Joint Committee On Human Rights

Joint Committee On Human Rights Thirteenth Report

2 Employment Relations Bill

Date introduced to the House of Commons

Date introduced to the House of Lords

Current Bill Number

Previous Reports

2 December 2003

30 March 2004

House of Lords 54

4^th, 8^th and 10^th Reports

Background

2.1 In our Fourth Report,[108] we reported our view that clauses 23 to 26 (now clauses 28 to 31) of the Employment Relations Bill would remove the incompatibility between the United Kingdom's employment legislation and the rights of employees and trade unions under ECHR Article 11 (right to freedom of association) which had been established by the European Court of Human Rights in Wilson and the National Union of Journalists and others v. United Kingdom.[109] The incompatibility arose because current legislation allows an employer to offer inducements to employees to give up their right to be members of a trade union. This was held to violate the rights of both the individuals to whom inducements were offered and the unions concerned.

2.2 In our Eighth Report,[110] we drew attention to a possibility that certain Government amendments to the Bill could give rise to a threat of a violation of Articles 10 (freedom of expression) and 11 (freedom of association) of the ECHR, and to a violation of Article 14 (freedom from discrimination) taken together with those articles, because the amendments would allow a person to be excluded or expelled from a trade union for any reason related to his or her activities as a member of any political party. These amendments are now contained in clause 32 of the Bill.

2.3 We also published a letter from Professor the Lord Wedderburn of Charlton QC arguing that we had been wrong in our Fourth Report to conclude that the provisions of what are now clauses 28 to 31 of the Bill would be effective to remove the incompatibility established in the Wilson case, above.

2.4 In our Tenth Report,[111] we reconsidered the matter raised by Professor the Lord Wedderburn of Charlton QC taking account of a letter from Mr. John Hendy QC. We concluded:

a) that the Bill would not allow trade unions, as distinct from their individual members, to obtain an adequate remedy for violations of their Article 11 rights, where the employer is not a public authority within the meaning of the Human Rights Act 1998, section 6;

b) that the state is entitled to legislate in such a way that an employer's intention is a relevant factor when determining the unacceptability under Article 11 of legislation allowing more favourable terms to be offered to some employees than to others, but that it would be desirable to amend the Bill to make it unlawful to offer such inducement when the employee is making the offer with a purpose (not necessarily 'the sole or main purpose') of inducing employees to give up their rights under Article 11;

c) the Bill should be amended so that each employee and trade union should have the right both not to be offered inducements to give up Article 11 rights but also a right that other employees should not be offered such inducements, even if those other employees are known in advance to be prepared to surrender their rights;

d) the proposed new section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992, now contained in clause 28 of the Bill, which would give to employees and trade unions the right not to have an offer made to employees of an inducement to give up the right to have workers' terms of employment determined by collective agreement negotiated by or on behalf of a union, should apply whether or not the union is recognised by the employer.

2.5 In these respects, we concluded that the Bill as drafted left open a clear prospect that that the legislation would fail to remove the incompatibility established in the Wilson case, above.

2.6 We have subsequently received two communications on these matters. The first is a memorandum from the Department for Trade and Industry dated 27 April 2004 ('the DTI memorandum'),[112] directed to the issues outlined in paragraphs 2.2 to 2.5 above. The other is a submission from the Institute for Employment Relations ('the IER paper') prepared by Professor Keith Ewing and Mr. John Hendy QC, dated 27 April 2004,[113] relating to the issue outlined in paragraph 2 above.[114]

2.7 We have given further consideration to the issues in the light of those communications, and now report our views on each of those issues.

Expulsion from union for reasons related to the political activities of the member

2.8 The IER paper deals extensively with the implications of the ECHR and other international instruments for clause 32 of the Bill in the light of decisions of courts and tribunals in the United Kingdom. Essentially it argues that it is permissible to allow trade unions to expel members for reasons related to their political activities, because:

a) there is a significant problem of infiltration of trade unions by right wing political activists;[115]

b) the right to join a trade union under Article 11 does not confer that right irrespective of the rules of the union. Unions themselves have rights under Article 11 which include the right to regulate admission and expulsion in accordance with their rules;[116]

c) the existing legislation on the subject (Trade Union and Labour Relations (Consolidation) Act 1974, section 174) prevents unions from expelling members by reason of their political activities, potentially violating the unions' right to be free not to associate with people of whom it disapproves;[117]

d) the interference with that right cannot be justified under ECHR Article 11.2 as a proportionate response to a pressing social need to protect members' rights under Articles 10 and 11 to take part in political activities, because the promotion of racist views does not enjoy the protection of Article 10;[118]

e) the amendment to section 174 contained in the Bill would not necessarily allow unions to exercise their Article 11 rights fully because it merely allows a union to expel a member for reasons 'wholly or mainly' (rather than 'entirely' as at present) attributable to conduct on behalf of a political party, but does not allow a union to expel a person merely for membership of a political party, or where conduct on behalf of the party is merely a subordinate reason for the expulsion.[119]

2.9 The concern set out in the IER paper that the proposed amendment to section 174 does not go far enough to protect the unions' Article 11 rights contrasts with the concern expressed in our Third Report that the amendment goes too far towards authorising unions to interfere with members' right to conduct political activities.

2.10 In relation to the latter concern, the DTI memorandum notes that mere membership of a political party is not easy to distinguish from participating in the activities of the party, as membership may necessarily entail some degree of participation. Even if a person is expelled from a union for participating in the activities of a political party, membership of the party may be an underlying reason for the expulsion. As a result, unions have been unsure of the extent to which section 174 of the 1992 Act currently allows them to expel members who are members of or participating in the activities of extreme political parties, although the memorandum acknowledges that a recent decision of the Employment Appeal Tribunal ('EAT') has lessened those concerns by holding that membership of a party does not include any participation in the party's activities.[120]

2.11 The DTI memorandum explains that clause 32 of the Bill amends section 174 of the 1992 Act by:

a) permitting a union to expel a person on account of his or her participation in the political activities of a political party even if membership of the party is a subsidiary reason; and

b) putting in statutory form the conclusion of the EAT that membership of a political party does not include activities undertaken by a person as a member of the party.[121]

2.12 The memorandum goes on to note the argument advanced by Mr. Hendy QC before the EAT (and elaborated in the IER submission by Professor Ewing and Mr. Hendy: see paragraph 2.8(b) above) that in its present form section 174 of the 1992 Act is incompatible with a right conferred on unions by Article 11 of the ECHR not to associate with people of whose political views they disapprove (a 'negative right of association'). The memorandum points out that, as observed above, this claim is 'diametrically opposed' to the view we have previously expressed that the amendments proposed in clause 32 of the Bill, by extending the freedom of unions to expel people on the ground of their political conduct, might unjustifiably infringe the rights of the members under ECHR Articles 10 and 11.[122]

2.13 In the DTI memorandum, the Government accepts that the "negative right of association" exists, but argues that, where that right competes with the political rights of individuals under ECHR Articles 10 and 11, a balance must be struck, an exercise for which states are allowed a wide margin of appreciation.[123] The Government does not consider that either the current law under section 174 of the 1992 Act as it stands or the amendments proposed in clause 32 of the Bill would take the United Kingdom outside its margin of appreciation. Accordingly the Government considers both the current law and the proposed amendments to be compatible with the rights of unions and their members under ECHR Articles 10 and 11.

2.14 We make no comment on the compatibility of section 174 of the 1992 Act in its current form with rights under Articles 10 and 11. The necessity for a statutory restriction on the freedom of trade unions, unusually if not uniquely among private bodies, to decide whom they will admit to membership has not been the subject of any inquiry by us. In relation to the compatibility of the amendments proposed in clause 32 with those rights, we note that the DTI memorandum does not explain the reasons for striking the balance between the competing rights in the manner proposed. Having regard to the information provided by the IER paper about infiltration of unions by right-wing political parties, we accept that it would be legitimate to allow unions to exclude from membership people who are engaged in the activities of political parties where those activities stir up hatred against people or groups on racial, national, ethnic or religious grounds.[124]

2.15 However, the amendments would allow unions to expel members for participating in the activities of any political party whatever. This might authorise an unjustifiable interference with freedom of expression and association under ECHR Articles 10 and 11. The exercise of the power by unions in individual cases could well be justifiable on the facts, allowing the United Kingdom to defend itself successfully against a complaint before the European Court of Human Rights. Nevertheless, if the power were to be exercised in an unjustifiable way it would probably not be possible for a person to claim a remedy before a court or tribunal for a violation of political freedoms under ECHR Articles 10 and 11, as trade unions are not likely to be held to be public authorities within the meaning of section 6 of the Human Rights Act 1998 and so are not subject to a legal duty under that section to act in a manner compatible with Convention rights.

2.16 For this reason, we are not persuaded that the amendments proposed in clause 32 go no further than necessary to advance a legitimate aim under ECHR Articles 10 and 11.

2.17 It follows that we are not persuaded either by the suggestion advanced in the IER paper that it is necessary to authorise an even more extensive interference by trade unions with members' political freedoms in order to avoid a violation of unions' "negative right of association" under ECHR Article 11.

Remedies for trade unions independently of their individual members

2.18 The Government does not believe that our concern about the absence of an independent remedy for trade unions is well founded. It considers that in the Wilson and Palmer case before the European Court of Human Rights "the infringement of the rights of the applicant unions simply resulted from and was consequential upon the infringement of the rights of their members rather than an infringement of a free standing right of the unions".[125] The DTI memorandum draws particular attention to certain passages from the judgment of the Court showing that the offer of an inducement to employees to give up their Convention rights was at the forefront of the Court's mind when holding that there had been a violation of ECHR Article 11.[126] The Government therefore takes the view that it is sufficient to provide a remedy for aggrieved individuals, and that this will adequately (albeit indirectly) protect the rights of the union without the need to allow unions to bring proceedings on their own account.[127]

2.19 We accept that a remedy obtained by an individual will often have the effect of indirectly vindicating the rights of the union. On the other hand, there may be circumstances in which it is desirable for the union to bring proceedings in its own name. For example, where no individual is prepared to take action, the union will be without a remedy under the proposed new section 145B of the 1992 Act proposed in clause 28 of the Bill. Article 13 of the ECHR requires an effective remedy to be available before a national authority for any violation of a Convention right. Although Article 13 was not included among the rights which became part of municipal law in the United Kingdom through the Human Rights Act 1998, it binds the United Kingdom in international law and can be the subject of an application to the European Court of Human Rights. We consider that failing to provide unions with an avenue for redressing a violation of their right under Article 11 could result in a violation of both the Article 11 right and the right to an effective remedy for that violation. We draw this to the attention of each House.

Employer's purpose in offering more favourable terms to some employees than to others

2.20 We welcome the careful consideration given by the Government to our suggestion that an employer should be liable for offering different terms of employment to different employees where one of the employer's purposes (not necessarily the sole or main purpose) was to achieve the end of collective bargaining as the means of determining the terms of employment for the work force. We accept the point made in the DTI memorandum[128] that 'in cases where the purpose of the employer is in fact to retain or reward valuable staff one of the results, if the employer's offer is accepted, may be that particular terms of the workers will cease to be determined by collective agreement', so that it would be possible for a tribunal to find that the purpose of the offer was to produce a situation in which the terms for the work force as a whole inevitably ceased to be determined by collective agreement.

2.21 In the light of this, we accept that there is a case for retaining the 'sole or main purpose' test, and relying on tribunals to 'apply the test in the new section 145B [of the 1992 Act] sensibly to distinguish between cases where offers are made for the purpose of, in effect, achieving derecognition of a union and cases where they are made for the purpose of retaining or rewarding valuable staff.'[129] We recommend that the effect of the provision in practice should be kept under review and that amending legislation should be introduced as a matter of urgency if the practice of tribunals turns out not to protect the Article 11 right to collective bargaining in a reliable way.

Right not to have inducements to forego Article 11 rights offered to other employees

2.22 The DTI memorandum rightly identifies the two separate issues raised in the Summary and paragraph 1.7 of our Tenth Report:

a) the possibility that an employer will avoid making an offer in breach of proposed new section 145A of the 1992 Act by inviting workers who might be prepared to surrender their rights to make an offer to the employer;

b) the possibility that a worker who wishes to maintain his or her rights might have a right that the employer should not make an offer of more favourable terms to those workers who are known to be willing to surrender their rights in exchange for those advantages.

2.23 In relation to the first issue, we accept the Government's argument that the scenario envisaged is to some degree unrealistic, and that at some stage (unless the employer is committed from the start to accept any offer made by a worker) the employer is likely to have to make a counter-offer, bringing himself or herself within the scope of the proposed new section.[130] We find this more persuasive than the Government's invocation of the duty of courts and tribunals under section 3 of the Human Rights Act 1998 to read and give effect to all legislation in a manner compatible with Convention rights so far as it is possible to do so.[131] In our view, it is insufficiently certain that the proposed new section would be interpreted in the desired manner for us to be confident that section 3 would have provided an adequate protection for the rights concerned had we thought that the rights were seriously at risk.

2.24 In relation to the second issue, we accept the Government's argument that the basis of the violation of Article 11 rights established in the Wilson and Palmer judgment of the European Court of Human Rights was that the offer was made to members of the union to give up their rights. We therefore consider that it is legitimate for the Government to take the view that there is currently no legal duty to change the law in relation to other possible violations, although we consider that the issue should be kept under review.

Right not to be induced to give up rights

2.25 The Government considers that the rights of non-recognised unions in relation to collective bargaining are adequately (albeit indirectly) protected by the opportunity to apply for recognition, making use if necessary of the arbitration procedure contained in Schedule A1 to the 1992 Act (introduced by the Employment Relations Act 1999). Introducing legislation in the present Bill to deal with non-recognised unions could upset 'the balance achieved by the combination of voluntary and statutory means of obtaining recognition that has existed since the provisions of the 1999 Act came into force.'[132]

2.26 We recognise the force of this last consideration, but we doubt that the availability of a procedure for obtaining recognition can be said to provide adequate protection for a violation of the rights of a non-recognised union, at least in the short term. We draw this matter to the attention of each House.

108 Fourth Report, Session 2003-04, Scrutiny of Bills: Second Progress Report, HL Paper 34, HC 303, para. 3.5. Back

109 (2002) 35 EHRR 523, Eur. Ct. H.R. Back

110 Eighth Report, Session 2003-04, Scrutiny of Bills: Third Progress Report, HL Paper 49, HC 427, para. 2.6. Back

111 Tenth Report, Session 2003-04, Scrutiny of Bills: Fourth Progress Report, HL Paper 64, HC 503, paras. 1.4-1.8. Back

112 See Appendix 2a. Back

113 See Appendix 2b. Back

114 Further submissions from Professor Lord Wedderburn, dated 11 May (see Appendix 2c) and from Mr Hendy, dated 20 May (see Appendix 2d), were received too late to be taken into account in this report. Back

115 Appendix 2b, para. 1. Back

116 ibid., para. 10, referring to the Wilson case, above, and Cheall v. United Kingdom (1986) 8 EHRR 74, Eur. Commn. H.R. Back

117 Ibid., para. 12. Back

118 ibid., para. 13, referring to Jersild v. Denmark (1994) 19 EHRR 1, Eur. Ct. H.R. Back

119 Ibid., para. 29. Back