The Trade Union Bill – an assault on freedom of expression and assembly
Posted on 8th October 2015
On 14 September, the Trade Union Bill 2015-16 passed its second reading in the House of Commons. Introducing the bill, the Secretary of State of Business, Innovation and Skills, Sajid Javid, noted that unions had ‘helped to secure higher wages, safer workplaces and stronger employee rights’. He noted they helped his own father, both when he was working in cotton mills and when challenging a whites-only policy that could otherwise have prevented him from becoming a bus driver.
If Mr Javid saw any contradiction between starting with such a strong endorsement of the social value of unions before introducing a bill designed explicitly to weaken their power, there was little sign of it, except for a vague assertion that ‘the workplace has changed and evolved since then.’ It is a truism to note that the workplace is not the same as it was several decades ago, but in an era where an estimated 744,000 people now work on insecure ‘zero-hours’ contracts with no guarantee of work from one day to the next, one could fairly question whether that change has been primarily for the better or the worse.
As pointed out by Labour MP Dennis Skinner during the debate, every trade union in the country – including those with no history of strike action such as the Royal College of Nursing – opposes the bill. But the new legislation is not simply an attack on the sizeable minority (almost six million people) of the British population that belong to unions – it also threatens the freedom to protest, freedom of expression and basic principles of workplace democracy.
The UK already has some of the most restrictive trade union laws in Western Europe. In a statement following his visit to the UK in January 2013, the United Nations Special Rapporteur on the right to freedom of assembly Maina Kiai noted his concern about ‘undue constraints on the right to strike’ because of the prohibition, since 1982, on secondary picketing, i.e. strikes which take place in solidarity with direct industrial action. As well as calling on the UK to repeal these restrictions ‘bring the UK into conformity with human rights law’, he also noted his alarm regarding the practice of blacklisting union members in the building trade and the apparent failure to penalise those responsible.
In this context, it is easy to understand why Shadow First Secretary of State, Angela Eagle, argued that ‘There is no necessity to employ the law in this draconian way, especially when this country already has the most restrictive trade union laws in Europe.’ Opposition is not confined to the Labour Party. Vince Cable, the Liberal Democrat former business secretary, has described the bill as ‘very provocative, highly ideological and [having] no evidence base at all’ while the Conservative’s own David Davis has called parts of the Bill reminiscent of Franco’s Spain. The Bill is also condemned by key human rights organisations including Liberty, Amnesty International and the British Institute of Human Rights.
Democracy and Bureaucracy in the Workplace
Workers in the UK are already subject to very restrictive laws on balloting, which include the requirement that votes take place by post rather than electronically or in the workplace. Were the Bill to become law, the turnout in a ballot would be increased to 50%, meaning if fewer than this number voted the strike could not take place.
Furthermore, for a significant section of public sector workers defined as being in ‘important public services,’ a strike would require votes in favour by at least 40% of those eligible to vote. The group of workers potentially affected is widely defined, to include education and transport workers, and could potentially be supplemented by secondary legislation, thus allowing the government to react against sectors in dispute.
It has been widely pointed out that such requirements constitute an extreme hypocrisy from a government elected by only 24% of eligible voters. Along with this serious restriction on the possibility of strike action, even where supported by a majority, the Bill would also give the Certification Officer (the government regulator for trade unions) the power to investigate unions at will, and to remove and access their records, and would allow employers to hire strike-breaking agency staff thus reducing the effectiveness of any strike.
Picketing and Freedom of Assembly
Amongst the most controversial aspects of the Bill are its restrictive provisions on picketing. These include the introduction of a statutory requirement for a picket supervisor, who must wear an armband to identify herself and supervise the maximum stipulated number of workers on a picket line, which is currently set at six. Unions in breach could face crippling fines of up to £20,000.00.
These requirements are particularly concerning in light of the blacklisting scandal which has now been exposed in the building industry, whereby information is shared between employers and used to deny positions to those workers considered as ‘troublemakers’ because of their role, for example, in raising health and safety issues on sites. In addition, the case of John Catt has highlighted the retention of data regarding protestors who have not been convicted of criminal offences by police.
Taking this background into account, it is reasonable to assume that a picket supervisor would likewise be at risk of having data about their activities stored and shared by police and / or employers, interfering with their own rights to privacy. Furthermore, if these provisions deter pickets from taking place at all, this will have a serious impact on rights to freedom of assembly.
Freedom of Expression under Threat
The Bill further introduces a requirement for unions in industrial disputes to provide the police with two weeks’ advance warning of posts on social media, such as Facebook or Twitter. This proposal betrays a deep – and quite possibly willful – misunderstanding of the way social media functions, being based on quick reactions, instantaneous comments and responses to opposed viewpoints.
But beyond this, it is deeply concerning that a power would effectively be introduced to monitor, in advance, online political posts, beyond the extensive criminal laws that already exist to protect against hate speech, harassment or incitement to violence. Like many measures introduced by the current government, this is likely to constitute a ‘thin end of the wedge:’ if such restrictions can be placed on striking workers, we cannot be confident that other protestors, campaigners or even those that disagree with government policies will not be next.
The right to strike in law
Article 11 of the European Convention of Human Rights (ECHR) provides a right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions. Although restrictions can be placed on these rights, they must be necessary on the basis of specific social needs such as national security, public safety, or the prevention of disorder or crime. Similarly, the right to freedom of expression can be limited, but only on the basis of certain specified grounds.
While the right to freedom of association under Article 11 ECHR was initially interpreted restrictively on the question of workers’ collective rights, the position has altered in recent years. In the 2008 case of Demir & Baykara v Turkey, the European Court of Human Rights indicated that the right to bargain collectively had, in principle, become one of the essential elements of the “right to form and join trade unions” contained in Article 11 of the Convention.
The changing position reflected not only the practises of contracting states but also developments in both international and national Labour law. For example, the EU Charter of Fundamental Rights, which is binding on governments of the EU, expressly states that workers have the right to take collective action, including strike action, to defend their interests. The UK has also ratified the International Labour Organisation (ILO) Convention No 98 concerning the Right to Organise and Bargain Collectively.
Importantly as regards the Trade Union Bill’s proposals to impose differential conditions on public sector workers, the judgment in Demir & Baykara v Turkey also makes it clear that public officials should, in principle, enjoy the same rights as other citizens, with trade-union rights restricted only where this is necessary for the proper exercise of their public functions. The court further stated that the restrictions in Article 11 ‘are to be construed strictly’ and that states have only a limited margin of appreciation in deciding what constitutes a ‘pressing social need’ to justify restrictions on freedom of association.
It is highly questionable whether there is any such ‘pressing social need’ to justify the changes being proposed in the Trade Union Bill. The justifications offered by Ministers focus on the inconvenience to non-striking workers caused to those on strike, but this is not a new or exceptional issue, and there is certainly no suggestion in any of the relevant international judgments or instruments that strikes are to be permitted only where they do not cause inconvenience.
Finally, it should be noted that these changes are being introduced at the same time as the government is proposing to repeal the Human Rights Act 1998 and replace it with a ‘British Bill of Rights.’ To date, the question of which rights will not be included within the new Bill has not been addressed, and it is quite possible that the rights engaged by this Bill – freedom of expression and assembly – will be part of the category not considered to be ‘core’ rights and therefore weakened. Seen in this light, the Trade Union Bill can be viewed as part of a wider assault on civil liberties, and campaigning against its introduction must be a priority.
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