Guest blog post: Legal challenges to the Trade Union Bill

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ViewsNovember 26th, 2015

In July the Government announced their Trade Union Bill and it is currently working its way through parliament. It has been dubbed as a full frontal attack on workers’ rights and civil liberties.

The main changes proposed by the Trade Union Bill are:

  • Introducing a 50% turnout threshold for a ballot for industrial action.
  • An additional threshold of 40% support in the case of “important public services”
  • Voting papers for industrial action ballots will need to include more detailed information and there will be a longer four month time limit for giving notice of industrial action
  • Individual union members would have to expressly “opt in” to contributing to the political fund.
  • The Bill proposes new regulations for unions to supervise picketing
  • In the case of public sector regulations there will be a requirement for the publication of information about the time and cost of union officials’ time off for union duties, with the possibility of such time being limited in future.
  • The Government is consulting on whether to lift the ban on using agency staff to cover striking workers.

There are four possible areas of challenge:

1. Human Rights Challenge

Article 11 of the European Convention on Human Rights guarantees to individuals the right to freedom of assembly and association. It explicitly protects the right to join a trade union, stating that “[e]veryone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” States must not only refrain from taking steps to prevent individuals enjoying this freedom; there is also a ‘positive’ obligation on the state to ensure that this right is practical and effective.

This freedom can only be limited:

in the interest of national security or public safety;

  • for the prevention of crime and disorder; and
  • for the protection of the rights and freedoms of others.

The restrictions must be necessary, proportionate and in accordance with law and there is a ‘positive’ obligation on the state to ensure this right is practical and effective.

Unless permitted by the exceptions, members must be left free to establish and implement their own rules of engagement. It is not for Government to interfere in the internal organisation of groupings of private individuals who operate within the law. However, the proposals in the Bill strike at the heart of the freedom of trade unions members to come together in an effective manner without demonstrating a need for any change at all, let alone one that corresponds with the permitted reasons listed above. The proposals subject trade unions to a regime of excessive regulation in a manner not envisaged for other types of associations or groupings. The Government trumpets its desires to eradicate ‘red tape’ and regulation for business, planning and the like. Contrast this to its approach to trade unions.

2. The Devolution Question

The Scottish TUC has argued that the bill  requires Scottish Parliament consent under the Sewel Convention – consent that will not be forthcoming. Industrial relations and trade union law, like employment law, remains a reserved matter, beyond the powers of the Scottish Parliament. Consent is only needed if the bill “contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers.”

Since industrial relations are reserved the argument is based on the fact that the provisions affecting the public sector trigger the convention. These will certainly affect the Scottish Government itself, as well as local authorities, the NHS and other public service employers in Scotland.  In that sense, they will affect devolved executive functions.

A similar argument applies in relation to Wales. The National Assembly’s powers in relation to ‘public administration’ in subject area 14 are narrow ones; employment is not mentioned in relation to that or to other relevant devolved subjects, though it is not an excepted matter either.  Whether legislation on it would be within devolved competence therefore depends on a combination of inferring such powers or suggesting it is an incidental or consequential provision.  This is also made more complicated by the confusing decisions of the UK Supreme Court, notably the wide scope to legislate provided the legislation ‘relates to’ a devolved subject endorsed in the reference regarding the Agricultural Sector (Wales) Bill, but complicated by more general uncertainty following the NHS Recovery Of Medical Costs for Asbestos Diseases (Wales) Bill.

In contrast, the situation is relatively straightforward as far as Northern Ireland is concerned, trade union matters are a devolved matter; the Trade Union Bill will not apply there as a piece of Westminster legislation.

3. Equality Impact Assessment Challenge

Section 149 of the Equality Act 2010 imposes a legal duty, known as the Public Sector Duty (Equality Duty), on all public bodies, to consider the impact on equalities in all policy and decision making through an Equality Impact Assessment (EIA). An EIA was published in September 2015.

The Government’s analysis of its proposals to weaken workers’ rights is that there is no impact on equality. However, a couple of embarrassing editing slip ups indicate they do not have the data to back up this up. The analysis attempts to argue that vulnerable groups may be assisted by restrictions on strikes in public services but accepts it has no data to back this up. Indeed the Regulatory Policy Committee pointed out that the Government’s evidence and analysis is “not fit for purpose.”

There are now significantly more women trade union members than men, especially in the public sector. Thus these proposals potentially represent a barrier to women’s ability to collectively challenge. Often the very purpose of industrial action is to advance gender equality, such as equal pay, maternity, flexible shift issues. The Government has underestimated, or simply failed to understand, the disproportionate impact on women.

4. Consultation Challenges

The Government consulted on a number of issues connected with the bill. In a consultation the decision-maker’s discretion is not unbounded as it is commonly accepted that certain fundamental propositions must be adhered to. These propositions are known as the Gunning principles:

(i)  consultation must take place when the proposal is still at a formative stage (ie not be predetermined);

(ii)  sufficient reasons must be put forward for the proposal to allow for intelligent consideration and response;

(iii)  adequate time must be given for consideration and response; and

(iv)  the product of consultation must be conscientiously taken into account.

Could elements of the Bill which have been subject to consultation fall foul of these principles be unravelled?

The potential for a legal challenge

Legal challenges would not be easy but are not out of the question. The stakes could not be higher. At the very least the ‘threat’ of such a challenge can be a useful negotiating card as many union officials will know. Unions may wish to take advice on a Human Rights or EIA challenge and the consultation, devolved Governments may wish to consider the constitutional issue.

Michael Imperato is a partner at Watkins & Gunn Solicitors.

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