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Why does UK bill of rights "debate" ignore trade unions?

About the author
Keith Ewing is Professor of Public Law, King's College London.

Along with a number of other people, I went along to Parliament’s Portcullis House last Wednesday. It was for a meeting on the government’s Green Paper on a Bill of Rights and Responsibilities hosted by the JCHR – the Joint (meaning Lords and Commons) Committee on Human Rights. Henry Porter and Guy Aitchison have both reported on it in their ways. Most members of the Committee were present, as were some key representatives of the three main political parties: Michael Wills, currently Minister at the Justice Department, whose name and picture adorn the Green paper alongside Jack Straw; David Howarth the Liberal Democrat shadow Minister of Justice, and Dominic Grieve the Tory shadow for Justice, a possible successor to Jack Straw. Each addressed us about the Green Paper and related issues.

Also in attendance were a number of people who had submitted evidence to the JCHR’s inquiry on a Bill of Rights, though those who stayed away - or who were denied admission - probably had the best of it. Only after leaving the meeting did I realize that neither the Chairman of the JCHR (Andrew Dismore MP) nor the Justice minister (Michael Wills MP) had answered my question about why trade union rights are not seriously addressed in either the JCHR’s own report on a British Bill of Rights based on the extensive hearings it held, or the government’s subsequent Green Paper. Most of us may have given up on the latter as Guy has blogged. But, as I explained in my intervention, the exclusion of this issue from the former is particularly remarkable; it is more than a silence, and is closer to a suppression in view of the facts that

• four of the 31 written submissions to its inquiry (by TULO (the Trade Union and Labour Party Liaison Organisation), TUC, Unite the Union, and Thompsons (the trade union solicitors) directly addressed this question;See HL 165-II, HC 150-II, Ev 168 - 175?

• trade union rights as protected by human rights treaties are violated by the UK (as the TULO submission points out),

• trade union rights are expressly referred to in the national constitutions of many countries of the EU,

• the South African Constitution which the Committee studied after a trip to that country includes these rights in some detail in section 23, and

• recent decisions of the European Court of Justice have put trade union rights at serious risk (as in the BALPA case last year where the union organized industrial action in protest about BA’s plans to conduct part of its transatlantic business in France).

The last bullet point is particularly significant. A trade union with only 10,000 members had to call off its action, faced with the threat of eye-watering damages of £100 million a day for exercising an internationally recognised human right, namely the right to strike, recognized by the

ILO Convention 87, 1948, article 3;

International Covenant on Economic, Social and Cultural Rights of 1966, article 8;

Council of Europe Social Charter of 1961, article 6(4); and

EU Charter of Fundamental Rights of 2000, article 28,

to all which the UK subscribes. This episode should send shivers down the spine of anyone with a passing knowledge of Labour history (Taff Vale ring any bells, ministers?). In the absence of an answer to my question, I can only speculate about why two detailed studies on a Bill of Rights for the UK should exclude trade union rights: ideological hostility? party political partisanship? institutionalized dislike?, none of which would augur well for the project. Whatever the explanation, the exclusion of the greatest voluntary movement in the country is hardly calculated to attract support for the project from the people whose support will be most needed, or from the organizations which are best able to mobilize that support.

It also provides compelling evidence that this is a debate much too important to be left to processes like last week’s, with its blinkered visions of the nature and purpose of human rights. But all is not yet lost. Apparently impatient with developments in some member states of the Council of Europe, the European Court of Human Rights is beginning to forge a right to collective bargaining and a right to strike from the unlikely material available to it in the ECHR. This follows the example of the Supreme Court of Canada, which has done the same under the Canadian Charter of Rights and Freedoms. The socially progressive European Court of Human Rights (recently criticized by Lord Hoffmann) has thus set itself on a collision course with the neo-liberal European Court of Justice, as well as (sotto voce in the presence of Tories) the nasty and brutish labour laws which were bequeathed to us by Thatcher, and in which New Labour has been happy to wallow.


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