28. Memorandum from the Trade Union
and Labour Party Liaison Organisation
TRADE UNION RIGHTS WITHIN A BRITISH BILL
1. The Trade Union and Labour Party Liaison
Organisation (TULO) welcomes this opportunity to contribute to
the debate about a British Bill of Rights. TULO is the organisation
that represents the 16 trade unions currently affiliated to the
Labour Party, with a combined affiliated membership of 2.4 million.
In this submission TULO wishes to add its voice to the debate
about a British Bill of Rights in the belief that if there is
to be such a measure, it must make full provision for trade union
2. Strong trade unionism is essential in
an era of globalisation and the continuing growth of powerful
trans-national corporations. Yet trade union rights are constantly
undermined and are the subject of steady erosion. The British
government is now regularly found to be in breach of ILO Conventions
on fundamental trade union rights by the ILO Committee of Experts;
as well as in breach of the European Social Charter of 1961 by
the European Committee on Social Rights. Most recently, the United
Kingdom was found to be in breach of article 11 of the European
Convention on Human Rights in the landmark ASLEF case.
3. As a result, TULO believes that constitutional
protection of trade union rights in a Bill of Rightswith
ILO standards as a minimumis necessary if working people
are to be adequately protected from the misuse of governmental
and corporate power.
4. TULO welcomes the fact that a number
of measures have been taken by the Labour government since 1997
to extend the rights of trade unions. The statutory recognition
procedure was a particularly welcome initiative, though as we
shall explain below there are concerns that the procedure is too
narrowly drawn. TULO remains concerned, however, that many of
the restrictions on trade union rights inherited from the Thatcher/Major
era remain in place, seriously circumscribing trade union freedom.
Some of these restraints and the impact which they have on trade
union freedom were outlined in evidence submitted to the JCHR
in 2004 at the time of its inquiry into the International Covenant
on Economic, Social and Cultural Rights. Submissions were made
to the Committee by CWU, GMB, TGWU and UNISON, as well as the
RMT which is no longer a member of TULO. Little has been done
since then to rectify the shortcomings of British law, and indeed
the government has emphasised its isolationist position in Europe
by negotiating an opt out from the EU Charter of Fundamental Rights.
This is a move greatly regretted by TULO.
5. Trade union rights are protected by a
number of international human rights treaties to which the United
Kingdom is a party. They include ILO Conventions 87 and 98 and
the Council of Europe's Social Charter of 1961. So far as the
ILO Conventions are concerned, these deal specifically with freedom
of association, and the United Kingdom has been found in breach
of these provisions consistently since 1989 by the ILO Committee
In its most recent report on Convention
87, the Committee repeated concerns about the statutory restrictions
on trade union autonomy, taking strong exception to the inability
of trade unions to exclude or expel individuals on the ground
of their membership of political parties hostile to the interests
of the union. These provisionswhich have already been considered
by the JCHRwere also held by the European Court of Human
Rights to breach article 11 of the European Convention on Human
Rights. Apart from these concerns about trade union autonomy,
the Committee of Experts also renewed its concerns about the tight
restrictions on the right of trade unions to defend the economic
and social interests of their members by taking collective action
in appropriate cases. In particular, it renewed its findings that
the total ban on solidarity action in British law violated the
requirements of Convention 87.
In its most recent report on Convention
98, the Committee broke new ground by raising concerns for the
first time about the new recognition procedure introduced by the
Employment Relations Act 1999. Four questions in particular were
raised, three of these relating to the exclusion of small businesses
from the procedure; the fact that an application for recognition
under the procedure can be blocked by an employer voluntarily
"recognising" a nonindependent trade union; and
the failure to provide adequate protection for workers from antiunion
conduct by employers. The other concern raised by the Committee
was that recognition can only be granted where the union can show
majority support, whereas under ILO jurisprudence a trade union
should be entitled to bargain on behalf of its members, even where
the union does not have support from a majority of the workforce.
6. So far as the Social Charter is concerned,
compliance with obligations under this treaty is reviewed by a
rolling programme of scrutiny undertaken by the Social Rights
Committee of the Council of Europe. In its last report published
in 2005, the Committee examined British compliance with 7 articles
of the treaty, including the trade union rights provisions of
article 5 (on the right to organise) and 6 (on the right to bargain
and the right to strike). These 7 articles contain 23 separate
obligations, with which the United Kingdom was found to be in
conformity with only 13. The cases of non conformity were said
to include articles 5 and 6, in each case for several reasons.
In the case of article 5 (on the
right to organize), three grounds of nonconformity were
given. These related to (i) section 15 of the Trade Union and
Labour Relations (Consolidation) Act 1992 which makes it unlawful
for a trade union to indemnify an individual union member for
a penalty imposed for an offence or contempt of court (ii) section
65 of the 1992 Act which severely restricts the grounds on which
a trade union might lawfully discipline members represent unjustified
incursions into the autonomy of trade unions; and (iii) section
174 of the 1992 Act (as amended by the Employment Relations Act
2004) which entitles a trade union to exclude members for reasons
linked exclusively or mainly to the fact that they have taken
part in the activities of a political party and not because they
were affiliated to the party. These measures were said to constitute
"an excessive interference by the law with trade union membership
In the case of article 6(4) (on the
right to strike), the nonconformity related to (i) the
scope for workers to defend their interests through lawful collective
action, which was said to be "excessively circumscribed";
(ii) the requirement to give notice to an employer of a ballot
on industrial action, which was said to be "excessive"
in light of all the other procedural hurdles on trade unions,
such as the duty to issue a fresh notice before commencing strike
action; and (iii) the protection of workers against dismissal
when taking industrial action was said to "insufficient",
apparently notwithstanding the changes to unfair dismissal introduced
in 2004. In the case of the first of these grounds of non conformity,
the right to strike was said to be excessively circumscribed for
a number of reasons, in the case of the second the conclusion
was reached notwithstanding the simplification of the procedures
introduced in 2004, and in the case of the third concern was expressed
that the protection against dismissal applied only where the strike
was lawful, and that specific forms of legitimate industrial action
were not lawful in British law.
7. These continuing violations of fundamental
trade union rights form part of the background to TULO's concern
that any future British Bill of Rights should include core trade
union rights. That is to say the right to organise, the right
to bargain and the right to strike. There is no reason why trade
unions in Britain should have rights which are inferior to those
of their counterparts in Europe; there is no reason why trade
unions in Britain should have rights that fall short of minimum
international standards; and there is no reason why trade unions
in Britain should not have access to a domestic legal forum to
uphold these rights. It is now standard practice in modern constitutions
for trade unions to be expressly included, and it is increasingly
important that they should be included, in light of the growing
power of trans-national corporations.
8. Trade union rights are included in national
constitutions the world over, from South America to South Africa
to Japan. In terms of the European Union, the express inclusion
of trade union rights is to be found in various forms in the national
constitutions in all but a few of the original 15 member states.
In Ireland, the scope of trade union rights hardly
extends beyond the protection currently provided in article 11
of the ECHR, that is to say a right to form and join trade unions.
Luxembourg guarantees a right to trade union freedom.
In Greece, Italy, Portugal, Spain and Sweden,
in contrast, there is express recognition of the right to freedom
of association generally, as well the right to strike in particular,
albeit expressed differently in each case.
In Finland and Germany there is express recognition
of the right to freedom of association generally, a right which
has then been implied by the courts to include the right to strike
In France and Portugal there is express recognition
not only of the right to freedom of association but also the right
to collective bargaining and the right to strike.
In the Netherlands, the courts have directly
applied the right to strike guarantees in the European Social
Charter as a result of a constitutional guarantee that international
treaties are to be enforced in domestic law.
9. It is thus clear that of the first 15
EU member states trade union rights are excluded from only a small
minority of national constitutions. These include Belgium and
Denmark, constitutions which survived the Second World War. In
constitutions crafted since the end of the war, there has been
a tendency to include social rights generally and trade union
rights specifically. Apart from questions of national characteristics,
prevailing political philosophy and the need for constitutional
consensus, it would be reasonable to speculate that these constitutional
arrangements reflect a changing awareness about the functions
of Bills of Rights and that modern Bills of Rights must embrace
a wider range of values than those to be found reflected in the
US Constitution drafted at the end of the 18th century. Modern
thinking about Bills of Rights is most visible in the constitutional
arrangements of the 12 new EU accession states where we find a
commitment to the protection of trade union rights in the constitutions
of Bulgaria, Cyprus, Estonia, Hungary, Latvia, Lithuania, Poland,
Romania, Slovakia and Slovenia. The only exceptions are Malta
and the Czech Republic, though the former is a much older constitution
and belongs to an earlier generation of documents, and in the
case of the latter it is expressly provided that international
human rights treaties which have been duly ratified are "immediately
binding and are superior to law".
10. In the light of the foregoing, it would
thus be eccentric to contemplate a modern Bill of Rights which
did not fully include trade union rights. Not only would we be
going against the grain of current practice, but we would do so
in a way that placed among a very small minority of states within
the EU, with many of the countries which include trade union rights
being much less fully developed economically than the United Kingdom.
It would also place us in a minority position in the G8 countries,
with Canada (following a recent Supreme Court decision introducing
constitutional protection for the right to collective bargaining)
joining France, Germany, Italy, Japan and Russia as countries
with formal constitutional protection of trade union rights, leaving
the United Kingdom and the United States isolated. As already
indicated in paragraphs 4 to 7 above, in the case of the United
Kingdom the exclusion of trade union rights from a future Bill
of Rights cannot be justified on the ground that these rights
are adequately protected in British law without the need for constitutional
protection. Constitutional protection of trade union rights would
ensure that these rights stopped being the political playthings
of political parties.
11. Questions arise about the content of
any provision in a Bill of Rights dealing with trade union rights.
TULO believes that this should cover the three core trade union
rights recognised by a collection of international human rights
I.i) The right of trade unions to draw up
their own constitutions and rules and to elect their representatives
in full freedom.
I.ii) The right of trade unions to organise
their administration and activities and to formulate their programmes,
including political activity.
I.iii) The right of trade unions to organise
on a trans-national basis without impediment in national law.
II.i) The right of trade unions to engage
in collective bargaining on behalf of their members and others.
II.ii) The right of trade unions to engage
in collective bargaining to apply to all workplaces, regardless
II.iii) The right of trade unions to engage
in collective bargaining to include the right to bargain on all
matters relating to employment.
III.i) The right of trade unions to organise
industrial action in defence of their social and economic interests.
III.ii) The right of trade unions to organise
industrial action in solidarity with other workers at home or
III.iii) The right of trade unions to organise
co-ordinated trans-national action again trans-national corporations.
12. TULO recognises that rights of this
kind are unlikely to be unlimited, even when entrenched in a constitution.
Indeed the ILO allows a range of qualifications to fundamental
trade union rights, while the European Social Charter states expressly
that limits may be imposed on trade union and other rights where
this is "necessary in a democratic society for the protection
of the rights and freedoms of others or for the protection of
public interest, national security, public health or morals".
There is thus a concern that any trade union rights in a Bill
of Rights could easily be trumped by other rights or interests.
In order to avoid this risk, TULO believes that any trade union
rights provision in a British Bill of Rights should follow the
example of the International Covenant on Economic, Social and
Cultural Rights. In article 8, this too purports to provide international
protection for trade union (and other) rights, and in doing so
anticipates the possibility that there will be limits on these
rights. It is also provided, however, that:
"Nothing in this article shall authorize
States Parties to the International Labour Organisation Convention
of 1948 concerning Freedom of Association and Protection of the
Right to Organize 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."
A similar provision in a British Bill of Rights
would ensure that any statutory restrictions on fundamental trade
union rights would at least have to satisfy ILO Conventions, and
that the ILO standard would be the minimum below which British
law could not fall.
13. TULO believes strongly that any future
British Bill of Rights must include trade union rights. This should
not be confined to a provision that simply mimics the weak provisions
of the European Convention on Human Rights, article 11, already
part of our law as a result of the Human Rights Act 1998. This
provides simply that as part of the general right to freedom of
association, everyone has the right to form and join trade unions
for the protection of their interests. It is true that this provision
has been fairly widely interpreted by the European Court of Human
Rights in two cases brought from the United Kingdom in recent
years, one by the NUJ and the RMT, and the other by ASLEF. In
the latter case it was established that:
"trade unions enjoy the freedom to set up
their own rules concerning conditions of membership, including
administrative formalities and payment of fees, as well as other
more substantive criteria, such as the profession or trade exercised
by the would-be member."
Yet despite these developments, the article
11 right remains primitive and poorly developed and falls a long
way short of the full protection of trade union rights to be found
in the Council of Europe's Social Charter and ILO Conventions
87 and 98 as construed by the supervisory bodies.
14. These limitations of article 11 of the
ECHR were recently revealed in a case brought by UNISON where
the Strasbourg court refused to give full recognition to the right
to strike as an incident of the right to freedom of association.
In the human rights era, it is no longer acceptable that the fundamental
rights of trade unions should be compromised by law to the extent
that they are in the United Kingdom. The British government is
increasingly being pulled up by international agencies supervising
treaties that the United Kingdom voluntarily agreed to be bound
by. This is a process that is likely to continue as trade unions
develop new strategies to reclaim the rights that were lost during
the Thatcher and Major years. It is time that this was brought
to an end and time that internationally recognised trade union
rights were entrenched in domestic law, so that British trade
unions could seek a remedy in the British courts when their rights
were violated rather than be compelled to take their grievances
to various international forums. Human rights should be protected
fromand entrenched againstpolitical interference:
this applies as much to the human rights of trade unions and trade
unionists as it does to any other human rights. TULO welcomes
the Bill of Rights debate and the opportunity for the constitutional
entrenchment of trade union rights, following the example of other
23 August 2007