The Trade Union Bill: Striking at the very essence of trade unionism

The right to form and join trade unions has been protected in international law for a very long time. So has the right to protest. The most obvious legal provision is found in Article 11 of the European Convention on Human Rights (now part of our law through the Human Rights Act 1998). The right to protest is broad – free speech means nothing if it does not include the right to say and protest about things other people don’t like or agree with.

That is not to say that the right to join a trade union and to take part in union activities, or the right to protest, are unrestricted; limits can be imposed but only where they are both necessary and proportionate. Moreover, a limitation should not destroy the very essence of the right in question. All this is not only enshrined in international human rights agreements, it is also plain common sense.

The debate about how far the law should intrude on trade unions and their activities has been a hot topic for over 100 years. We are now a long way from the symbolic 1906 Trade Disputes Act which, broadly speaking, established that the law should be kept out of things.

Over the last 100 years trade unions have been subjected to tighter and tighter legal constraints on their activities; the usual mechanism being to make any trade union immunity conditional on compliance with statutory requirements, such as the requirement to hold a pre-strike ballot.

Obviously there comes a point where the intrusion of the law on the trade unions and any action they may take becomes so extensive that trade unions cannot effectively carry out their core functions. At that point, the very essence of trade unionism and the right freely to associate is put in jeopardy. At that point, international standards are broken.

The Trade Union Bill, 2015, takes us down that slippery slope.

Some of the provisions are well known. They include a minimum threshold of a 50% turnout in all industrial action ballots and in the case of ‘important public services’ that unions have the support in ballots of at least 40% of members entitled to vote. Imposing such high thresholds and treating an abstention as a ‘no’ vote are highly controversial steps for three reasons.

First, because there is a significant mismatch between international standards and the Bill in relation to restrictions on ‘important public services’. Under international standards special restrictions may be placed on strike action in ‘essential’ public services. As you would expect that restriction is tightly drawn: ‘essential’ public services only include cases where strike action could endanger the life, personal safety or health of the whole or a part of the population. Under the Bill ‘important public services’ is much more broadly defined to include education, transport and border security.

Second, because treating abstentions as ‘no’ votes has long been frowned upon by the international bodies charged with upholding universal standards. The International Labour Organisation (a special agency of the UN) in particular, has been critical of this on the very simple basis that it is undemocratic and would not be acceptable in other types of ballot. And third, because the high thresholds make strike action so difficult to organise that it threatens the very essence of collective action.

Add the proposals being consulted upon by the Department for Business Innovation and Skills, ostensibly to tackle intimidation of non-striking workers, and the situation gets worse. The proposals include significant further restrictions in relation to picketing, including rules about the wearing of armbands, badges and other items. But they go much further in proposing significant restrictions on ‘wider protests’ (i.e. protests away from the picket line).

The proposed restrictions include a requirement for trade unions to publish in advance their protest plans, setting out where the protest will be, how many will attend, whether those attending know the protest ‘strategy’, whether loudspeakers, banners or props will be used etc. Social media, Facebook and Twitter are not immune – trade unions must give prior notice of their use and “what those blogs and websites will set out”. These are serious inroads into the right to protest that do not apply to other protests.

Since all other laws, including Public Order legislation apply anyway, why should trade union protests be singled out? In almost all protests, the message being communicated is welcome by some but not by others. That is the very essence of free speech. And it is that very essence which risks being extinguished by these provisions. If stronger powers are required for all protests, the Government should seek to introduce them. The fact that they have not done so speaks volumes. They are not necessary; they are not proportionate; and the Government would not succeed in seeking to impose them. If that is the general position, it should be no different for trade unions.

Keir Starmer QC is the MP for Holborn and St Pancras. The full piece will be available in the Young Fabian journal, Anticipations Autumn 2015.