 1992).

[13] ILO, Committee of Experts, Observation Adopted 2010 (Congo) (ILO, 2011). More recently: ‘The Committee hopes that the current reform of the Labour Code will provide the opportunity to ensure that the question of the deduction of trade union dues by employers and their transfer to trade unions can be included in the scope of collective bargaining ILO, Committee of Experts, Direct Request Adopted 2013 (Congo) (ILO, 2014).

[14] Jackson v Stevenson (1879) 2 Adam 255.

[15] R (Laporte) v Gloucestershire Chief Constable [2006] UKHL 55, para [55].

[16] See Home Office, Police and Criminal Evidence Act Code A (2013), and the accompanying Code on the use of stop and search powers under the Terrorism Act 2000. For Scotland, see Police Scotland, Know Your Rights [nd]: http://www.scotland.police.uk/assets/pdf/keep_safe/know-your-rights.

[17] HC Debs, 16 February 1948, col 859.

[18] HC Debs, 15 December 1949, col 2990 (opposing the annual disclosure of political party accounts).

[19] Committee on Standards in Public Life, The Funding of Political Parties in the United Kingdom , Cm 4057-1, 1997, p 238.

[20] Committee on Standards in Public Life, Party Political Finance, Cm 8208, 2011.

[21] TULRCA 1992, s 254.

[22] Along with Schedule 2 this makes multiple amendments to TULRCA 1992.

[23] The concern here of course is that by instigating a complaint against a particular trade union, the Certification Officer will be tainted by bias in cases involving that trade union, and perhaps eventually all trade unions. On the rule against bias in adjudication, see A W Bradley, K D Ewing and C J S Knight, Constitutional and Administrative Law (16th ed), chapter 24.

[24] R v Sussex JJ, ex parte McCarthy [1924] 1 KB 256.

[25] Proposed new TULRCA 1992, s 256D.

[26] ILO, General Survey on the Fundamental Conventions Concerning Rights at Work, above, para 115.

[27] [2007] IRLR 361, para 50. See M Ford and J Hendy QC, ASLEF v UK, An IER Briefing (2007). http://www.ier.org.uk/system/files/ASLEF+v+UK+final+for+website+corr+by+jh1.pdf.

[28] TULRCA 1992, ss 71-96.

[29] Trade Union Act 1913, which created the framework of the modern law.

[30] This passage from the document is reproduced in K D Ewing, Trade Unions, the Labour Party and the Law – A Study of the Trade Union Act 1913 (1983), pp 50-51.

[31] Trade Disputes and Trade Unions Act 1927, s 4.

[32] Report of the Royal Commission on Trade Unions and Employers’ Associations 1965-1968, Cmnd 2623, 1968, paras 912-927.

[33] TNA, CAB 128/80 (‘Most Confidential Record’ of Ministerial Meeting, 9 February 1984).

[34] Committee on Standards in Public Life, Party Political Finance, above, para 11.44.

[35] Ewing, Trade Unions, the Labour Party and the Law, above, pp 56-63.

[36] A blueprint for funding reform already exists in the most recent report on the matter by the Committee on Standards in Public Life. This is not at this stage a legal question though it may become one. There are strong parallels between the political levy provisions of the Bill (and the related ‘Gagging’ Act 2014) and similar partisan restraints recently introduced in New South Wales. The High Court of Australia struck down the latter provisions in a unanimous decision (6:0), as discriminatory and unconstitutional restrictions on the freedom of political communication: Unions NSW v NSW [2013] HCA 58. See T Ayres and K D Ewing, ‘O’Farrell’s funding flop ensures freedom’, The Australian, 2 January 2014.

[37] Gillan and Quinton v United Kingdom [2009] ECHR 28 (clause 9).

[38] Demir and Baycara v Turkey [2008] ECHR 1345, and a burgeoning progeny on the right to strike (check off ban, rewriting collective agreements, strike restrictions).

[39] Danilenkov v Russia, Application No 67336/01, 10 December 2009 (discriminatory treatment of trade unionists).

[40] Council of Europe, Social Rights Committee, Conclusions XX-3 (2014), p 24.

Prepared 14th October 2015