14. Memorandum from the Institute of Employment
Rights
1. INTRODUCTION
1.1 The Institute of Employment Rights welcomes
the decision by the Joint Committee on Human Rights to conduct
a programme of inquiries into the United Kingdom's implementation
of obligations under the principal international human rights
treaties. We particularly welcome the decision to examine the
implications of the recent observations of the UN Committee on
Economic, Social and Cultural Rights. The Institute of Employment
Rights was established in 1989 as a think tank supported by the
trade union movement. The Institute conducts a wide range of research
and educational activities, and in 1994 was granted charitable
status. We have attracted a great deal of support for our activities,
and our members include the general secretaries of Britain's largest
trade unions, most of which also make generous donations to help
fund our activities.
1.2 Our first concern in this submission
is to draw attention to the fact that the ICESCR is only one of
a number of international treaties which deal with economic, social
and cultural rights. Also relevant are the conventions of the
International Labour Organisation, a UN agency which is the source
of a number of treaties protecting the rights of workers and trade
unions. The ILO is particularly important for present purposes
in view of the fact that ILO Convention 87 is expressly referred
to in article 8(3) of the International Covenant on Economic,
Social and Cultural Rights as setting the minimum standard with
which countries should meet. The other treaty to which we refer
is the Council of Europe's Social Charter which deals with a range
of social and economic rights including trade union rights and
the right to strike.
1.3 These different treaties are supervised
by different supervisory bodies. We give an account of the conclusions
of the supervisory bodies of both the ILO and the Council of Europe
on trade union rights, including the right to strike. After considering
the conclusions of the different bodies, our second concern is
to assess what needs to be done (a) to prevent violations of international
human rights obligations on the scale we are about to relate;
and (b) to remedy the violations that have been identified by
the different supervisory bodies of the UN, the ILO and the Council
of Europe. In light of the interests of the Institute and the
terms of reference of the Joint Committee, our main focus in the
latter part of the submission is with the right to strike. We
note in passing that the right to strike has been robustly defended
in a recent decision of the Constitutional Court of South Africa:
[The right to strike] is of both historical
and contemporaneous significance. In the first place, it is of
importance for the dignity of workers who in our constitutional
order may not be treated as coerced employees. Secondly, it is
through industrial action that workers are able to assert bargaining
power in industrial relations. The right to strike is an important
component of a successful collective bargaining system.
(NUMSA v Bader Bop (Pty) Ltd 2003 (3) SA 513)
2. THE INTERNATIONAL
COVENANT ON
ECONOMIC, SOCIAL
AND CULTURAL
RIGHTS
2.1 The ICESCR covers a wide range of economic,
social and cultural rights. It has been ratified by the United
Kingdom. Our main concern in this submission, however, is with
article 8 which deals with core trade union rights. Article 8
provides as follows:
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.
The 1997 Report of the Committee on Economic, Social
and Cultural Rights
2.2 In its Report on the United Kingdom
in 1997, the Committee on Economic, Social and Cultural Rights
addressed a number of issues. These included the following:
10. The Committee also finds disturbing the
position of the State party that provisions of the Covenant, with
certain minor exceptions, constitute principles and programmatic
objectives rather than legal obligations, and that consequently
the provisions of the Covenant cannot be given legislative effect.
11. The Committee considers that failure
to incorporate the right to strike into domestic law constitutes
a breach of article 8 of the Covenant. The Committee considers
that the common law approach recognising only the freedom to strike,
and the concept that strike action constitutes a fundamental breach
of contract justifying dismissal, is not consistent with protection
of the right to strike. The Committee does not find satisfactory
the proposal to enable employees who go on strike to have a remedy
before a tribunal for unfair dismissal. Employees participating
in a lawful strike should not ipso facto be regarded as
having committed a breach of an employment contract. The Committee
is also of the view that the legally accepted practice of allowing
employers to differentiate between union and non-union members
by giving pay raises to employees who do not join a union is incompatible
with article 8 of the Covenant.
2.3 The Committee made the following suggestions
and recommendations:
21. The Committee suggests that the State
party take appropriate steps to introduce into legislation the
International Covenant on Economic, Social and Cultural Rights,
so that the rights covered by the Covenant may be fully implemented.
It is encouraged that the State party has taken such action with
respect to the European Convention on Human Rights and is of the
view that it would be appropriate to give similar due regard to
the obligations of the Covenant. . .
23. The Committee recommends that the right
to strike be established in legislation and that strike action
no longer entail the loss of employment, and expresses the view
that the current notion of freedom to strike, which simply recognises
the illegality of being submitted to an involuntary servitude,
is insufficient to satisfy the requirements of article 8 of the
Covenant. The Committee further recommends that the right of employers
to grant financial incentives to employees who do not join unions
be abolished.
The 2002 Report of the Committee on Economic, Social
and Cultural Rights
2.4 Some of these concerns were addressed
again in the Committee's report for 2002:
11. The Committee deeply regrets that, although
the State party has adopted a certain number of laws in the area
of economic, social and cultural rights, the Covenant has still
not been incorporated in the domestic legal order and that there
is no intention by the State party to do so in the near future.
The Committee reiterates its concern about the State party's position
that the provisions of the Covenant, with minor exceptions, constitute
principles and programmatic objectives rather than legal obligations
that are justiciable, and that consequently they cannot be given
direct legislative effect (see paragraph 10 of the Committee's
concluding observations of December 1997 (E/C.12/1/Add.19)).
12. The Committee regrets that the State
party has not yet prepared a national human rights plan of action
as recommended in paragraph 71 of the 1993 Vienna Declaration
and Programme of Action, and is deeply concerned about the delegation's
statement that there is no intention of doing so.
13. The Committee is concerned that human
rights education provided in the State party to schoolchildren,
the judiciary, prosecutors, government officials, civil servants
and other actors responsible for the implementation of the Covenant
does not give adequate attention to economic, social and cultural
rights. . .
16. The Committee reiterates its concern
that the failure to incorporate the right to strike in domestic
law constitutes a breach of article 8 of the Covenant (see paragraph
11 of the Committee's 1997 concluding observations).
2.5 Again a number of suggestions and recommendations
were made to address these and other concerns:
24. Affirming the principle of the interdependence
and indivisibility of all human rights, and that all economic,
social and cultural rights are justiciable, the Committee reiterates
its previous recommendation (see paragraph 21 of its 1997 concluding
observations) and strongly recommends that the State party re-examine
the matter of incorporation of the International Covenant on Economic,
Social and Cultural Rights in domestic law. The Committee points
out that, irrespective of the system through which international
law is incorporated in the domestic legal order (monism or dualism),
following ratification of an international instrument, the State
party is under an obligation to comply with it and to give it
full effect in the domestic legal order. In this respect, the
Committee draws the attention of the State party to its General
Comment No. 9 on the domestic application of the Covenant.
25. The Committee further recommends, recalling
its previous recommendation (see paragraph 33 of its 1997 concluding
observations), that the State party review and strengthen its
institutional arrangements, within the government administration,
which are designed to ensure that its obligations under the Covenant
are taken into account, at an early stage, in the Government's
formulation of national legislation and policy on issues such
as poverty reduction, social welfare, housing, health and education.
Given that its general comments are based upon experience gained
over many years, including the examination of numerous States
parties' reports, the Committee urges the State party to give
careful consideration to its general comments and statements when
formulating policies that bear upon economic, social and cultural
rights.
26. The Committee encourages the State party,
as a member of international financial institutions, in particular
the International Monetary Fund and the World Bank, to do all
it can to ensure that the policies and decisions of those organisations
are in conformity with the obligations of States parties under
the Covenant, in particular with the obligations contained in
articles 2.1, 11.2, 15.4 and 23 concerning international assistance
and cooperation.
27. The Committee urges the State party to
prepare, as soon as possible, a national human rights plan of
action in accordance with paragraph 71 of the 1993 Vienna Declaration
and Programme of Action.
28. The Committee strongly recommends that
the State party establish a national human rights commission for
England, Wales and Scotland, with a mandate to promote and protect
all human rights, including economic, social and cultural rights.
. .
30. The Committee urges the State party to
ensure that human rights education curricula and training programmes
for schoolchildren and for the judiciary, prosecutors, government
officials, civil servants and other actors responsible for the
implementation of the Covenant give adequate attention to economic,
social and cultural rights. . .
34. The Committee reiterates its previous
recommendations (see paragraph 23 of the Committee's 1997 concluding
observations) that the right to strike be incorporated in legislation
and that strike action no longer entail the loss of employment.
. .
44. The Committee requests the State party
to disseminate the present concluding observations widely at all
levels of society, in particular among State officials and the
judiciary. It also encourages the State party to involve non-governmental
organisations and other members of civil society in the preparation
of its fifth periodic report.
The Status of the Covenant in the Domestic Legal
Order
2.6 It is important to recall that ratification
of the ICESCR carries with it the corresponding duty of states
parties to give effect to the Covenant in the domestic legal order.
The UN Economic and Social Council set out the obligation as follows:
4. In general, legally binding international
human rights standards should operate directly and immediately
within the domestic legal system of each State party, thereby
enabling individuals to seek enforcement of their rights before
national courts and tribunals. The rule requiring the exhaustion
of domestic remedies reinforces the primacy of national remedies
in this respect. The existence and further development of international
procedures for the pursuit of individual claims is important,
but such procedures are ultimately only supplementary to effective
national remedies.
5. The Covenant does not stipulate the
specific means by which it is to be implemented in the national
legal order. And there is no provision obligating its comprehensive
incorporation or requiring it to be accorded any specific type
of status in national law. Although the precise method by which
Covenant rights are given effect in national law is a matter for
each State party to decide, the means used should be appropriate
in the sense of producing results which are consistent with the
full discharge of its obligations by the State party. The means
chosen are also subject to review as part of the Committee's examination
of the State party's compliance with its obligations under the
Covenant.
6. An analysis of State practice with
respect to the Covenant shows that States have used a variety
of approaches. Some States have failed to do anything specific
at all. Of those that have taken measures, some States have transformed
the Covenant into domestic law by supplementing or amending existing
legislation, without invoking the specific terms of the Covenant.
Others have adopted or incorporated it into domestic law, so that
its terms are retained intact and given formal validity in the
national legal order. This has often been done by means of constitutional
provisions according priority to the provisions of international
human rights treaties over any inconsistent domestic laws. The
approach of States to the Covenant depends significantly upon
the approach adopted to treaties in general in the domestic legal
order.
7. But whatever the preferred methodology,
several principles follow from the duty to give effect to the
Covenant and must therefore be respected. First, the means of
implementation chosen must be adequate to ensure fulfilment of
the obligations under the Covenant. The need to ensure justiciability
(see para. 10 below) is relevant when determining the best way
to give domestic legal effect to the Covenant rights. Second,
account should be taken of the means which have proved to be most
effective in the country concerned in ensuring the protection
of other human rights. Where the means used to give effect to
the Covenant on Economic, Social and Cultural Rights differ significantly
from those used in relation to other human rights treaties, there
should be a compelling justification for this, taking account
of the fact that the formulations used in the Covenant are, to
a considerable extent, comparable to those used in treaties dealing
with civil and political rights.
8. Third, while the Covenant does not
formally oblige States to incorporate its provisions in domestic
law, such an approach is desirable. Direct incorporation avoids
problems that might arise in the translation of treaty obligations
into national law, and provides a basis for the direct invocation
of the Covenant rights by individuals in national courts. For
these reasons, the Committee strongly encourages formal adoption
or incorporation of the Covenant in national law.
(Economic and Social Council, The Domestic Application
of the Covenant: 01/12/98; E/C12/1998/24, CESCR General Comment
9)
3. THE ILO AND
FREEDOM OF
ASSOCIATION
3.1 The United Kingdom has ratified 86 ILO
Conventions which give rise to binding obligations under international
law. The government also reaffirmed its commitment to the
core ILO Conventions when in 1998—along with the other members
of the ILO—it signed the ILO Declaration on Fundamental
Principles and Rights at Work. For present purposes the most
important ILO Conventions are conventions 87 (the Freedom of Association
and Right to Organise Convention, 1948) and 98 (the Right to Organise
and Collective Bargaining Convention, 1949). Both of these conventions
have been ratified by the United Kingdom, as have a number of
other freedom of association conventions. Both are part of a group
of ILO Conventions which are classified as "human rights"
instruments.
ILO Convention 87 and 98
3.2 ILO Convention 87 is designed to protect
trade unions from state interference. Its two central provisions
are articles 2 and 3. These provide as follows:
Article 2
Workers and employers, without distinction whatsoever,
shall have the right to establish and, subject only to the rules
of the organisation concerned, to join organisations of their
own choosing without previous authorisation.
Article 3
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.
There is no express protection of the right
to strike in Convention 87. But it has been implied by the supervisory
agencies (on which see para 3.4 below) from the wording of article
3(1). According to the Committee of Experts:
The Committee has always considered that the
right to strike is one of the essential means available to workers
and their organisations for the promotion and protection of their
economic and social interests as guaranteed by Articles 3, 8 and
10 of the Convention (General Survey, paragraph 200). It has also
taken the view that restrictions relating to the objectives of
a strike and to the methods used should be sufficiently reasonable
as not to result in practice in an excessive limitation of the
exercise of the right to strike (General Survey, paragraph 226.
(ILO Committee of Experts 1989).
3.3 Convention 98 in contrast is designed
to protect workers and trade unions from employers, but also imposes
a duty on the part of the State to promote collective bargaining.
So far as relevant, it provides as follows:
Article 1
1. Workers shall enjoy adequate protection
against acts of anti-union discrimination in respect of their
employment.
2. Such protection shall apply more particularly
in respect of acts calculated to—
(a) make the employment of a worker subject
to the condition that he shall not join a union or shall relinquish
trade union membership;
(b) cause the dismissal of or otherwise prejudice
a worker by reason of union membership or because of participation
in union activities outside working hours or, with the consent
of the employer, within working hours.
Article 2
1. Workers' and employers' organisations
shall enjoy adequate protection against any acts of interference
by each other or each other's agents or members in their establishment,
functioning or administration.
2. In particular, acts which are designed to
promote the establishment of workers' organisations under the
domination of employers or employers' organisations, or to support
workers' organisations by financial or other means, with the object
of placing such organisations under the control of employers or
employers' organisations, shall be deemed to constitute acts of
interference within the meaning of this Article.
Article 3
Machinery appropriate to national conditions
shall be established, where necessary, for the purpose of ensuring
respect for the right to organise as defined in the preceding
Articles.
Article 4
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.
3.4 These instruments are supervised in
two ways. The first is by the Committee of Experts and the other
is by the Committee on Freedom of Association. The former is an
independent committee of independent jurists (whose members in
the past have included Earl Warren, later to become a distinguished
Chief Justice of the US Supreme Court). Current members include
Mrs Justice Laura Cox. The Committee on Freedom of Association
is a tripartite body on which workers' representatives sit with
employers' representatives. Since 1989 both Committees have found
the United Kingdom to be in breach of both of these Conventions.
It is true that since the election of the present government in
1997, a number of reforms have been made to British labour law.
It remains the case nevertheless that these reforms do not address
all the concern made by the ILO supervisory agencies, with the
result that we remain in breach of our legal obligations. In view
of the terms of reference of the Joint Committee, we concentrate
here on Convention 87, though there may still be issues of non
compliance in relation to Convention 98. These relate to:
— The right of employers to establish
staff associations in order to block an application under the
statutory recognition procedure by an independent trade union.
— The right of the employers to offer
financial inducements to workers to surrender trade union representation
following trade union derecognition.
— The failure to restore the duty on
the part of ACAS to promote collective bargaining, which is facilitated
by the 1999 Act but not actively promoted.
The United Kingdom and Convention 87
3.5 The areas where we remain in breach
of Convention 87 relate principally to the right to strike. Since
1989 a number of concerns have been expressed by the supervisory
bodies. We include here extracts from the Observations of the
ILO Committee of Experts for 1989 when these concerns were first
raised, and also the Observations made in 1999, 2001 and 2003.
We have not included the Observations made in the intervening
period, as these have been generally repeated in the more recent
Observations. The areas of concern include:
The narrow definition of trade dispute
Other changes to the definition of "trade
dispute" in the 1974 Act also appear to impose excessive
limitations upon the exercise of the right to strike: (i) the
definition now requires that the subject-matter of a dispute must
relate "wholly or mainly" to one or more of the matters
set out in the definition—formerly it was sufficient that
there be a "connection" between the dispute and the
specified matters. This change appears to deny protection to disputes
where unions and their members have "mixed" motives
(for example, where they are pursuing both "industrial"
and "political" or "social" objectives). The
Committee also considers that it would often be very difficult
for unions to determine in advance whether any given course of
conduct would, or would not, be regarded as having the necessary
relation to the protected purposes; (ii) the fact that the definition
now refers only to disputes between workers and "their"
employer could make it impossible for unions to take effective
action in situations where the "real" employer with
whom they were in dispute was able to take refuge behind one or
more subsidiary companies who were technically the "employer"
of the workers concerned, but who lacked the capacity to take
decisions which are capable of satisfactorily resolving the dispute;
and (iii) disputes relating to matters outside the United Kingdom
can now be protected only where the persons whose actions in the
United Kingdom are said to be in contemplation or furtherance
of a trade dispute relating to matters occurring outside the United
Kingdom are likely be be affected in respect of one or more of
the protected matters by the outcome of the dispute. This means
that there would be no protection for industrial action which
was intended to protect or to improve the terms and conditions
of employment of workers outside the United Kingdom, or to register
disapproval of the social or racial policies of a government with
whom the United Kingdom has trading or economic links. The Committee
has consistently taken the view that strikes that are purely political
in character do not fall within the scope of the principles of
freedom of association. However, it also considers that trade
unions ought to have the possibility of recourse to protest strikes,
in particular where aimed at criticising a government's economic
and social policies (General Survey, paragraph 216). The revised
definition of "trade dispute" appears to deny workers
that right.
(ILO Committee of Experts, 1989)
The Exclusion of Secondary Action
Taken together, these changes appear to make
it virtually impossible for workers and unions lawfully to engage
in any form of boycott activity, or "sympathetic" action
against parties not directly involved in a given dispute. The
Committee has never expressed any decided view on the use of boycotts
as an exercise of the right to strike. However, it appears to
the Committee that where a boycott relates directly to the social
and economic interests of the workers involved in either or both
of the original dispute and the secondary action, and where the
original dispute and the secondary action are not unlawful in
themselves, then that boycott should be regarded as a legitimate
exercise of the right to strike. This is clearly consistent with
the approach the Committee has adopted in relation to "sympathy
strikes":It would appear that more frequent recourse is being
had to this form of action (ie sympathy strikes) because of the
structure or the concentration of industries or the distribution
of work centres in different regions of the world. The Committee
considers that a general prohibition of sympathy strikes could
lead to abuse and that workers should be able to take such action
provided the initial strike they are supporting is itself lawful.
(General Survey, paragraph 217.)
(ILO Committee of Experts, 1989)
The Committee recalls that its previous comments
concerned the absence of immunities in respect of civil liability
when undertaking sympathy strikes. It pointed out in this respect
that workers should be able to take industrial action in relation
to matters which affect them even though, in certain cases, the
direct employer may not be party to the dispute.
The Committee notes that the Government reiterates
its previous comments concerning secondary action and adds that
permitting forms of secondary action would be a retrograde step
and would risk taking the United Kingdom back to the adversarial
days of the 1960s and 1970s when industrial action frequently
involved employers and workers who had no direct connection with
a dispute.
The Committee further notes the comments made
by the Trades Union Congress (TUC) of 7 November 1996 that it
is a common tactic of employers to avoid the adverse effects of
disputes by transferring work to associated employers and that
companies have restructured their businesses in order to make
primary action secondary. The Government, while indicating that
there is no official information collected to measure the extent
of this phenomenon, considers that it is fully consistent with
its legislation and the Convention for employers to mitigate the
adverse financial consequences of a strike.
(ILO Committee of Experts, 1999)
The Committee must note that, beyond the effects
that these provisions may have in respect of secondary action,
it would appear that the absence of protection against civil liability
may even have a negative effect on primary industrial action.
In these circumstances, the Committee can only reiterate its position
that workers should be able to participate in sympathy strikes
provided the initial strike they are supporting is itself lawful
and requests the Government to indicate any developments in this
regard.
(ILO Committee of Experts, 2001)
The Committee recalls that its previous comments
concerned the absence of immunities in respect of civil liability
when undertaking sympathy strikes. It notes the Government's indication
that no changes have been made in this respect. The Committee
once again recalls that workers should be able to take industrial
action in relation to matters which affect them even though, in
certain cases, the direct employer may not be party to the dispute.
This principle is of particular importance in the light of earlier
comments made by the Trades Union Congress (TUC) that employers
commonly avoided the adverse effects of disputes by transferring
work to associated employers and that companies have restructured
their businesses in order to make primary action secondary. The
Committee must reiterate that workers should be able to participate
in sympathy strikes provided the initial strike they are supporting
is itself lawful, and requests the Government to reply as soon
as possible to the issues raised by the TUC and by UNISON in this
respect.
While taking due note of the information provided
by the Government, the Committee must recall once again that workers
should be able to take industrial action in relation to matters
which affect them even though, in certain cases, the direct employer
may not be party to the dispute, and that they should be able
to participate in sympathy strikes provided the initial strike
they are supporting is itself lawful. It requests the Government
to continue to keep it informed of developments in this respect
in its future reports.
(ILO Committee of Experts, 2003)
Dismissals in connection with industrial action
The Committee considers that it is inconsistent
with the right to strike as guaranteed by Articles 3, 8 and 10
of the Convention for an employer to be permitted to refuse to
reinstate some or all of its employees at the conclusion of a
strike, lock-out or other industrial action without those employees
having the right to challenge the fairness of that dismissal before
an independent court or tribunal. The Committee on Freedom of
Association has adopted a similar approach (see Digest of Decisions
and Principles of the Committee on Freedom of Association, 3rd
edition, 1985, paragraphs 442, 444, 445, 555 and 572).
In this connection, the Committee notes that
common law strikes and most other forms of industrial action constitute
a repudiatory breach of the individual worker's contract of employment.
This has the consequence that the employer may lawfully treat
the employment relationship as at an end without more ado. This
happens only infrequently in practice. But it can happen, and
the Committee is aware that there have been a number of situations
in recent years where employers have used the fact that their
employees were on strike as an excuse for dispensing with the
services of their entire workforce, and recruiting a new one.
The Committee also notes that a lock-out would
also constitute a repudiatory breach of the contracts of employment
of the workers concerned. However the common law does not provide
a means whereby those workers could obtain reinstatement in their
employment, no matter how arbitrary or unreasonable the employer's
behaviour had been. Furthermore, it would be in only very exceptional
circumstances that such workers could obtain other than nominal
damages at common law.
It is clear, therefore, that the common law
does not accord workers who have been dismissed in connection
with a strike, lock-out or other form of industrial action the
right to present a complaint against that dismissal to a court
or other authority independent of the parties concerned. The same
is true of statutory provision relating to unfair dismissal—subject
to the limited measure of protection which is afforded to those
who are subjected to "discriminatory dismissal" within
the meaning of section 62 of the Employment Protection (Consolidation)
Act 1978 (as amended by section 9 of the 1982 Act). The Committee
considers that this latter provision does not provide adequate
protection for the purposes of the Convention: (i) because it
still permits an employer to dismiss an entire workforce, even
where the employer has initiated a lock-out or has provoked a
strike through entirely unreasonable behaviour; and (ii) because
an employer can re-hire on a discriminatory basis so long as there
is a gap of three months between the dismissal of the "victimised"
workers and the re-hiring. Consequently, the Committee asks the
Government to introduce legislative protection against dismissal,
and other forms of discriminatory treatment such as demotion or
withdrawal of accrued rights, in connection with strikes and other
industrial action so as to give effect to the principles set out
above.
(ILO Committee of Experts, 1989)
In its previous comment, the Committee had drawn
the Government's attention to paragraph 139 of its 1994 General
Survey in which it noted that sanctions or redress measures were
frequently inadequate when strikers were singled out through some
measures taken by the employer (disciplinary action, transfer,
demotion, dismissal) and that this raised a particularly serious
issue in the case of dismissal if workers could only obtain damages
and not their reinstatement. The Committee indicated that legislation
should provide for genuine protection in this respect, otherwise
the right to strike would be devoid of content.
The Committee notes with interest the Government's
indication that it intends to allow in certain circumstances those
dismissed for taking part in lawfully organised official industrial
action to complain to a tribunal of unfair dismissal, even where
all workers have been dismissed. The Committee intends to examine
the progress made in respect of the Government's proposals in
this regard. . .
(ILO Committee of Experts, 1999)
Unjustifiable discipline
The Committee notes that section 3(1) of the
1988 Act provides that all members or former members of a union
have the right not to be "unjustifiably disciplined"
by that union. "Discipline" for these purposes includes
being expelled from the union or a branch or section thereof;
the imposition of a fine; deprivation of, or denial of access
to, the benefits, services or facilities which would otherwise
be available by virtue of union membership; or being subjected
to "any other detriment" (section 3(5)).
The grounds upon which disciplinary action would
be regarded as "unjustifed" are set out in section 3(3).
They relate principally to disciplinary measures imposed because
of: a refusal to participate in industrial action; encouraging
or assisting another person to refuse to participate in industrial
action; and complaining that a union or an official thereof has
acted, or proposes to act, in an unlawful manner.
The Committee recalls that one of the basic
rights which is guaranteed by Article 3 their constitutions and
rules free from any interference which would restrict this right
or impede the lawful exercise thereof. It is clear that provisions
which deprive trade unions of the capacity lawfully to give effect
to their democratically determined rules are, prima facie, not
in conformity with this right. Section 3 of the 1988 Act clearly
has this effect, and on that basis is not in conformity with Article
3.
The Committee, nevertheless, considers that
the right of organisations to draw up their constitutions and
rules must be subject to the need to respect fundamental human
rights and the law of the land (bearing in mind that Article 8(2)
of the Convention stipulates that the law of the land shall not
be such as to impair the guarantees provided for in the Convention).
This means that it would not be inconsistent with the requirements
of the Convention to require that union rules must not discriminate
against members or potential members on grounds of race or sex.
The same is true for provisions (such as section 3(3)(c) of the
1988 Act) which state that unions may not discipline members who,
in good faith, assert that their union has breached its own rules,
or the law of the land. However, the Committee is also of the
view that the nature and extent of legislative incursions upon
union autonomy must be limited to that which is absolutely necessary
in order to achieve these objectives—otherwise the rights
guaranteed by Article 3 would be deprived of all practical effect.
It follows that proper respect for the guarantees provided by
Article 3 requires that union members should be permitted, when
drawing up their constitutions and rules, to determine whether
or not it should be possible to discipline members who refuse
to participate in lawful strikes and other industrial action or
who seek to persuade fellow members to refuse to participate in
such action. Section 3 of the Act should be amended so as to take
account of this view.
(ILO Committee of Experts, 1989)
The Committee recalls that the previous comments
on this matter concerned the above-mentioned provisions of the
1992 Act which prevented trade unions from disciplining their
members who refused to participate in lawful strikes and other
industrial action or who sought to persuade fellow members to
refuse to participate in such action.
In its latest report, the Government states
that it strongly supports the principle that workers should be
free to join the trade union of their choice as trade unions provide
important services to their members. According to the Government,
it therefore follows that the rights of unions to discipline and
expel members need to be balanced against the rights of individuals
to acquire and retain their membership. The Government adds that,
under the law of the United Kingdom, individuals are almost invariably
breaking their contracts under which they work when they take
any form of industrial action, irrespective of whether the action
is official or unofficial, or whether the action is lawfully or
unlawfully organised. These workers can therefore be sued on an
individual basis by employers for damages. In contrast, unions
cannot be sued for damages if they organise industrial action
within the law. In these circumstances, the Government considers
that individuals should be free to decide whether or not to take
part in lawfully organised industrial action since the potential
liability is the individual's and not the union's.
The Committee must, nevertheless, once again
recall that Article 3 of the Convention concerns the rights of
trade unions to, inter alia, draw up their constitutions and rules
and to organise their activities and to formulate their programmes,
without interference by the public authorities. The free choice
to join a trade union can clearly be based on a careful consideration
of the provisions in such constitutions and rules. Furthermore,
the Committee would recall that the prohibition of such disciplinary
measures carries with it heavy financial penalties. The Committee
considers unions should have the right to determine whether or
not it should be possible to discipline members who refuse to
comply with democratic decisions to take lawful industrial action,
and that the financial penalties imposed by the legislation in
this respect constitute undue interference in the right of workers'
organisations to draw up their constitutions and rules freely
and would therefore once again ask the Government to refrain from
any such interference. As concerns the Government's argument in
respect of the liability of individual workers, the Committee
recalls the importance it attaches to the maintenance of the employment
relationship as a normal consequence of the recognition of the
right to strike.
(ILO Committee of Experts, 1999)
"The Committee recalls that its previous
comments concerned sections 64-67 of the 1992 Act which prevented
trade unions from disciplining their members who refused to participate
in lawful strikes and other industrial action or who sought to
persuade fellow members to refuse to participate in such action.
In its latest report, the Government maintains that these sections
provide necessary protections for individual workers in their
relationship with their unions and the consequent constraints
on union freedoms are justified. The Government adds, however,
that they do not operate a system of prior vetting or approval
of union constitutions or rule books by a public authority.
The Committee takes due note of this information.
It once again recalls that unions should have the right to draw
up their rules and to formulate their programmes without the interference
of the public authorities which should restrict or impede the
exercise of freedom of association and so to determine whether
or not it should be possible to discipline members who refuse
to comply with democratic decisions to take lawful industrial
action. It requests the Government to continue to keep it informed
of any developments in respect of these provisions and, in particular,
to provide in its next report any information concerning complaints
brought under section 66 and awards granted in this respect under
section 67. It further requests the Government to reply as soon
as possible to the observations made by the TUC in respect of
these provisions".
(ILO Committee of Experts, 2001)
The Committee recalls that its previous comments
in this respect concerned provisions which prevent trade unions
from disciplining their members who refuse to participate in lawful
strikes and other industrial action or who sought to persuade
fellow members to refuse to participate in such action.
The Government indicates that only 49 such complaints
have been brought in the reporting period, in spite of an increase
in the number of days of strike, which confirms that unions have
adapted to the law and are not inhibited by it when taking industrial
action. With respect to the TUC comments on the subject, the Government
maintains that these sections provide necessary protections for
individual workers in their relationship with their unions and
do not represent an undue interference in internal affairs of
trade unions, and that there is a need to reconcile the freedoms
of individuals and those of unions.
The Committee takes note of this information.
It recalls that unions should have the right to draw up their
rules without interference from public authorities and so to determine
whether or not it should be possible to discipline members who
refuse to comply with democratic decisions to take lawful industrial
action. It requests the Government to continue to keep it informed
of developments in this respect in its future reports.
(ILO Committee of Experts, 2003)
4. THE EUROPEAN
SOCIAL CHARTER
4.1 Also relevant for present purposes is
the Council of Europe's Social Charter of 1961. This is the sibling
of the European Convention of Human Rights which forms the basis
of the Human Rights Act 1998. The United Kingdom has ratified
the Social Charter (but has not ratified the Revised Social Charter
of 1996). Unlike ILO Conventions and unlike the ECHR, a State
ratifying the Social Charter is not required to accept all of
its terms. The United Kingdom has accepted 60 of the 72 numbered
paragraphs in the Social Charter. This is the lowest level of
acceptance of all the member states of the European Union, with
the exception of Denmark. The United Kingdom has not ratified
the Additional Protocol to the Social Charter (which introduces
additional rights), nor the Collective Complaints Protocol (which
allows complaints to be made to the Social Rights Committee),
nor the Revised Social Charter of 1996.
Articles 5 and 6
4.2 So far as trade union rights are concerned,
there are two provisions of the Social Charter which are particularly
important. These are articles 5 and 6, with article 6(4) being
particularly important as the first recognition of the right to
strike in an international treaty. Unlike the ICESCR (and indeed
the International Covenant on Civil and Political Rights (article
22), there is no reference to ILO Convention 87 in either articles
5 or 6 of the Social Charter. However, article 26 of the Social
Charter provides that the ILO is to be invited to participate
in a consultative capacity in the deliberations of the committee
of experts. Although the standards set by ILO Conventions and
the Social Charter are similar on most issues, there are differences.
A good example of this on the banning of trade unions at GCHQ
in 1984: although a breach of ILO Convention 87, it was not a
breach of the Social Charter (or the European Convention on Human
Rights). In recent years, however, the Social Rights Committee
appears to have adopted a position less tolerant of restraint
than the ILO supervisory bodies.
4.3 Articles 5 and 6 provide as follows:
Article 5—The right to organise
With a view to ensuring or promoting the freedom
of workers and employers to form local, national or international
organisations for the protection of their economic and social
interests and to join those organisations, the Contracting Parties
undertake that national law shall not be such as to impair, nor
shall it be so applied as to impair, this freedom. The extent
to which the guarantees provided for in this article shall apply
to the police shall be determined by national laws or regulations.
The principle governing the application to the members of the
armed forces of these guarantees and the extent to which they
shall apply to persons in this category shall equally be determined
by national laws or regulations.
Article 6—The right to bargain collectively
With a view to ensuring the effective exercise
of the right to bargain collectively, the Contracting Parties
undertake:
1. to promote joint consultation between
workers and employers;
2. to promote, where necessary and appropriate,
machinery for voluntary negotiations 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;
3. to promote the establishment and
use of appropriate machinery for conciliation and voluntary arbitration
for the settlement of labour disputes;
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 agreements previously entered into.
The European Social Charter is supervised by
the European Committee of Social Rights (hereafter the Social
Rights Committee). Its function is "to judge the conformity
of the law and practice of States party to the European Social
Charter". This is a body of distinguished jurists whose number
in the past have included Professor Sir Otto Kahn Freund (an eminent
labour lawyer) and Professor David Harris CMG (an eminent human
rights lawyer). There is not now a British member of the Committee,
an omission which the government may be able to explain. There
have now been 16 cycles of supervision by the committee. In the
last cycle of supervision, the Committee found that the United
Kingdom was complying with 23 of the 43 treaty obligations examined,
and that it was failing to comply with 16 of these obligations.
In another four cases the Committee was unable to comment because
of a lack of the necessary information.
The Right to Organise: Article 5
4.4 The Social Rights Committee found that
the United Kingdom was in breach of both articles 5 and 6 of the
Social Charter, while noting that a number of improvements had
been introduced by the Employment Relations Act 1999. But notwithstanding
these improvements, in the 16th (and most recent) cycle of supervision,
the Committee found the United Kingdom to be in breach of articles
5 and 6 on a number of grounds. So far as article 5 is concerned,
it was found that there were four breaches, as follows:
— The obligation on the part of a trade
union to give notice to the employer that it intends to hold an
industrial action ballot was said to be "excessive",
in view of the fact that "a trade union must in any event
give notice before proceeding to industrial action". The
legislation was an "unjustified impairment" of trade
union rights.
— Section 15 of TULRCA 1992 makes it
unlawful for a trade union to indemnify an individual union members
for a penalty imposed for an offence or contempt of court. This
provision was said to constitute "an unjustified incursion
into the autonomy of trade unions that is inherent in article
5".
— Section 174 of TULRCA 1992 limits
the grounds on which a person may be excluded or expelled from
a trade union. This is "an excessive restriction on the right
of a trade union to determine its conditions of membership and
goes beyond what is required to secure the individual right to
join a trade union".
— Section 65 of TULRCA 1992, "by
severely restricting the grounds on which a trade union may lawfully
discipline members", was said by the Committee to "constitute
an unjustified incursion into the autonomy of trade unions that
is inherent in article 5 of the Charter".
4.5 As a result of the foregoing, the Committee
concluded that TULRCA 1992, sections 15, 65, 174 and 226A are
in the view of the Social Rights Committee "not in conformity
with article 5 of the Charter". In the Council of Europe's
Governmental Committee which subsequently examined the report
of the Social Rights Committee the British government representative
is reported as having said that the DTI review of the Employment
Relations Act 1999 "would take into account the views of
all relevant actors, including the comments of the [Social Rights
Committee]". The Employment Relations Bill does not appear
to address any of the findings of non compliance with article
5 (with the possible exception of s 174 to a very limited extent).
The Institute of Employment Rights believes that the Joint Committee
should press the DTI to explain how it carried out the government's
undertaking to the Council of Europe's Governmental Committee
and to produce the minutes of the meetings at which the Social
Charter points were considered but evidently rejected.
The Right to Bargain Collectively: Article 6(2)
4.6 So far as article 6 is concerned, in
the 16th cycle of supervision, the Committee found that British
law was in breach of both articles 6(2) and 6(4). So far as the
former is concerned the Committee was particularly troubled that
"the law does not prevent an employer offering more favourable
terms and conditions of employment to workers who agree to forgo
collective bargaining or representation by a trade union".
The Committee referred here to TULRCA 1992, s 148, as amended
by the Employment Relations Act 1999. In drawing this conclusion,
the Committee referred to s 17 of the 1999 Act, which in its view
"has not resolved this problem". As a result the "situation"
in the United Kingdom "remains in violation of the Charter".
The Committee reported that it had "repeatedly found the
situation in the United Kingdom not to be in conformity with the
Charter because of the scope allowed to employers to undermine
collective bargaining in this manner". These earlier findings
were also referred to by the European Court of Human Rights in
Wilson and Palmer v United Kingdom [2002] IRLR 128
where it was held that British law in this area not only violated
the Social Charter but also article 11 of the ECHR. The crucial
passage of the Court's decision on article 11 reads as follows:
46. The Court agrees with the Government
that the essence of a voluntary system of collective bargaining
is that it must be possible for a trade union which is not recognised
by an employer to take steps including, if necessary, organising
industrial action, with a view to persuading the employer to enter
into collective bargaining with it on those issues which the union
believes are important for its members' interests. Furthermore,
it is of the essence of the right to join a trade union for the
protection of their interests that employees should be free to
instruct or permit the union to make representations to their
employer or to take action in support of their interests on their
behalf. If workers are prevented from so doing, their freedom
to belong to a trade union, for the protection of their interests,
becomes illusory. It is the role of the State to ensure that trade
union members are not prevented or restrained from using their
union to represent them in attempts to regulate their relations
with their employers.
47. In the present case, it was open to the
employers to seek to pre-empt any protest on the part of the unions
or their members against the imposition of limits on voluntary
collective bargaining, by offering those employees who acquiesced
in the termination of collective bargaining substantial pay rises,
which were not provided to those who refused to sign contracts
accepting the end of union representation. The corollary of this
was that United Kingdom law permitted employers to treat less
favourably employees who were not prepared to renounce a freedom
that was an essential feature of union membership. Such conduct
constituted a disincentive or restraint on the use by employees
of union membership to protect their interests. However, as the
House of Lords' judgment made clear, domestic law did not prohibit
the employer from offering an inducement to employees who relinquished
the right to union representation, even if the aim and outcome
of the exercise was to bring an end to collective bargaining and
thus substantially to reduce the authority of the union, as long
as the employer did not act with the purpose of preventing or
deterring the individual employee simply from being a member of
a trade union.
48. Under United Kingdom law at the relevant
time it was, therefore, possible for an employer effectively to
undermine or frustrate a trade union's ability to strive for the
protection of its members' interests. The Court notes that this
aspect of domestic law has been the subject of criticism by the
Social Charter's Committee of Independent Experts and the ILO's
Committee on Freedom of Association (see paragraphs 32-33 and
37 above). It considers that, by permitting employers to use financial
incentives to induce employees to surrender important union rights,
the respondent State has failed in its positive obligation to
secure the enjoyment of the rights under Article 11 of the Convention.
This failure amounted to a violation of Article 11, as regards
both the applicant trade unions and the individual applicants.
4.7 The Employment Relations Bill currently
before Parliament purports to implement the Wilson and Palmer
decision. It is regrettable that the government chose to wait
until the Strasbourg court had decided and did not move to change
the law in direct response to the much earlier findings of the
ILO Committee of Experts and the Social Rights Committee. As it
is, the Employment Relations Bill fails to implement the Strasbourg
court's decision adequately, with the result that a number of
matters remain outstanding. This gives rise to the possibility
that on this matter the United Kingdom will remain in breach of
both the ECHR and the Social Charter. There are three specific
concerns which arise:
— An employer will still be entitled
to refuse to permit an employee to be represented by a trade union
official when the employee is seeking to re-negotiate the terms
and conditions of his or her employment
— An employer will still be permitted
to make financial inducements to workers to persuade them to give
up trade union representation: the provisions of the Bill will
only prohibit inducements when the union is recognised. They do
not apply after the union has been derecognised.
— A trade union will still be denied
the right to sue an employer who offers inducements to employees.
This is because the legislation applies only to permit an employee
to sue, despite the recognition by the Strasbourg Court in the
Wilson and Palmer case that the practice violates the right of
the union as well.
The Right to Strike: Article 6(4)
4.8 So far as article 6(4) is concerned,
in the 16th cycle of supervision it was found that "the right
to strike or take other industrial action in the United Kingdom
is subject to serious limitation". The reasons for violation
are as follows:
— The "scope for workers to defend
their interests through lawful collective action" is "excessively
circumscribed", in view of the restricted concept of trade
dispute which determines when such action may be taken.
— As defined in TULRCA 1992, s 244
a trade dispute is "limited to disputes between worker and
their employer. Accordingly secondary action is not lawful, effectively
preventing a union from taking action against the de facto employer
if this is not the immediate employer".
— The Committee referred to the decision
in UCL NHS Trust v UNISON [1999] ICR 204 to show how "the
courts have interpreted the law so as to also exclude action concerning
a future employer and future terms and conditions of employment,
in the context of the transfer of part of a business".
— The Committee took note of TUC comments
about the complexity of the statutory procedural requirements
for taking industrial action and the "appreciable difficulties
encountered by trade unions who endeavour to act within the law".
The Committee referred to the "very considerable efforts
that are required of trade unions".
— Apart from the narrow definition
of a trade dispute the Committee concern was expressed about TULRCA
s 235A which allows for consumer actions against trade unions.
In the view of the Committee "the continued existence in
force of this provision is not in conformity with the Charter".
— So far as the position of individual
workers is concerned, the Committee noted the improvements made
by the Employment Relations Act 1999. But the eight week protection
against dismissal is "an arbitrary threshold" that "does
not offer adequate protection".
— The changes introduced in 1999 apply
only to official industrial action. But "article 6(4) of
the Charter provides for the right of all workers to take collective
action, whether supported by a trade union or not. The limitation
of protection against dismissal to official action is therefore
not in conformity with the Charter".
— Concern was also expressed that "it
is not lawful for a trade union to take industrial action in support
of workers dismissed [for taking part in an unofficial dispute]".
This was said to be a "serious restriction on the right to
strike".
4.9 The Committee concluded that, in view
of the restrictive notion of lawful industrial action, the onerous
procedural requirements and the serious consequences for unions
where industrial action is found not to be lawful, and the limited
protection of workers against dismissal when taking industrial
action, the United Kingdom does not guarantee the right to take
collective action within the meaning of "Article 6(4) of
the Charter". In the Council of Europe's Governmental Committee
which subsequently examined the report of the Social Rights Committee
the British government representative is reported as having said
that the government would reflect on the criticisms of the Social
Rights Committee in the process of reviewing the Employment Relations
Act 1999. The Employment Relations Bill does not appear significantly
to address any of the findings of non compliance with article
6(4) (with the possible exception of attempts to simplify the
balloting procedures). The Institute of Employment Rights believes
that the Joint Committee should press the DTI to explain how it
carried out the government's undertaking to the Council of Europe's
Governmental Committee and to produce the minutes of the meetings
at which the Social Charter points were reflected upon but evidently
rejected.
5. THE INCORPORATION
OF INTERNATIONAL
STANDARDS INTO
DOMESTIC LAW
5.1 It is clear from the foregoing that
United Kingdom law is in breach of a number of international treaties
dealing with social and economic rights, and that the breaches
are extensive. Although the problem began seriously to emerge
in 1989, it shows no signs of abating despite the legal changes
that have been introduced since 1997. The pace of change has been
too slow to deal with violations that ought never have been allowed
to happen in the first place. The Institute of Employment Rights
believes that these violations reveal the need for the effective
incorporation of international standards into domestic law. This
has already been done with the ECHR, and in our view it also to
be done with either the ICESCR or the Council of Europe's Social
Charter of 1961 (or the Revised Social Charter of 1996 which we
believe the government should ratify). The arguments in favour
of incorporating one of these social rights treaties in the same
way as the ECHR are strong and compelling and indeed some of the
arguments which applied to the incorporation of the ECHR apply
with equal force if not greater force to the ICESCR or the Social
Charter. These are as follows:
Britain Isolated
5.2 Most of the countries of the European
Union have incorporated social rights provisions into their constitutions.
These are France, Spain, Portugal, Italy, Greece, Netherlands,
Belgium, Sweden, Finland. Ireland and Denmark. Although there
is no express reference to social rights in the German Basic Law,
the Constitutional Court in Germany has been able to develop a
social rights jurisprudence from the general principles of the
constitution and has been able to develop a right to strike from
the constitutional protection of freedom of association. Only
Austria and Luxembourg are like Britain in failing to recognise
the constitutional status of any social and economic rights.
5.3 It is important to emphasise that the
scope of social rights provisions in the national constitutions
of the foregoing countries varies enormously as does the provision
for and method of their enforcement. Nevertheless, all ten of
the accession countries make (generally full) provision for social
and economic rights in their national constitutions, and most
include express protection of the right to strike. It is also
the case that Norway has recently incorporated the ICESCR along
with the ICCPR and the ECHR. Outside of Europe, modern constitutions
now include economic and social rights, the most notable example
being the South African constitution, article 23 of which deals
with labour relations. This includes express protection of the
right to strike, as well as protection to join trade unions and
take part in their activities.
5.4 Apart from these developments at national
constitutional level, a notable feature of the EU Charter of Fundamental
Rights concluded at Nice in December 2000 is that it includes
both civil and political rights on the one hand, and social and
economic rights on the other. Not only that, but each of these
different rights has the same status as the other. The provisions
of the "solidarity" chapter of the Charter include in
article 29 provisions relating to the "right of collective
bargaining and action". This seeks to guarantee not only
"the right to negotiate and conclude collective agreements"
but also "in cases of conflicts of interest, to take collective
action to defend their interests, including strike action".
The British Record
5.5 One of the most compelling reasons for
incorporation of one of the social rights treaties into domestic
law is the British record of non compliance with our treaty obligations.
This is much worse than our record of non compliance with the
ECHR before it was incorporated. One authoritative study showed
that in the years between 1975 and 1990 the United Kingdom had
been found in breach of the Convention on 21 occasions. Yet in
the 16th cycle of supervision alone, the United Kingdom was found
to be in breach of 16 provisions of the Social Charter, which
is higher than in the previous cycle of supervision when 14 cases
of non conformity were identified by the Committee.
5.6 But not only is Britain's record of
non compliance poor and getting worse. Research conducted by the
Institute of Employment Rights suggests that it is the worst among
EU member states: K D Ewing, The EU Charter of Fundamental
Rights: Waste of Time or Wasted Opportunity? (2002: 28), though
the position may be changing in view of falling standards in other
countries. An examination of compliance records with the "hard
core" provisions of the Social Charter showed that during
the 14th cycle of supervision the United Kingdom was in breach
of more provisions than any other EU member state. The hard core
provisions are a group of seven articles (articles 1, 5, 6, 12,
13, 16 and 19), of which countries ratifying the treaty must accept
to be bound by at least five.
5.7 The United Kingdom has accepted 25 of
the 28 paragraphs in the seven hard core articles of the treaty,
including articles 5 and 6 in their entirety. The research conducted
at the end of the 14th cycle of supervision revealed that all
EU Member States were in breach of at least two of the hard core
provisions that they had accepted. But the research also revealed
that with 10 violations, the United Kingdom outstripped most of
the other EC members of the Council of Europe, though Denmark
and Ireland ran us close with eight violations each. The British
record may, however, have been even worse in comparative terms
in view of the fact that unlike the United Kingdom many countries
have accepted all of the hard core provisions, and that in the
case of several paragraphs the United Kingdom is in breach on
multiple grounds.
The Problems of Enforcement
5.8 At the present time British citizens
have only limited opportunities to raise concerns about the breach
of human rights treaties dealing with social rights. Complaints
can be made to the ILO Freedom of Association Committee about
the alleged violation of Conventions 87 and 98. But it is not
possible for British NGOs to complain about a breach of the Social
Charter, despite a mechanism now in place for collective complaints
to be made to the Social Rights Committee. With the recent ratification
by Belgium, the United Kingdom is in the minority of seven of
the 15 current EU member states not to have ratified the Collective
Complaints Protocol of 1995.
5.9 So while it is possible to seek to enforce
the European Convention on Human Rights in the domestic courts
and to take a complaint alleging a breach of the European Convention
on Human Rights to the European Court of Human Rights, the position
with the Social Charter is very different. It is not possible
to enforce the Social Charter in domestic law and the government
will not permit complaints alleging its breach to be made to the
Social Rights Committee. The latter could and should be addressed
by either ratifying the Collective Complaints Protocol of 1995
or ratifying the Revised Social Charter of 1996 into which the
collective complaints procedure has been incorporated.
5.10 But even if it were possible for collective
complaints to be made from the United Kingdom, this would not
address the concerns that were made by judges and others before
the Human Rights Act in relation to the ECHR. Why should it be
necessary to refer complaints for determination by the Social
Rights Committee when these complaints—which raise legal
questions—could be determined by British judges sitting
in British courts? The process of allowing these matters to be
dealt with here would make enforcement more accessible, and the
resolution of complaints more speedy than is possible under the
collective complaints procedure as currently operated. It would
also help to increase the visibility of social rights as human
rights.
The Problem of Non Compliance
5.11 The problem of enforcement is worse
because the government routinely ignores the findings of the international
supervisory bodies. The United Kingdom has a good record when
it comes to complying with the decisions of the European Court
of Human Rights, though the proposed implementation of the Wilson
and Palmer decision leaves much to be desired. But the United
Kingdom has an appalling record when it comes to responding to
the findings of the UN Committee on Economic, Social and Cultural
Rights, the ILO supervisory bodies, and the Council of Europe's
Social Rights Committee. The government has failed to address
violations of the right to freedom of association and the right
to strike, despite repeated observations by the ILO Committee
of Experts and the Social Rights Committee.
5.12 Yet the problem is not just one of
failing to comply with decisions of the supervisory bodies. A
related concern is the failure to ensure that fresh violations
do not continue to occur. This points to a lack of respect for
international human rights obligations on the part of the government
and a failure of Parliament effectively to scrutinise legislation
for potential human rights breaches. A good example of this is
provided by the Employment Relations Act 1999 which allows employers
to establish staff associations as a way of defeating an application
for recognition by an independent trade union under the statutory
recognition procedure introduced by the Employment Relations Act
1999. It is hard to see how this could possibly be compatible
with articles 2,3 and 4 of ILO Convention 98 and difficult to
understand how this could have been missed by either the DTI or
Parliament.
5.13 Another example of inadequate supervision
of bills for compatibility with international human rights obligations
is the exclusion from the same statutory recognition procedure
of small businesses (that is to say those employing fewer than
21 workers). This has the effect of denying almost one in four
workers of the right to be represented by a trade union. It is
difficult to see how an exclusion on this scale can be said to
be consistent with ILO Convention 98, article 4. The obligation
to promote collective bargaining is unequivocal: there is no exception
for workers employed by small businesses. Similar concerns about
the practice of continuing violations exist in relation to the
protection against dismissal for employees taking part in lawful
industrial action. There is nothing in the jurisprudence of any
of the supervisory bodies to suggest that an arbitrary provision
of this kind would be considered compatible with treaty obligations.
The "Ethical Aimlessness" of the Common
Law
5.14 The final concern relates to what was
once described as the "ethical aimlessness" of the common
law: A Lester and G Bindman, Race and Law (1970), p 70. Beyond
the right to liberty and the right to private property, the common
law fails to recognise or accommodate what would be recognised
in international law as human rights. Employers are free to discriminate
on the grounds of race, sex, sexuality, disability or trade union
membership. Trade unions have no rights recognised by common law:
there is no right of the individual to join a trade union, no
right to be represented by a trade union, and no right to strike.
5.15 Indeed so far as the common law is
concerned trade unions were and remain in restraint of trade from
which they need statutory immunity (TULRCA 1992, s 11). When trade
unions organise industrial action they are committing a tort by
unlawfully interfering with the trade, business or employment
of the employer or third party who is the intended victim of the
union's action. This is a situation which has attracted the concerns
not only of the UN Committee on Economic, Social and Cultural
Rights but also the ILO Committee of Experts which wrote in 1989
that:
The Committee notes that the common law renders
virtually all forms of strikes or other industrial action unlawful
as a matter of civil law. This means that workers and unions who
engage in such action are liable to be sued for damages by employers
(or other parties) who suffer loss as a consequence, and (more
importantly in practical terms) may be restrained from committing
unlawful acts by means of injunctions (issued on both an interlocutory
and a permanent basis). It appears to the Committee that unrestricted
access to such remedies would deny workers the right to take strikes
or other industrial action in order to protect and to promote
their economic and social interests. It is most important, therefore,
that workers and unions should have some measure of protection
against civil liability.
5.16 This is a very fragile basis on which
to protect a human right in a modern human rights culture: a series
of statutory immunities from presumed common law liability. It
is all the more fragile for the fact that the immunities are granted
only for liabilities which are known to exist at the time the
legislation granting the immunities is introduced. But the immunities
are built on the shifting sands of the common law. This means
that a fundamental human right (and the right to strike has been
so recognised by the Court of Appeal as well as by international
law) can be undermined by the creation of new heads of liability
which were not anticipated at the time the legislation was passed.
6. THE HUMAN
RIGHTS ACT
AS A
TEMPLATE
6.1 There is thus a strong and compelling
case for raising the status in British law of human rights treaties
dealing with social and economic rights. The question which then
arises is to consider how this can best be done. It is clear from
the judgments of the international supervisory bodies that this
is not a matter that can be left to the government and Parliament
alone to secure. In the new human rights culture that we now inhabit
there is a strong case for saying that the courts must also have
a part to play, and that it is unacceptable that we should enhance
the status of civil and political rights but not also social and
economic rights. As the UN Committee on Economic, Social and Cultural
Rights (para 2.5 above) makes clear, human rights are "indivisible".
6.2 This indivisibility of human rights
has a number of consequences. But it means that we cannot have
effective civil and political rights without adequate social and
economic rights. The reasons are obvious. Indivisibility also
means equal status, which for domestic purposes means that social
and economic rights should have the same status as civil and political
rights. Yet at the present time Parliament has incorporated through
the Human Rights Act only civil and political rights and have
ignored social and economic rights, despite the problems of violation
that we have outlined above. By using the Human Rights Act as
a template, this is a matter that can be addressed in one of two
ways:
— amend the Human Rights Act by expanding
the scope of its coverage to include other international human
rights treaties; or
— introduce a new Human Rights Act
which by dealing exclusively with social and economic rights would
complement the 1998 Act.
Which rights?
6.3 The first matter for consideration is
to determine which rights would be appropriate for inclusion in
a statute modelled on the Human Rights Act 1998, or an amendment
to the Human Rights Act. Here there are two issues that arise,
one being to determine which treaty would be the most appropriate
for incorporation in the same way as the ECHR. The UN Committee
on Economic, Social and Cultural Rights recommends that the ICESCR
should be incorporated into domestic law. However, the same result
could be achieved by the incorporation of the European Social
Charter of 1961 (or the Revised Social Charter of 1996) which
is a longer established treaty with a longer record of supervision
to give guidance to its provisions.
6.4 If the Social Charter (or the Revised
Social Charter) were to form the basis of an incorporated text,
it does not follow that all of it would have to be incorporated.
We have in mind here section 1 of the Human Rights Act which does
not incorporate all of the European Convention on Human Rights,
but only selected articles. It would be possible to follow this
example and to provide that the social rights to which an amendment
to the Human Rights Act applied were those paragraphs of the Social
Charter (or the Revised Social Charter) which the United Kingdom
had accepted. It would of course be desirable for the United Kingdom
to increase its level of acceptance, and to do so also by ratifying
the Additional Protocol.
6.5 The other issue which arises here relates
to the jurisprudence of the supervisory bodies, in this case the
Social Rights Committee which has given important guidance on
the meaning of the treaty. Under the Human Rights Act the British
courts are bound to take into account the decisions of the different
supervisory bodies (the Council, the Commission and the Court)
when considering Convention rights. But the courts are not bound
by the decisions of the Strasbourg bodies and are free to take
a more or less expansive view on any particular matter. The same
obligations on the courts ought to apply in relation to the Social
Charter, which—it may be noted in passing—is now used
as an aid by the European Court of Human Rights.
Social Rights and Legislation
6.6 Turning to the effect of incorporating
a social rights treaty in this way, the first consequence would
be to impose a duty on the part of the courts to interpret domestic
legislation consistently with social rights wherever possible
to do so. This would be an important step forward, particularly
in view of the fact that neither the ICESR nor the Social Charter
of the Council of Europe has to our knowledge ever been considered
by a British court. Although the Social Charter was cited in argument
by counsel in Associated Newspapers Ltd v Wilson [1995]
2 All ER 100, it was not referred to in the judgment of the court.
6.7 A full consideration of article 5 of
the Social Charter in Associated Newspapers Ltd v Wilson could
have led to a construction of domestic law which would have been
consistent with human rights obligations. By restoring the decision
of the industrial tribunal and upholding the decision of the Court
of Appeal, the House of Lords could have spared the respondent
a seven year delay in vindicating his right to freedom of association.
As is well known, the European Court of Human Rights held in that
case that British law violated article 11 of the ECHR by permitting
pay discrimination against trade unionists: Wilson and Palmer
v United Kingdom, above. In reaching that decision
the Strasbourg court referred to the Social Rights Committee for
guidance.
6.8 There may, of course, be cases where
it is not possible to construe domestic law consistently with
social rights obligations. In these cases the Human Rights Act
provides that the court may make a declaration of incompatibility,
though the legislation in question remains effective until amended
by Parliament. It is open to the government to decline to bring
forward amending legislation, though there is a fast-track procedure
which may be used in some cases should the government decide to
bring forward an amendment. This would be an appropriate procedure
to use for the purposes of social rights drawn from a social rights
treaty. That is to say, it ought to be possible for a court in
an appropriate case to be able to declare legislation incompatible
with selected fundamental social rights.
Social Rights and Public Authorities
6.9 Apart from the impact of social rights
on legislation, the other issue relates to the conduct of public
authorities. Again following the model of the Human Rights Act,
there would be a duty on the part of public authorities to comply
with social rights obligations unless required by legislation
to do otherwise. This means in particular that the discretionary
powers of public authorities of a wide and varied kind would have
to be exercised in a manner which was consistent with social rights
obligations. An example might be a decision to dismiss someone
for taking part in a strike. The Institute of Employment Rights
is aware that the Joint Committee has recently concluded an inquiry
into the meaning of "public authority" for the purposes
of the Human Rights Act.
6.10 The other feature of this aspect of
the Human Rights Act is the definition of a public authority which
expressly includes a court or tribunal. Depending on how it is
construed, this would be particularly important in the social
rights arena where the challenge to international human rights
comes not only from the government but also from employers. An
example is where a strike is called and the employer seeks an
injunction to restrain a trade union from taking industrial action
on the ground that it violates his or her common law rights. Adopting
the template of the Human Rights Act it is possible that it would
not be open to a court to grant relief in such a case.
6.11 It ought not to be possible for employers
to secure injunctions because the granting of the injunction in
breach of social rights guarantees would mean that a public authority
(the High Court) was violating the obligation that it should not
breach social rights (which it would be doing by issuing an injunction
if the injunction banned action protected by the relevant treaty).
This would apply to both interim and permanent injunctions, though
for this purpose the Human Rights Act again provides a useful
template. In prohibiting improper interim relief, the provisions
of s 12 of the Human Rights Act are stronger than the corresponding
provisions of TULRCA 1992, s 221.
Social Rights and the Courts
6.12 One concern about using the Human Rights
Act as a template in this way is the role that the courts would
have in administering social and economic rights. There are timid
voices who would claim that these rights are not justiciable,
or that they would draw the courts into making decisions about
the allocation of economic resources which are decisions for the
executive and the legislature rather than the judiciary. That
myth has, however, been scotched by the Constitutional Court of
South Africa which has the task of reconciling representative
government with entrenched human rights.
6.13 In a statement issued after the first
judicial forum in South Africa for more than 70 years, South Africa's
judges recently made clear that they had an important role in
developing an effective judicial voice under a constitution seeking
to "establish an open democracy committed to social justice
and the recognition of human rights": [2004] SALJ 648. But
that role is necessarily a limited one, though it is nevertheless
significant, and the following passage repays careful reading,
forming part of a groundbreaking decision of the Constitutional
Court:
Courts are ill-suited to adjudicate upon issues
where Court orders could have multiple social and economic consequences
for the community. The Constitution contemplates rather a restrained
and focused role for the Courts, namely, to require the State
to take measures to meet its constitutional obligations and to
subject the reasonableness of these measures to evaluation. Such
determinations of reasonableness may in fact have budgetary implications,
but are not in themselves directed at rearranging budgets. In
this way the judicial, legislative and executive functions achieve
appropriate constitutional balance.
(Minister of Health v Treatment Action Campaign
(No 2) 2002(5) SA 721)
6.14 But even if there is cause to be squeamish
about the judicial role in the area of fundamental social rights,
it is not to be overlooked that there is now a growing European
jurisprudence on the application of social rights in the national
constitutional courts of our European partners. There is also
a growing jurisprudence of the Social Rights Committee under the
Collective Complaints Protocol. At the time of writing there have
been 25 applications to the Committee under this procedure. Nor
is it to be overlooked that parts of the Social Charter have been
enforced in national courts, most famously in the Dutch engine
drivers' case to prevent an interdict being imposed to prevent
industrial action by the drivers: NV Dutch Railways v Transport
Unions FNV, FSV and CNV [1988] 6 Int Lab Reps 3.
Pre-Legislative Scrutiny
6.15 The final matter for consideration
here relates to the question of pre-legislative and legislative
scrutiny of Bills to ensure that they are consistent with the
requirements of international social rights obligations. At the
present time there are a number of procedures in place to ensure
that legislation is not introduced unwittingly in breach of Convention
rights. The Ministerial Code directs ministers that in bringing
proposals to Cabinet, they must first assess the "consequences
for European Union, European Court of Human Rights and other international
obligations".
6.16 This is a provision that could be strengthened
with explicit reference to a number of other treaties, including
the ICESCR, ILO Conventions 87 and 98, and the Social Charter
of 1961 (or the Revised Social Charter of 1996). There are also
provisions in the Human Rights Act which are designed to promote
better executive and parliamentary scrutiny of legislation. Thus
section 19 provides that all Bills introduced by a minister must
contain a statement by the minister stating whether he or she
considers the Bill to be or not to be compatible with Convention
rights. This should be extended to include the Social Charter
(or the Revised Social Charter).
6.17 There is also the role of the Joint
Committee on Human Rights, the terms of reference of which include
a duty to examine ministerial statements and generally to ensure
that legislation complies with human rights obligations. There
may be a role for a more rigorous examination of bills by the
committee to ensure compliance with social rights obligations.
As already indicated some of the defects of the Employment Relations
Bill currently before Parliament appear to have evaded close forensic
scrutiny by the Committee. There are questions here under a number
of the human rights treaties considered in this submission.
7. INTERNATIONAL
STANDARDS AND
THE RIGHT
TO STRIKE
7.1 In the last few years the United Kingdom
has thus been on the receiving end of damning conclusions from
the supervisory bodies administering not one but three sets of
international treaties. The criticism of these bodies has covered
a large area, but all three have drawn attention to important
violations of international law so far as the right to strike
is concerned. The implications are far reaching. If the United
Kingdom is to meet minimum international standards, some radical
surgery will be required to labour laws which remain the most
restrictive in Europe, notwithstanding the Employment Relations
Act 1999 and the enactment of the Employment Relations Bill currently
before Parliament.
7.2 In this section we indicate the changes
that we believe would be necessary in order to bring British law
into line with international human rights standards. In drawing
attention to these areas where restrictions need to be removed,
we are not advocating an escalation of industrial action. It is
for individuals and their organisations to decide when they will
use their human rights, and not for government to make that decision
for them. The government is no more justified in restraining the
right to strike by legislation than it is restraining the right
to freedom of expression. It should be emphasised that this is
not an academic matter, but that the current violations of international
standards have a real impact on the rights of trade unions and
their members. This arises in three ways:
— The first is the chilling effect
of the law, in the sense that trade unions do not exercise human
rights for fear of the legal consequences.
— The second is that trade unions are
sued by employers and in some cases restrained by the courts for
exercising what are internationally recognised human rights.
— The third is that workers are dismissed
and not reinstated for exercising what is a recognised by international
law as a human right.
Individual trade unions will be able to provide
the Joint Committee with specific and detailed evidence on each
of these points.
A Right to Strike
7.3 The first step that needs to be taken
is that there should be a legally protected right to strike. This
could be by direct incorporation of one of the international treaties,
or by legislation based on one of these treaties. The right would—as
international human rights law requires—vest in both the
individual worker and the trade union—with a number of important
legal consequences, as follows:
— Participation in a strike would not
be a breach of contract by the workers concerned (though there
is no suggestion that people should be paid while on strike).
— Participation in a strike would not
be grounds for dismissal, either at common law or under the statutory
unfair dismissal regime.
— There would be no civil liability
for trade union officials or workers who organise, call or take
part in strike action.
— There would be no liability of a
trade union in damages where their members or officials have organised,
called or taken strike action.
(UN Committee on Economic, Social and Cultural
Rights, 1997, 2002)
International Standards and the Scope of the Right
to Strike
7.4 In terms of the form of action that
is permitted, the second step is that the legislation needs to
be amended so that there is legal protection for action which
has been identified by both the ILO Committee of Experts and the
Social Rights Committee of the Council of Europe as falling within
the scope of human rights obligations. Specifically, this means
that:
— The definition of a trade dispute
in TULRCA 1992, s 244 needs to be amended on the ground that the
existing definition of trade dispute provides too narrow an ambit
for lawful industrial action.
(ILO Committee of Experts, 1989; Council
of Europe Social Rights Committee, 16th cycle)
— Legislation should make clear that
workers may take industrial action to promote and protect their
social and economic interests, and that workers may lawfully take
action against the de facto employer as well as the de jure employer.
(ILO Committee of Experts, 1989, 2001;
Council of Europe Social Rights Committee, 16th cycle)
— The legislation should make clear
that trade unions are free to have the possibility of recourse
to protest strikes, in particular where aimed at criticising a
government's economic and social policies.
(ILO Committee of Experts, 1989)
— TULRCA 1992, s 224 should be repealed
so that workers are free to take secondary industrial action in
support of other workers involved in a dispute provided the secondary
action relates:
— directly to the social and economic
interests of the workers involved in either or both of the original
dispute and the secondary action; and
— where the original dispute and the
secondary action are not unlawful in themselves.
(ILO Committee of Experts, 1989; also
Council of Europe Social Rights Committee, 16th cycle)
— In repealing section 224 of TULRCA
1992, it should be made clear that trade unions and workers are
able lawfully to take sympathy industrial action provided the
initial strike they are supporting is itself lawful.
(ILO Committee of Experts, 1989, 2001,
2003)
— TULRCA 1992, s 244 should be amended
so that workers are free to take industrial action to ensure that
future employers (such as privatised utilities or service providers)
observe collective agreement to which the union is a party.
(Council of Europe Social Rights Committee,
16th cycle)
— TULRCA 1992, s 223 should be repealed
so that workers are free to take industrial action to support
other workers who have been dismissed for taking unofficial industrial
action.
(Council of Europe Social Rights Committee,
16th cycle)
— The definition of a trade dispute
in TULRCA 1992, s 244 needs to be amended to ensure that workers
are free to take industrial action in support of workers overseas
who are involved in a dispute with their own employer.
(ILO Committee of Experts, 1989)
— TULRCA 1992, s 235A (permitting legal
action to be brought by consumers affected by the disruption of
services as a result of unprotected industrial action) should
be repealed.
(Council of Europe Social Rights Committee,
16th cycle)
International Standards, the Right to Strike and
Trade Union Autonomy
— TULRCA 1992, s 15 should be repealed
so that trade unions may lawfully indemnify members and officers
for losses incurred when acting for the union.
(Council of Europe Social Rights Committee,
16th cycle)
— The requirement in TULRCA 1992, s
226A that trade unions must give notice to employers that they
propose to hold a strike ballot should be repealed
(Council of Europe Social Rights Committee,
16th cycle)
— The legislation requiring trade unions
to ballot their members before industrial action should be greatly
simplified.
(Council of Europe Social Rights Committee,
16th cycle)
— TULRCA 1992, s 65 should be repealed
so that trade unions are free to discipline members who fail to
take part in a strike in accordance with the rules of the union.
(ILO Committee of Experts, 1989, 1999,
2001, 2003); Council of Europe Social Rights Committee, 16th cycle)
International Standards, the Right to Strike and
Protection of the Individual
— The protection against dismissal
should not be confined to eight weeks, but should apply to the
duration of the dispute.
(Council of Europe Social Rights Committee,
16th cycle)
— A dismissal for taking part in a
strike should be void, and anyone dismissed for this reason should
be entitled to return to work at the end of the strike.
(UN Committee on Economic, Social and
Cultural Rights)
— The protection against dismissal
should be extended to other forms of disciplinary action, including
the transfer and demotion of striking workers.
(ILO Committee of Experts, 1999)
— There should be protection against
dismissal for workers who take part in unofficial industrial action:
the protection should not be confined to cases of official action.
(Council of Europe Social Rights Committee,
16th cycle)
8. CONCLUSION
AND RECOMMENDATIONS
8.1 The International Covenant on Economic,
Social and Cultural Rights is only one of several treaties dealing
with social and economic rights that the United Kingdom has fallen
foul of in recent years. The others include ILO Conventions 87
and 98, as well as the Council of Europe's Social Charter. The
observations of the different supervisory bodies are a timely
reminder about the failure of human rights protection in the United
Kingdom. This is a failure operating at a number of levels.
8.2 The first failure highlighted by the
these reports relates generally to the decision in the Human Rights
Act to sever civil and political rights from social and economic
rights. As we have pointed out, this decision is all the more
curious for the fact that modern constitutions accept the indivisibility
of human rights. Indeed when Norway moved recently to incorporate
the ECHR and ICCPR it did so also by incorporating the ICESCR.
As we have also pointed out, there can be no suggestion that this
severance of civil and political rights from social and economic
rights can be justified because the latter are well enough protected
by the ordinary law. That is self-evidently not the case.
8.3 The second failure highlighted by these
reports relates to the gulf between international human rights
standards and British domestic law. We have concentrated in this
submission on the right to strike, as one of the issues about
which the Joint Committee specifically invited comments. As we
have pointed out there is a great deal that needs to be done in
terms of statutory amendment if British law is to be brought fully
into line with what are minimum standards set by the international
human rights community. These are standards which it is to be
recalled we voluntarily accepted and to which we have recently
re-affirmed our commitment on more than one occasion. Having made
these choices, we should fulfil our obligations.
8.4 There are thus several steps that need
to be taken to deal with what is frankly a shameful catalogue
of human rights violations relating to trade union rights, reflecting
a shameful disregard for the persistent and consistent observations
of various international supervisory bodies:
— There is a need formally to incorporate
either the ICESCR or the Council of Europe's Social Charter into
domestic law along the same lines as the ECHR.
— There is a need to sweep the statute
book clean of the existing restraints on fundamental social rights
generally and the right to strike in particular.
— There is need to join with the majority
of EU members of the Council of Europe and ratify the Collective
Complaints Protocol.
— There is a need for much better scrutiny
of bills by government and Parliament to ensure compliance with
fundamental social rights as well as the ECHR.
— There is a need for much greater
legal and judicial training on human rights, which should include
training about fundamental social rights.
31 March 2004
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