Examination of Witnesses (Questions 83
- 99)
TUESDAY 9 JUNE 2009
MR OWEN
TUDOR, MS
JANET WILLIAMSON,
PROFESSOR KEITH
EWING AND
MR JOHN
HENDY QC
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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