Trade Union Bill

Written evidence submitted by The Law Society of Scotland (TUB 41)

The Trade Union Bill


1. The Law Society of Scotland aims to lead and support a successful and respected Scottish legal profession. Not only do we act in the interests of our solicitor members, but we also have a clear responsibility to work in the public interest. That is why we actively engage and seek to assist in the legislative and public policy decision making processes.

2. To help us do this, we use our various Society committees which are made up of solicitors and non-solicitors to ensure we benefit from knowledge and expertise from both within and out with the solicitor profession.

3. The Law Society of Scotland’s Employment Law Sub-committee welcomes the opportunity to respond to the UK Parliament’s Public Bill Committee call for written evidence on the Trade Union Bill wish to put forwards the following comments in response.

General Comments

4. We note that the Scottish Government has recently made an official request that Scotland be excluded from the provisions of the Bill [1] . We further note that the Bill provides for the detail to be set out in regulations. We would suggest that the Minister be required to consult with the devolved administrations on any proposed regulations, to ensure that full consideration is given to the impact and effect that the Bill’s provisions will have in those separate jurisdictions.

5. We previously responded to the UK Government consultations which relate to the Bill - Hiring agency staff during strike action: reforming regulation [2] and the Consultation on tackling intimidation of non-striking workers. [3] Many of the comments which we put forward to those consultations are also relevant to the call for evidence.

6. We limit our observations to questions which require to be addressed in order that the measures in the Bill comply with international legal obligations, including, but not limited to, the European Convention on Human Rights (ECHR), which we discuss further below.

Specific Comments

Relevant Obligations

7. We note that the relative obligations that arise to be considered are:

8. The European Convention on Human Rights (ECHR)

9. The European Social Charter (ESC)

10. International Labour Organisation Standards (ILO)

11. The International Covenant on Economic, Cultural and Social Rights (ICESCR)

Human Rights Compatibility Statement

12. We note that the UK Government has issued a statement of compatibility. However, we believe that a number of questions arise about the Bill’s compatibility with ECHR.

13. For example, the statement analyses individual sections of the Bill in relation to ECHR obligations, but does not provide any analysis or statement on the extent to which all the measures, taken together, would satisfy the test of proportionality, or would breach Article 11 on ECHR.

Compatibility with Wider Human Rights Obligations

14. The Memorandum on Human Rights Compatibility [4] published July 2015 did not address compatibility with ESC, ILO and ICESCR obligations. The ESC, ILO and ICESCR obligations are more detailed and specific than ECHR obligations, although not necessarily more onerous. We would suggest that further consideration be given to whether the Bill’s provisions comply with these ratified treaties.

15. To what extent should the Bill accord with internationally-recognised definitions and standards? For example, the ILO recognises the requirement for restrictions on the right to strike in "essential" public sector roles, rather than "important" roles. If so, we ask if the UK Government intends to publish evidence of how compliance with these other human rights instruments is achieved?

Apparent Absence of Consultation

16. The Memorandum on Human Rights Compatibility identifies some, but not all, of the relevant evidential questions including necessity, proportionality and the need to protect the rights and freedoms of others. However, we understand that some issues within the Bill have not been subject to public consultation. This raises questions about those measures in the Bill for which no consultation has been undertaken, for example, the proposed prohibition of payroll deduction of trade union subscriptions (DOCAS).

Memorandum on Human Rights Compatibility

17. We would suggest that the Memorandum on Human Rights Compatibility appears to be incomplete. For example, it does not address the human rights implications of the proposed ban on payroll deduction of trade union subscriptions in the public sector.

18. We wonder whether the UK Government intends to extend or expand the Memorandum on Human Rights Compatibility to include an analysis of the human rights compatibility of those measures excluded from the document published in July 2015?

19. In relation, in particular, to the proposed 40% threshold for industrial action in "important public services", the UK Government makes reference to a potential breach of Article 11, but relies upon the case of E.R.N.E v Spain (45892/09) European Court of Human Rights 21.4.2015 to allow distinctions to be drawn between one public service and others. However, in our opinion, the Bill seeks to consult on an extremely broad list of public services, including all NHS staff, fire staff and education workers, and most transport workers and immigration workers. There does not appear to be any analysis on whether the provision would remain proportionate if all the roles which are proposed within the Bill were to have the threshold imposed, as it is clear the facts in ER.N.E v Spain refer only to a comparison of one role against others.

20. In our view, the statement also does not make any reference to the actual number of roles which would be affected by the new provisions, or provide this as a proportion of the UK workforce generally, which would be required in any analysis regarding proportionality.

October 2015

Prepared 28th October 2015