Appendix 3: Employment Relations Bill
Letter from Gerry Sutcliffe MP, Minister for Employment
Relations, Competition and Consumers, Department of Trade and
Industry
Employment Relations Bill and the ECHR Judgment
in the "Wilson & Palmer" Case
In the case of Wilson, Palmer, Doolan and others
v The United Kingdom (Application Nos. 30668/96, 30671/96 and
30678/96), the European Court of Human Rights found that the UK
was in breach of Article 11 of the Convention. We have kept your
Committee regularly informed about our response to this important
judgment. On October 1, the DTI wrote to the Committee's Clerk,
Paul Evans, sending him a copy of the judgment and informing him
that the Government proposed to consider the Government's response
to the judgment as part of the Review of the Employment Relations
Act 1999, and, on 7 March this year, my officials sent him a copy
of the Consultation Document which presented the initial findings
of the Review and the Government's proposals to ensure trade union
law complied with the ECHR judgment.
As announced in this week's Queen's Speech, the Government
will bring forward an Employment Relations Bill as part of this
year's legislative programme. We intend to introduce the Bill
shortly. We will use the Bill to implement legislation which will
ensure that UK law fully complies with Article 11. I am enclosing
the draft clauses of the Bill which relate to the judgment, together
with the ECH R Memorandum which accompanied the Bill when it was
considered by Cabinet Committee.
These clauses were drafted following extensive consultation.
In addition to the formal responses to the Consultation Document,
we have also undertaken detailed informal consultations with the
TUC and CBI, showing them the clauses in draft.
Briefly, the Government believes that the following
changes to trade union law are required:
(a) Clear rights should be given to union members
to use the services of their union. This is mainly achieved by
provisions in Clauses 25 and 26 of the Bill: these amend sections
146 and 152 of the Trade Union and Labour Relations (Consolidation)
Act 1992 ("the 1992 Act"), the sections which contain
the main preexisting protections against antiunion
discrimination;
(b) It should be made unlawful for employers
to offer trade union members inducements to forego key union rights.
This is mainly achieved by adding new sections 145A and 145B to
the 1992 Act, which are contained in Clause 23 of the Bill;
(c) The union rights not to suffer a detriment
and not to be offered inducements should apply to workers, and
not just to employees. The relevant provisions are found in Clauses
23 and 24;
(d) Subsections 148(3) to (5) of the 1992 Act—the
socalled "Ullswater Amendment"—should be
repealed. This is achieved by subsection (5) of Clause 25;
(e) Section 17 of the Employment Relations Act 1999,
providing the Secretary of State with an order making power to
confer rights in this area, is superseded by the provisions in
the Bill and should therefore be repealed. This is achieved by
subsection (8) of Clause 25.
As you know, we have introduced other important changes
to trade union and employment law since 1997. For example, in
the 1999 Act, we established a statutory recognition procedure,
which itself contains protections for individuals within the affected
workforce, and that Act also made it unlawful to discriminate
against trade unionists by omission. Our trade union law has therefore
changed substantially since the time when the events which gave
raise to these cases occurred. I am sure that the provisions of
the Bill will build on these achievements and help secure trade
union rights in this country.
I hope you find it helpful to receive an early sight
of these important clauses in the Bill. I know these clauses,
which are themselves quite complicated, concern a complex area
of the law and have been drafted following a long process of deliberation
and consultation. My officials would be happy to assist you or
your advisers in explaining the background and intended effects
of the clauses.
For completeness, I should also point out that the
Government intends to introduce amendments to the Bill during
its Parliamentary passage which will change the law (section 174
of the 1992 Act) regulating the ability of unions to exclude or
expel individuals from membership on grounds of their political
party membership. These amendments will have human rights implications,
and I will ensure that copies of them are sent to your Committee
as soon as they are tabled.
I am copying this letter to Martin O'Neill, Chairman
of the Commons Trade and Industry Select Committee.
26 November 2003
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