Any of our business? Human Rights and the UK private sector - Human Rights Joint Committee Contents

Examination of Witnesses (Questions 83 - 99)



  Q83  Chairman: We are now joined by our second panel of witnesses for the Business and Human Rights Inquiry: Owen Tudor, who is Head of EU and International Relations at the TUC; Janet Williamson, who is a Senior Policy Officer, Economic and Social Affairs at the TUC; Professor Keith Ewing, President of the Institute for Employment Rights; and John Hendy QC, Chair of the Institute for Employment Rights. Welcome to you all. Does anybody want to make any opening remarks or shall we get straight into questions?

  Mr Tudor: I just wanted to apologise, especially to the clerks if not to the rest of the Committee, for the lateness of the submission of our evidence.

  Q84  Chairman: Thank you very much. Perhaps I will start with Keith and my question has to be this: I suspect in society as a whole that there is very little perception that employment rights/labour rights are human rights. How would you react to that?

  Professor Ewing: I would be very surprised to encounter that perception nowadays. If we are guided by the terms of international human rights laws and by international human rights treaties, I think it is now clear beyond doubt that labour rights and trade union rights are part and parcel of the great human rights instruments whatever terms of reference we choose to adopt. I will just run off a few of them. We have the ILO Conventions 87 and 98, we have the Social Charter of 1961 and the revised Social Charter of 1996, both of which have trade union rights at their core. We have trade union rights now in the EU Charter of Fundamental Rights of 2000. We find all of these provisions now seeping into Article 11 of the European Convention on Human Rights and the great expansion of the rights of freedom of association in recent decisions of the European Court. Two cases in particular, one the case of Demir v Turkey in November of last year which recognises the right to collective bargaining as part and parcel of the right to freedom of association, and more recently an application from Turkey decided in April of this year which now recognises that the right to strike is part and parcel of Article 11, so this is an evolving jurisprudence which together brings to this important document something which has long been recognised as part and parcel of the human rights movement.

  Q85  Chairman: In your evidence I think you accept that not all international labour treaties are human rights instruments. Am I right about that?

  Professor Ewing: Did we say that? There are a number of core instruments. We can divide them into two, if you like, firstly international treaties. There are those treaties which deal specifically with labour rights. Here I am thinking about the ILO Conventions. If you go to the ILO, which is a UN agency, the ILO itself will say that there are four or five instruments which we regard as fundamental human rights instruments and at the top of that list is the Conventions 87 and 98 which deal with freedom of association and which deal with the right to organise, the right to bargain and the right to strike, so there are, if you like, international human rights treaties that are dedicated to labour rights. In addition to that, there are a number of general human rights treaties in which you will find at the core of the treaty a commitment to labour rights. As I have said before, I think the most prominent of these would be the Social Charters of the Council of Europe and there are also UN instruments as well with which people will be familiar, so far as we are concerned I think the three core trade union rights sit at the heart of the international human rights treaties.

  Q86  Chairman: So you would say there is universal agreement on the requirements imposed on the UK by those international human rights obligations in the labour context?

  Professor Ewing: We have ratified these treaties for the most part so we have undertaken to be bound by them. I cannot see why we are not and why we do not comply with them.

  Mr Hendy: Can I just add to that, trade union rights derive from freedom of association, and freedom of association is embedded in the United Nations Declaration of Human Rights and in the ILO Conventions 87 and 98 and in the European Convention and in the European Social Charter and indeed in EU law as well. If you look at the leading cases on, for example, the right to collective bargaining in the European Court of Human Rights, it is dependent on ILO and European Social Charter jurisprudence which has guided the European Court to declare that the right to collective bargaining is an essential aspect of Article 11 on freedom of association and the right to join a trade union for the protection of workers' interests. If you look at the leading case on the right to strike in European Union law, which is Viking v Finnish Seafarers' Union, which is a controversial case from a trade union aspect, it begins with an assertion that the right to strike is part of the core human rights recognised by European Community law, so I do not think there can be any doubt about the fundamental nature of trade union rights. Just one last word, what we describe as trade union rights of course is a distinction from employment rights and the rights of the individual worker, but trade union rights are enjoyed not just by trade unions but also by individual workers as well, and the cases in the European Court of Human Rights like Wilson & Palmer v United Kingdom and ASLEF v United Kingdom are cases where the European Court of Human Rights have held that these are both individual rights and rights enforceable by trade unions as well.

  Q87  Chairman: Perhaps I can put this to you: some of the witnesses to the Committee have suggested that we should be much more concerned by activities in conflict zones or in high-risk industries where particularly high standards of due diligence should be undertaken by UK companies. Is there some sort of hierarchy of rights where companies should consider their due diligence obligations and, if so, where do these rights fit in that hierarchy?

  Mr Tudor: It is difficult actually identifying a hierarchy of rights obviously, but our view, building on what Keith and John have said, is that certainly the ILO's eight core Conventions which are fundamental human rights and which I think have a different locus than the rest of the Conventions of the ILO because it is a requirement of all members of the ILO to uphold those Conventions regardless of whether they have ratified them themselves as a condition of membership are clearly more important than some of the other ILO Conventions. I think however the key issue is not about whether there is a hierarchy of rights; it is where you apply most of your activity and where do you think it is most important. I would be willing to accept for these cases that pursuing the human rights of people in places like Iran or Zimbabwe or Colombia might well be worth putting more effort into than the British Government for instance protecting the rights of workers in Sweden, but that is just a matter of priorities rather than a matter of hierarchies of rights.

  Q88  Chairman: Can I come back to you, Keith, in the evidence from the Institute you have highlighted a number of areas of concern in relation to UK domestic law in this area. Where do you think changes are needed? Are changes needed in the substantive law or because the existing laws are not respected in practice? Or John?

  Mr Hendy: It is the substantive law, particularly if one looks at the right to strike, for example, where the breaches of international treaties ratified by the UK come because of the existing legislation, so the legislation would have to be changed in order to comply. That has been made clear by the supervisory bodies of the ILO, the European Social Charter, the International Convention on Economic, Social and Cultural Rights, and of course in the past by the European Court of Human Rights, although their legislation was amended in the light of Wilson and Palmer and in the light of ASLEF, but it is plain from the decisions of the ILO and the European Social Charter mechanisms that there are still areas of the law in relation to trade union rights which are not in compliance.

  Q89  Chairman: We have had very few ECHR cases, you have mentioned two, and those are very much at the periphery of some of the things that we have been talking about in terms of right to strike and so on. Why do you think we have not had more cases?

  Mr Hendy: Why do we not have more cases?

  Q90  Chairman: Yes.

  Mr Hendy: You are going to get some more cases! I think lots of reasons. For an individual trade union faced with whether it should support a strike or organise a strike which its lawyers are telling it is in breach of domestic legislation, and yet maybe other lawyers are saying, "Well, it may be in breach of domestic legislation but if you take this all the way to the European Court of Human Rights you may be vindicated," that puts the union in a very difficult position because the union is not going to get there for another year or two by which time the dispute is over and the strike is settled and the whole thing has become completely academic.

  Q91  Chairman: So if we ever see a case it will be like the ASLEF one which concerns a long-term principle for union membership and so on rather than the immediate problems of industrial disputes and strikes being challenged in that way?

  Mr Hendy: Yes, I think there are situations even in relation to industrial action where it is conceivable that there would be litigation that could go all the way to the European Court of Human Rights but the immediacy of the problem is one of the principal reasons why there has not been more litigation at European Court level in relation to that.

  Professor Ewing: Could I add one footnote. The other point I think which is important is that since the mid-1970s there is a line of jurisprudence in the European Human Court of Human Rights on Article 11 which made litigation at that level very unattractive and unlikely to succeed. It says that the Court took a very narrow view of what freedom of association means for these purposes. Since the Wilson case in 2002 and then ASLEF in 2004, and now the most extraordinary decision in 2008 in the Demir case, followed subsequently by the other case I referred to from Turkey, the jurisprudence is now opening up and this is much more hospitable terrain for unions to take complaints. You asked me is the problem one of substantive law or one of enforcement. What I would say is that in the emerging context of the expansion of the jurisprudence it seems to me there are three areas of substantive law where it would not be suitable for trade unions to be looking with a view to litigation because of the difficulty of getting legislation to address the concerns that arise. The first would be on the right to organise around the blacklisting issue. The second would be on the issue of the right to bargain collectively and the very restrictive nature of our collective bargaining legislation that was introduced in 1999. The third would be the right to engage in collective action around which we have been criticised for a number of years by a number of international human rights agencies. At the same time as these decisions are evolving in Strasbourg, we have this problem which John referred to of the restrictive jurisprudence from the Luxembourg Court. We have got courts effectively moving apart and the question is how are we going to reconcile these different approaches on these human rights issues.

  Q92  Chairman: Could we not just sign up to the charter?

  Professor Ewing: It does not matter because this issue is not a charter issue, it is an issue which arises under the fundamental freedoms within the existing treaty. Signing the charter would help but it does not look likely.

  Mr Tudor: John has mentioned the immediacy issue. I recognise the dangers of going down this road but trade unions are not natural litigators. They have other means of resolving disputes and they have other means of establishing effectively fundamental rights. One of the issues I think about whether trade union rights are fundamental human rights is that it is not simply whether it is embodied in law that makes it a fundamental human right, it is also what the general opinion is. Our work with Amnesty International, for instance, demonstrates quite clearly that there is a broad public approach that assumes that trade union rights are human rights, and it is not unknown to have had to explain to some of our members that things which they assume to be their rights actually are not written down anywhere and they are embodied in practice rather than in law. One of the reasons why there are not more cases is simply we find other ways of resolving disputes and we litigate, generally speaking, as a last resort in that circumstance. This is why a number of trade union lawyers have had to take up teaching and being Members of Parliament and things like that, there is not enough work!

  Lord Lester: I am interested because I was counsel who lost the GCHQ case in the bad old days.

  Q93  Earl of Onslow: I would not advertise that, Lord Lester!

  Lord Lester: I agree with Professor Ewing that the jurisprudence at that time bears no real relationship to what has happened since. What I am a bit puzzled about is the notion that I think John Hendy was focusing on that somehow it is difficult for trade unions to get focused litigation off the ground. Are you now not much better off? You have got the Human Rights Act so you have got the possibility of declarations of incompatibility here and you have got a much more sympathetic new single Court in Strasbourg. Using Article 11 to open up these issues seems to me to be a way forward. I do not understand what inhibition there would be. I understand Mr Tudor's remarks about trade unions not liking to sue but I have not noticed they are particularly shy at doing so in key cases. Is it not more sensible to start at least one or two cases that are real test cases to see where the Strasbourg Court now is and the British courts?

  Mr Hendy: The answer is absolutely yes and that work is going to happen. I have a case in the Court of Appeal at the end of this month where the issue of Article 11 in relation to the current restrictions on industrial action in the shape of ballots and notices and so on and so forth is precisely raised. I think it is really, as Professor Ewing has said, that the Demir and Baykara v Turkey case only last November has really opened the door for the use of Article 11 in circumstances where you really would not have thought of doing it in domestic law. I have run Article 11 cases over the last couple of years but without a great deal of success in domestic law, for understandable reasons, but I think you are absolutely right.

  Q94  Chairman: Probably a question for the IER, can changes to the law actually change some of these anti-union practices which you have identified that businesses sometimes get involved in or will new and more imaginative forms of anti-union activity arise as the legislation changes?

  Mr Tudor: This probably sounds like a rather glib and superficial response but I think law has several different consequences. One is the practical implications of exactly what the law says and people, generally speaking in this country, tend to abide by laws rather than not. Secondly, there is the issue of creating a culture and changing attitudes about what needs to be done. It is commonplace to record that there were more recognition agreements signed before the introduction of the current legislation on recognition than afterwards because, by and large, business, like trade unions, prefers to do things through informal agreement rather than necessarily have it tested in the courts, which could be uncertain and costly. It is entirely possible that people will attempt to evade whatever legal positions are elaborated but (a) there is always going to be a large number of people who will not go down that route on a point of principle and (b) there are going to be people who assume that is a rather risky course of action to take and then (c) there will be people who will indeed do exactly as you say. To be honest, I think that really applies to any legislation. As I say, those are not in many cases particularly relevant to human rights law.

  Q95  Chairman: If we look at the mismatch between international standards and domestic law, in fact that is something that this Committee in the last Parliament raised in 2004, and obviously we have been trying to lobby the Government for change, and collectively across the table at the end. What has been the Government's response and business organisations' response to this issue?

  Mr Hendy: The Government say they are not in breach of ILO Conventions 87 and 98. No matter that the supervisory bodies, the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations tells the British Government that it is in non-compliance every year. It seems extraordinary to me that the Government can deny what the supervisory bodies have said but they do.

  Professor Ewing: At the last meeting, you will remember that we had a meeting on the Bill of Rights report over the road, and I raised the question there about why there was no discussion about trade union rights in the proposed Bill of Rights, and I wrote privately to a Minister, who shall remain unnamed, about why is this and why is the Government not engaging with this issue and he wrote back a very satisfactory explanation, but he also said that the Government believed that it fully complied with international obligations under the Social Charter and ILO Conventions. However, if you look at the reports from the Council of Europe, the Committee on Social Rights, it says every time for the United Kingdom that there are the following areas of non-compatibility and every time they identify Article 5 and Article 6, the right to organise and the right to take collective action. Every time it is identified as an issue of non-compliance and every time it is identified not for one reason but for several reasons. I cannot understand how the Government can possibly take the view that it is fully in compliance with these international conventions.

  Mr Tudor: I have to say our experience of writing ILO Conventions is that the British Government's position is that they are in compliance with everything that the ILO embodies in its Conventions, and it therefore surprises us enormously when they refuse to ratify them on the grounds that they are not yet in compliance with the Conventions that they themselves have helped to write. I do not think these are acts of juridical decisions being made, more logically it is political choices being made. You asked in particular about business interests. John Cridland, the Deputy Director General of the CBI, spoke at the Government's ILO 90th anniversary celebrations recently and his argument on that point was not particularly that the UK was actually in compliance with international law on these matters but, as I alluded to earlier, he said it was a question of priorities and it was more important to concentrate on the more difficult areas of the world than Europe where, by and large, an accommodation had been reached, I think what he meant was a political accommodation rather than a social partner accommodation. There are cases obviously where employers and unions can come to agreements which step alongside the law. As I say, I think what the current position is is a conjunction of political forces that makes the British Government and British employers satisfied with where they currently are.

  Q96  Chairman: Collective agreements are not really enforceable?

  Mr Tudor: No.

  Q97  Lord Morris of Handsworth: My first question is directed primarily to Owen from a TUC point of view. Perhaps we ought to start by looking at the Social Charter because there have been a number of references so far in the evidence. The predecessor to this Committee recommended ratification of the revised European Social Charter and the adoption of the collective complaints mechanism which would allow employer organisations or trade unions to bring complaints to the Council of Europe Economic and Social Rights Committee. Could you tell us please how would ratification make a difference to human rights protection in the UK?

  Mr Tudor: Thank you for asking me but actually I think some of our legal friends would be better able to deal with the detail of that. The only point I would make in particular is, to a certain extent, you answer your own question in terms of the fact that it would give us another avenue to make the case for certain things to happen, which I think would have, as I suggested earlier, a political and attitudinal effect.

  Q98  Lord Morris of Handsworth: Can you give us a specific example?

  Mr Tudor: It is actually not so much a specific example but it would change the culture of how we see relationships between employers and unions in workplaces, and that is rather difficult to pin down to specific circumstances. As I said, in terms of the actual legal implications of it, I think there may well be specific examples, but I am more interested in creating a culture whereby employers and unions would not have the same balance as now. This is not exactly therefore an actual example of what you are talking about but it is worth noting that, for instance, in the recent Lindsey oil refinery disputes there were a number of associated disputes alongside that where clearly employers could, had they wished, have used certain legal arrangements to challenge what was being done. The fact that they did not was not because they did not think they had the legal power to do so; it is that they thought they would just make matters worse by doing so. It is that sort of balance of what is it sensible to push and what it is not sensible to push that I think would be one of the impacts of adopting the Social Charter. I suspect in terms of the actual legal implications then it is probably better if Keith or John respond.

  Professor Ewing: I think it would make quite a big difference in this sense: that there is already a right to complain to the Freedom of Association Committee of the ILO specifically on freedom of association issues, but if trade unions had the right to complain under this mechanism as well it would be an additional way of ventilating particular concerns and particular alleged abuses around the areas where the Social Rights Committee has already identified there is a breach by the United Kingdom. Why that would be important is not in the sense that it would necessarily provide a remedy, and not necessarily because it would lead immediately to change in the law by the British Government (because the British Government might not change the law following a decision of the Social Rights Committee on a collective complaint) but because this jurisprudence now feeds in very importantly to the jurisprudence of the Strasbourg Court on Article 11 cases. Suddenly the social rights jurisprudence and ILO jurisprudence have become very, very important, and it is important that trade unions and others who would be able to use this mechanism have the opportunity to ventilate grievances in a way which is inexpensive but has indirect legal effect, so the direct legal effects may not be massive but the indirect legal effects are very important and significant. For that reason we think that trade unions in this country, as they have in Ireland and as they have in other countries of the Council of Europe should have the same opportunity to ventilate and give publicity to particular grievances, perhaps even including the issue which arose in East Lindsey. It seems to me that what is happening in East Lindsey and did happen there represented a breach by the British Government of its obligation to promote collective bargaining and to promote respect for collective agreements. We have in place a mechanism which now allows these agreements to be undermined in breach of our international duties.

  Q99  Lord Morris of Handsworth: I know from the history of the Institute that the issue around so-called blacklisting has been one of the areas of concern in terms of Institute policy. In the light of the recent discovery by the Information Commissioner of the operation of an unlawful database for construction workers, you have called for the Government to use powers under section 3 of the Employment Relations Act to make regulations to do with blacklisting which affect trade union members. Do you know why the Government has not used these powers before now?

  Professor Ewing: We are probably the same as you; we have no idea. I can only presume that the Government thought there was no need to use them (a) because there was a belief that this had ceased to be a problem and (b) because if there was a problem there was existing protection in the Data Protection Act of 1998, but that seems self-evidently, in the light of what we now know, not to be the case.

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