House of Lords

House of Commons

Joint Committee on Human Rights

Legislative Scrutiny: Trade Union Bill

First Report of Session 2015–16

HL Paper 92HC 630

House of Lords

House of Commons

Joint Committee on Human Rights

Legislative Scrutiny: Trade Union Bill

First Report of Session 2015–16

Report, together with formal minutes relating to the report

Ordered by the House of Lords to be printed 3 February 2016

Ordered by the House of Commons to be printed 3 February 2016

HL Paper 92 HC 630

Published on 5 February 2016by authority of the House of CommonsLondon: The Stationery Office Limited

£0.00

Joint Committee on Human Rights The Joint Committee on Human Rights is appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the United Kingdom (but excluding consideration of individual cases); proposals for remedial orders, draft remedial orders and remedial orders.

The Joint Committee has a maximum of six Members appointed by each House, of whom the quorum for any formal proceedings is two from each House.

Current membership

HOUSE OF COMMONS

Ms Harriet Harman QC MP (Labour, Camberwell and Peckham) (Chair)

Fiona Bruce MP (Conservative, Congleton)

Ms Karen Buck MP (Labour, Westminster North)

Jeremy Lefroy MP (Conservative, Stafford)

Mark Pritchard MP (Conservative, The Wrekin)

Amanda Solloway MP (Conservative, Derby North)

HOUSE OF LORDS

Baroness Buscombe (Conservative)

Baroness Hamwee (Liberal Democrat)

Lord Henley (Conservative)

Baroness Lawrence of Clarendon (Labour)

Baroness Prosser (Labour)

Lord Woolf (Crossbench)

Powers

The Committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet at any time (except when Parliament is prorogued or dissolved), to adjourn from place to place, to appoint specialist advisers, and to make Reports to both Houses. The Lords Committee has power to agree with the Commons in the appointment of a Chairman.

Publication

Committee reports are published on the Committee’s website at www.parliament.uk/jchr and by The Stationery Office by Order of the two Houses.

Evidence relating to this report is published on the relevant inquiry page of the Committee’s website.

Committee staff

The current staff of the Committee are Robin James (Commons Clerk), Megan Conway (Lords Clerk), Murray Hunt (Legal Advisor), Alexander Horne (Deputy Legal Advisor), Penny McLean (Committee Specialist), Ami Breen (Legal Assistant), Gabrielle Hill (Senior Committee Assistant), Michelle Owens (Committee Assistant), and Liz Parratt (Media Officer).

Contacts

All correspondence should be addressed to the Clerk of the Joint Committee on Human Rights, Committee Office, House of Commons, London SW1A 0AA. The telephone number for general enquiries is 020 7219 3472; the Committee’s email address is jchr@parliament.uk.

1 Legislative Scrutiny: Trade Union Bill

Contents1 Legislative Scrutiny: Trade Union Bill 3

Introduction 3

Information provided by the Government 4

Legal background 4

2 Ballot Thresholds 7

3 Check-off 9

4 Facility Time 11

5 The International Labour Organisation Convention 13

Conclusions and recommendations 14

Declaration of Lords’ Interests 16

Formal Minutes 17

Published written evidence 18

3 Legislative Scrutiny: Trade Union Bill

1 Legislative Scrutiny: Trade Union Bill

Introduction

1. We announced, on 9 November 2015, that we would be continuing our predecessors’ practice of scrutinising Government Bills for human rights compatibility. We identified a number of Bills which, in our view, potentially raised human rights issues and issued a call for evidence.1

2. The first Bill to be subject to detailed consideration and a report is the Trade Union Bill. We received 13 written submissions relating to this Bill in response to our call for evidence.

3. The Trade Union Bill was introduced in the House of Commons on 15 July 2015. The Bill has completed its Commons stages: Second Reading took place on 14 September.2 Committee Stage commenced on 13 October and concluded on 27 October.3 Report Stage and Third Reading took place on 10 November.4 The Bill was read the first time in the House of Lords on 11 November, received Second Reading on 11 January 2016 5 and Committee stage is due to commence on 8 February.

4. The Secretary of State for Business, Innovation and Skills, Sajid Javid, has certified that, in his view, the Bill is compatible with the European Convention on Human Rights (the Convention). We wrote to the Secretary of State on 18 November asking a number of questions about the Bill. He sent us a holding response on 14 December6 and a substantive response by letter dated 5 January.7

5. The Bill’s main objective is to make provision about industrial action, trade unions, employers’ associations and the functions of the Certification Officer (the statutory authority that oversees trade union administration).8 We considered a number of issues which we considered might raise human rights concerns, namely:

• restrictions on ‘important public services’ requiring a positive vote by at least 40 per cent of those entitled to vote in the ballot to authorise industrial action. This would be in addition to a new 50 per cent turnout threshold (Clauses 2 and 3);

• new rules relating to contributions to and expenditure of political funds (Clause 10 and 11);

• a reserve power to restrict “facility time” (Clause 13);

• the prohibition of so-called “check-off” in the public sector (Clause 14). 1 http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/news-

parliament-2015/legislative-scrutiny-launch/2 HC Deb 14 September 2015 col 760 et seq3 http://services.parliament.uk/bills/2015-16/tradeunion/committees/

houseofcommonspublicbillcommitteeonthetradeunionbill201516.html.4 HC Deb 10 November 2015 c252 et seq5 http://www.publications.parliament.uk/pa/ld201516/ldhansrd/text/160111-0001.htm#160111150004306 http://www.parliament.uk/documents/joint-committees/human-rights/Sajid_David_MP_re_Trade_Union_

Bill_141215.pdf7 http://www.parliament.uk/documents/joint-committees/human-rights/Letter_from_Sajid_Javid_050116.pdf8 Detailed briefings on the contents of the Bill have been prepared by the House of Commons Library – see: http://

researchbriefings.files.parliament.uk/documents/CBP-7295/CBP-7295.pdf and http://researchbriefings.files.parliament.uk/documents/CBP-7369/CBP-7369.pdf

4 Legislative Scrutiny: Trade Union Bill

6. In addition to the consultation on the proposals for new legal requirements relating to the supervision of picketing contained in Clause 9, the Department for Business, Innovation and Skill (BIS) also consulted on measures to tackle intimidation of non-striking workers. In November 2015, the Government announced that no significant additional measures, beyond those contained in the Bill as it was introduced, would be added to the Bill on this subject.

Information provided by the Government

7. An ECHR Memorandum, prepared by BIS was published in July 2015 and was subsequently updated in December to take account of new clauses.9 An Equality Analysis was published on 10 September. This is in in accordance with our predecessor committee’s recommendations for best practice by departments. We welcome the observance of good practice by the Department for Business, Innovation and Skills in its provision of initial information in relation to this Bill.

8. The Government has also held three separate consultations on related issues, namely: Ballot thresholds in important public services; Hiring agency staff during strike action: reforming regulation; and Tackling intimidation of non-striking workers. Each of these consultations has now closed and further clauses have been added to the Bill in response. Three additional impact assessments and a response to the consultation on ballot thresholds (containing skeleton Regulations) 10 were published on 21 January 2016, prior to Committee Stage in the House of Lords. All of these materials will assist with scrutiny of the legislation.

9. There is, however, one matter on which we have to comment adversely. Unfortunately, we are obliged to repeat a point our predecessor Committees have often made in previous legislative scrutiny Reports, relating to the lateness of the Government’s response to our initial questions.

10. The Government’s final response to our letter of 18 November was not received until 5 January, only days before Second Reading in the House of Lords. The response also made reference to the fact that the Government would be publishing further information; but it did not answer all of our questions directly.

11. The lateness of the Government’s response to our initial questions; combined with the fact that it did not answer all of our questions (instead noting that it would be providing further information and consultation responses “shortly”) has not assisted our ability scrutinise the Bill before its Lords Committee Stage.

Legal background

12. The most relevant applicable human rights standard, when considering the Bill, is the right to freedom of association in Article 11 of the European Convention on Human Rights. It provides:

9 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/483385/BIS-15-667-european-convention-on-human-rights-memorandum_intro_lords.pdf

10 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/493880/bis-16-15-consultation-on-ballot-thresholds-in-important-public-services-government-response.pdf

5 Legislative Scrutiny: Trade Union Bill

Freedom of assembly and association

1. Everyone 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.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.11

13. In the case of National Union of Rail, Maritime and Transport Workers v. The United Kingdom (the RMT case)12, the European Court of Human Rights (ECtHR) recalled previous case law establishing that the right to strike is implied by Article 11:

The Court will consider first the applicant’s argument that the right to take strike action must be regarded as an essential element of trade union freedom under Article 11, so that to restrict it would be to impair the very essence of freedom of association.

It recalls that it has already decided a number of cases in which restrictions on industrial action were found to have given rise to violations of Article 11 … what the above-mentioned cases illustrate is that strike action is clearly protected by Article 11.

14. As is plain from the wording of the Article itself, Article 11 is a qualified right.13 Hence, proportionate restrictions on its exercise may be justified under Article 11(2). A restriction on the right to strike implied by Article 11 is to be judged by reference to whether or not it is ‘necessary in a democratic society’. In this context, the ECtHR has noted that it will generally be respectful of how parliaments decide to strike the balance when designing restrictions on the right to strike—national legislatures should be:

allowed a wide margin of appreciation since, by virtue of their direct knowledge of their society and its needs, the national authorities, and in particular the democratically elected parliaments, are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds and what are the legislative measures best suited for the conditions in their country in order to implement the chosen social, economic or industrial policy (see among many authorities Stummer v. Austria [GC], no. 37452/02, §89, ECHR 2011).14

11 A more detailed Fact Sheet on Trade Union Rights was published by the Press Unit of the European Court of Human Rights in April 2014. It is available at: http://www.echr.coe.int/Documents/FS_Trade_union_ENG.pdf

12 [2014] ECHR 31045/10.13 Qualified rights are rights which require a balance between the rights of the individual and the needs of the wider

community or state interest.14 National Union of Rail, Maritime and Transport Workers v. The United Kingdom [2014] ECHR 31045/10

6 Legislative Scrutiny: Trade Union Bill

15. However, in the same judgment, the ECtHR has also held that:

If a legislative restriction strikes at the core of trade union activity, a lesser margin of appreciation is to be recognised to the national legislature and more is required to justify the proportionality of the resultant interference, in the general interest, with the exercise of trade union freedom.

16. While the Government notes in its ECHR Memorandum that it should be allowed a ‘wide margin of appreciation’ in implementing its policy, it has not acknowledged directly the fact that the Strasbourg case law also provides that: “if a legislative restriction strikes at the core of trade union activity, a lesser margin of appreciation is to be recognised to the national legislature.”

17. Accordingly, in addition to considering certain individual clauses, we took the view that we ought also to consider the cumulative impact of the Bill on the right to strike. This is particularly so when certain measures relating to ballot thresholds and facility time will be introduced by way of secondary legislation. Given that the devil is likely to be in the detail, this makes it more difficult for us to judge the proportionality of any measures at this stage.

18. The Trade Union Bill raises a number of potential human rights concerns. Some of the relevant proposals, particularly those relating to ballot thresholds and facility time, will be introduced by way of secondary legislation. This makes an assessment of the legality and proportionality of these measures more difficult at this stage.

19. We are also of the view that it is important to consider the cumulative impact of the proposals on the right to strike which is protected by Article 11 of the Convention. Accordingly, assuming it passes its remaining stages, we recommend that the Bill be a candidate for early post-legislative scrutiny which can take account of any subsequent secondary legislation.

7 Legislative Scrutiny: Trade Union Bill

2 Ballot Thresholds20. Clause 2 of the Bill would introduce a 50% turnout requirement for industrial action ballots (in addition to the current requirement for a majority vote in favour of action). Clause 3 would also require a positive vote by at least 40% of those entitled to vote in the ballot where the industrial action took place in an ‘important public service.’ This would be in addition to the 50 per cent turn out threshold and the requirement for a majority vote.

21. Important public services are not defined in the Bill and would be set out in subsequent regulations—but would fall only within the following categories: health services; education of those aged under 17; fire services; transport services; decommissioning of nuclear installations and management of radioactive waste and spent fuel; or border security. Should any of these balloting rules fail to be applied properly then an employer involved in the dispute could apply to Court for an injunction preventing any strike action from taking place.

22. In its Consultation Response, published on 21 January 2016, the Government acknowledged that respondents had highlighted the fact that unions and employers would need clarity around which services would be included in the 40% threshold. It therefore agreed to table an amendment at Lords Committee Stage to remove a broad reference to “ancillary workers” from Clause 3.

23. The Government’s ECHR Memorandum accepts that these provisions potentially engage Article 11 of the Convention and that the provision relating to important public services also engages the right not to be discriminated against in the enjoyment of Convention rights (Article 14). In relation to the more restrictive measures on ‘important public services’ the Government has cited the case of Matelly v France (which was a case concerning trade unions in the armed forces)15 to support the proposition that:

the context and nature of the sector could mean that even significant restrictions could be imposed on forms of action and expression provided that such restrictions did not deprive them of the general right of association.

24. Further case-law cited by the Government (Junta Rectora Del Ertzainen National Elkartasuna (ER.N.E.) v Spain16 (where a ban on strike action was upheld) related to members of the police force. The ECHR Memorandum acknowledges explicitly that in considering whether police officers had been discriminated against in comparison with other sectors (e.g. doctors and firefighters who retained the right to strike) the ECtHR found that the difference in treatment was “objectively justified in the light of the substantive difference between the nature and duties of police officers and workers in other sectors.”

15 (Application no. 10609/10). The case (in which judgment was delivered in 2014) concerned the absolute prohibition on trade unions within the French armed forces. The ECtHR held, unanimously, that there had been a violation of Article 11 of the Convention. The Court found in particular that the authorities’ decision in respect of Mr Matelly (an order to resign from an association of which he was a member) amounted to an absolute prohibition on military personnel joining a trade-union-like occupational group, formed to defend their occupational and non-pecuniary interests, and that the grounds for such a decision had been neither relevant nor sufficient. It concluded that, while the exercise by military personnel of freedom of association could be subject to legitimate restrictions, a blanket ban on forming or joining a trade union encroached on the very essence of this freedom, and was as such prohibited by the Convention.

16 (Application no. 45892/09).

8 Legislative Scrutiny: Trade Union Bill

25. Clearly, the Government’s proposal in respect of important public services does not amount to a ban on strike action; nonetheless, in order to justify a difference in treatment between, for example, teachers and providers of health services and transport services (which might be distinguished from the sort of security activities undertaken by the armed forces, police etc.) and other workers, the Government would have to demonstrate that this was objectively justified. The ECHR Memorandum seeks to do this on the grounds that:

industrial action in important public services causes significant inconvenience (including financial loss) to the general public and causes economic harm to the economy.

26. The consultation paper Ballot thresholds in important public services17 considered these issues in more detail. It accepted that there may be a difference between, for example, the inconvenience caused by the cancellation and re-scheduling of out-patient appointments and elective surgery and the potential for serious risk of harm to the public through strike action among staff who provide accident and emergency care, those supplying and administering emergency medicine and surgery, and those providing secure mental health services.

27. The skeleton Regulations, published with the Consultation Response on 21 January, provide for a rather more narrowly defined group of workers; certain private sector workers would be subject to the threshold where they are delivering an important public service; and the Government has indicated that it would “require ballots to be run under the threshold where a majority of affected workers are carrying out an important public service.”

28. The human rights compatibility of any measures on ballot thresholds in important public services will depend upon whether the scope of the regulations used to implement the measure is proportionate and whether the Government provides an objective justification for the difference in treatment between workers delivering an important public service and other workers.

29. In that context, while they have been delivered very late in the day, it is helpful that the Government has published skeleton Regulations prior to Committee stage. We draw this new material to the attention of both Houses.

30. We note only that the draft Regulations include both staff working in emergency services, such as: the health service, fire service, and border security; and also teaching staff and a wide range of transport services (including buses and passenger railway services). Although strikes by these latter staff may cause serious inconvenience, it is not clear that they cause a serious risk of harm to the public.

17 Department for Business, Innovation and Skills, Consultation on ballot thresholds in important public services, July 2015

9 Legislative Scrutiny: Trade Union Bill

3 Check-off31. Although the Trade Union Bill was published without any provisions on the deduction of union subscriptions from wages in the public sector (usually known as check-off), the Government announced that the Bill would be used to abolish check-off in the public sector. This is being implemented via Clause 14 (which was added at Committee stage in the Commons). The TUC, in its written evidence to us, argued that:

The check off system provides an easy and convenient way for workers to pay their subscription to their union at minimal or no cost to their employer, who in the past will have charged the union a small administration fee for the costs incurred in dealing with the practice. The benefit to members was recently acknowledged by the High Court, which held unlawful a previous attempt to withdraw check off facilities in the civil service.18

32. The case that they referenced was Hickey and another v Secretary of State for Communities and Local Government19 where Mr Justice Supperstone observed that:

I am not impressed by the argument that check off is only or primarily for the benefit of the union as such, rather than for its members in their capacity as employees. It seems to me that there is a real benefit to employees in the administrative convenience of not having to make their own arrangements for payments each month, or having to set up a direct debit or standing order and then change it or replace it from time to time as may be necessary. Moreover, the benefit to the union in the arrangement consists in part in the savings in time and cost in not having to undertake the administrative exercise of collecting payments individually from members. Any cost benefit to the union is necessarily a benefit to its members as such and in their capacity as employees. It also seems to me that an efficient and secure system of subscription collection for a union is in the interest of all its members. Each member benefits from the efficient and secure collection of dues from other members and check-off benefits each member in that way.

33. The initial ECHR Memorandum published by the Government did not consider whether the changes relating to check-off arrangements engaged Convention rights.

34. We raised this issue in our letter to the Secretary of State and asked for an assessment as to whether the Government’s proposals would be compatible with the “right to peaceful enjoyment of possessions”20 (Art 1, Protocol 1 to the Convention) and the right not to be treated differently in the enjoyment of that right without objective justification (Article 14 of the Convention), particularly in circumstances where check-off amounts to a contractual right.

18 http://www.parliament.uk/documents/joint-committees/human-rights/Submission_from_TUC.pdf 19 [2013] EWHC 316320 That is, the right to property.

10 Legislative Scrutiny: Trade Union Bill

35. We have also received written evidence, for example from the TUC,21 Professor K D Ewing and John Hendy QC,22 arguing that, by rendering unenforceable any collective bargaining on the use of the check-off, the provision would also violate Article 11(1) of the Convention on the grounds that Article 11:

does not permit the State to annul an existing collective agreement (which is not inherently unlawful in its terms) freely negotiated between an employer and a trade union.23

36. The Government took the view that, although some workers may have a contractual right to check-off, and that Clause 14 of the Bill would remove those rights prospectively from its date of entry into force, this did not engage Article 1, Protocol 1. As a result, it did not address the fact that the policy might be perceived as discriminatory if other deductions (for example for charitable donations) are to be allowed to be made in the same way. Since contractual rights constitute “possessions” for the purposes of Article 1 Protocol 1 to the Convention, this may amount to differential treatment of trade union members in their enjoyment of the right to property, which requires the Government to demonstrate objective justification.

37. We draw to the attention of both Houses that Clause 14 of the Trade Union Bill, would, in some circumstances, remove from certain public sector workers a contractual right to have union subscriptions deducted from wages (known as check-off), which constitute “possessions” for the purposes of Article 1 Protocol 1. This might amount to differential treatment of trade union members in their enjoyment of the right to property, which requires the Government to demonstrate objective justification for the difference of treatment which, so far, the Government has not yet provided.

21 See:http://www.parliament.uk/documents/joint-committees/human-rights/Submission_from_TUC.pdf In this submission the TUC also raise relevant issues relating to the ILO Conventions discussed further at paras 45-50 of this Report.

22 TUB000823 TUB0008, paragraph 34. See: Demir and Baycara v Turkey [2008] ECHR 1345.

11 Legislative Scrutiny: Trade Union Bill

4 Facility Time38. Clause 13 would create a reserve power whereby a Minister may make regulations restricting facility time. Facility time is time off from a person’s normal work to undertake trade union duties, learning development or activities. The ECHR Memorandum initially acknowledged that “it is proposed that the clause will enable the regulations to have effect in relation to existing contractual arrangements and could therefore have retrospective effect.” The use of legislation which has retrospective effect potentially raises a rule of law issue. Where legislation retrospectively affects fundamental rights it will require compelling justification. The House of Lords Constitution Committee has previously observed in its reports that:

• Enacting legislation with retrospective effect should be avoided.

• Retrospective legislation should only be used when there is a compelling reason to do so.

• A legislative power to make a provision which has retrospective effect should be justified on the basis of ‘necessity’, and not of ‘desirability’.24

39. The ECHR Memorandum stated that the Government “does not consider that many organisations or individuals will be affected by the retrospective nature of the provisions”. The Memorandum also accepted that both Articles 11 and 14 of the Convention are engaged. Without sight of the proposed regulations it is difficult to judge how proportionate any restrictions might be.

40. We wrote to BIS on this issue. In response, the Secretary of State sought to clarify the Government’s position, noting that any exercise of the power in Clause 13 would only apply prospectively, so whilst regulations made under the clause might affect contracts entered into before the regulations’ entry into force, they would only do so with effect from the regulations’ entry into force.

41. We also asked the Government for their estimate of the number of people affected by the proposals. In response, the Government merely stated that “we are due to publish our impact assessment soon”; though it recognised that in the wider public sector it was possible that contractual entitlements might be impacted by the proposals.

42. On 21 January, the Government published an Impact Assessment on the issue of facility time. The Impact Assessment indicated that the Government’s preferred option was to require reporting of facility time across public sector employers to improve transparency and monitoring; but with a power to make regulations setting a cap on the paid time off taken by employer’s trade union representatives.

43. In its written evidence to us, the Government argues that the regulation making power would be a “power of last resort” and that any interference with existing contractual rights “should be kept to a minimum.”

24 J. Simson Caird, R. Hazell, D. Oliver, The Constitutional Standards of the House of Lords Select Committee on the Constitution, 2nd Edition, (Constitution Unit, 2015), p6

12 Legislative Scrutiny: Trade Union Bill

44. We note the fact that the regulation-making power on facility time, under Clause 13 of the Bill would be a “power of last resort”. It is unfortunate that the Government has not been able to provide any further detail of the extent of the perceived problem before seeking to take these powers. We welcome the Government’s commitment to provide a new impact assessment before any regulations are laid under this provision.

13 Legislative Scrutiny: Trade Union Bill

5 The International Labour Organisation Convention

45. The Government has provided a formal assessment of the effect of its Bill in respect of rights in the European Convention on Human Rights; but it did not initially address other international human rights obligations: most notably those under the International Labour Organisation (ILO) Conventions. The most relevant is ILO Convention No. 87 on the Freedom of Association and Protection of the Right to Organise.

46. The UK has ratified ILO Convention 87 and is therefore obliged to ensure that its national labour laws and protections comply with the terms of the Convention. We wrote to BIS, asking it to address concerns that had been raised by, amongst others, Professor KD Ewing, John Hendy QC25, the TUC26 and Unite.27.

47. The Government provided a detailed assessment of the Bill’s compatibility with the ILO Conventions in an Annex to its letter of 5 January. The gist of that assessment is that that the Government does not accept that either the UK’s trade union legislation to date, or the provisions in the Bill, are contrary to the ILO Conventions.

48. We subsequently received further written evidence on this issue from the TUC, which argued that the Government had failed to make a convincing case that the Bill is consistent with the UK’s obligations under the ILO Conventions (including, in addition to Convention 87, Conventions 98, 135 and 151).28

49. The TUC responded to the Secretary of State’s letter in wider terms, claiming that the Government is relying on an exceptional decision (the RMT case) to support its wider legal analysis, whilst ignoring a broad range of cases that does not support its position. The TUC has also highlighted what it considers to be a lack of “democratic consensus” on the Bill, and it has supplied us with a copy of a submission it has made to the ILO Committee of Experts in which it argues that the Government’s proposals violate ILO Conventions 87, 98 and 151.

50. We note the detailed analysis provided by both the Government and the TUC on the United Kingdom’s obligations under the ILO Conventions, and the fact that the TUC has made a submission to the ILO Committee of Experts to the effect that the Government’s proposals would violate ILO Conventions 87, 98 and 151. We draw this information to the attention of both Houses.

25 TUB000826 Letter from Frances O’Grady, General Secretary, TUC, 3 November 201527 TUB000428 Letter from Frances O’ Grady, General Secretary, TUC, 20 January 2016: http://www.parliament.uk/documents/

joint-committees/human-rights/Letter_from_Frances_O’Grady_200116.pdf

14 Legislative Scrutiny: Trade Union Bill

Conclusions and recommendations

Legislative Scrutiny: Trade Union Bill

1. We welcome the observance of good practice by the Department for Business, Innovation and Skills in its provision of initial information in relation to this Bill. (Paragraph 7)

2. The lateness of the Government’s response to our initial questions; combined with the fact that it did not answer all of our questions (instead noting that it would be providing further information and consultation responses “shortly”) has not assisted our ability scrutinise the Bill before its Lords Committee Stage. (Paragraph 11)

3. The Trade Union Bill raises a number of potential human rights concerns. Some of the relevant proposals, particularly those relating to ballot thresholds and facility time, will be introduced by way of secondary legislation. This makes an assessment of the legality and proportionality of these measures more difficult at this stage. (Paragraph 18)

4. We are also of the view that it is important to consider the cumulative impact of the proposals on the right to strike which is protected by Article 11 of the Convention. Accordingly, assuming it passes its remaining stages, we recommend that the Bill be a candidate for early post-legislative scrutiny which can take account of any subsequent secondary legislation. (Paragraph 19)

Ballot Thresholds

5. The human rights compatibility of any measures on ballot thresholds in important public services will depend upon whether the scope of the regulations used to implement the measure is proportionate and whether the Government provides an objective justification for the difference in treatment between workers delivering an important public service and other workers. (Paragraph 28)

6. In that context, while they have been delivered very late in the day, it is helpful that the Government has published skeleton Regulations prior to Committee stage. We draw this new material to the attention of both Houses. (Paragraph 29)

7. We note only that the draft Regulations include both staff working in emergency services, such as: the health service, fire service, and border security; and also teaching staff and a wide range of transport services (including buses and passenger railway services). Although strikes by these latter staff may cause serious inconvenience, it is not clear that they cause a serious risk of harm to the public. (Paragraph 30)

Check-off

8. We draw to the attention of both Houses that Clause 14 of the Trade Union Bill, would, in some circumstances, remove from certain public sector workers a contractual right to have union subscriptions deducted from wages (known as

15 Legislative Scrutiny: Trade Union Bill

check-off), which constitute “possessions” for the purposes of Article 1 Protocol 1. This might amount to differential treatment of trade union members in their enjoyment of the right to property, which requires the Government to demonstrate objective justification for the difference of treatment which, so far, the Government has not yet provided. (Paragraph 37)

Facility Time

9. We note the fact that the regulation-making power on facility time, under Clause 13 of the Bill would be a “power of last resort”. It is unfortunate that the Government has not been able to provide any further detail of the extent of the perceived problem before seeking to take these powers. We welcome the Government’s commitment to provide a new impact assessment before any regulations are laid under this provision. (Paragraph 44)

The International Labour Organisation Convention

10. We note the detailed analysis provided by both the Government and the TUC on the United Kingdom’s obligations under the ILO Conventions, and the fact that the TUC has made a submission to the ILO Committee of Experts to the effect that the Government’s proposals would violate ILO Conventions 87, 98 and 151. We draw this information to the attention of both Houses. (Paragraph 50)

16 Legislative Scrutiny: Trade Union Bill

Declaration of Lords’ InterestsBaroness Prosser

Member and pension recipient of the Unite Union

17 Legislative Scrutiny: Trade Union Bill

Formal MinutesWednesday 3 February 2016

Members present:

Harriet Harman, in the Chair

Fiona BruceKaren BuckJeremy LefroyMark PritchardAmanda Solloway

Baroness Lawrence of ClarendonBaroness ProsserLord Woolf

Draft Report (Legislative Scrutiny: Trade Union Bill), proposed by the Chair, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 50 read and agreed to.

Resolved, That the Report be the First Report of the Committee to the House.

Ordered, That the Chair make the Report to the House of Commons and that the Report be made to the House of Lords.

[Adjourned till Wednesday 10 February at 3.00 pm

18 Legislative Scrutiny: Trade Union Bill

Published written evidenceThe following written evidence was received and can be viewed on the inquiry page of the Committee’s website. TUB numbers are generated by the evidence processing system and so may not be complete.

1 Cllr Mike Wollacott (TUB0013)

2 Communication Workers Union (TUB0007)

3 EPSU (TUB0006)

4 Labour Campaign for Human Rights (TUB0002)

5 National Union of Teachers (TUB0010)

6 Professor Keith Ewing (TUB0008)

7 Professor Keith Ewing (TUB0012)

8 Public Services International (TUB0011)

9 TSSA (TUB0003)

10 Unison (TUB0005)

11 Unite the Union (TUB0004)

12 Professor Keith Ewing (TUB0009)

13 TUC (TUB0001)