Trade Union Bill — House of Lords, 2016-02-08
Topic: Civil Rights
David Pannick (Crossbench, Unknown): My Lords, your Lordships will have seen the report published last Friday by the Joint Committee on Human Rights on the application of Article 11 of the European Convention on Human Rights, which guarantees freedom of association, including the right to form and join a trade union. This is of particular relevance to the issue we are debating—electronic balloting The Joint Committee’s report mentions that in 2014 the European Court of Human Rights dismissed a complaint brought by the National Union of Rail, Maritime and Transport Workers about the ban on secondary action. I declare an interest: I was counsel for the United Kingdom Government in that case. The European court said that it will generally respect a legislature’s policy choices in relation to social and economic issues, including its laws on industrial relations, which it accurately describes as a, "legislative policy area of recognised sensitivity", unless the choices the legislature makes are "manifestly without reasonable foundation" The European court said that a democratically elected Parliament is "better placed" to identify, "what is in the public interest on social and economic grounds" The Joint Committee points out that the European court added that, the more far-reaching the interference with a core trade union activity—for example, requiring the dissolution of a trade union—the greater the justification required. I think, however, that the European court and courts in this country would almost certainly regard the basic provisions in Clauses 2 and 3 as not going to the core of trade union activity because the existence of trade unions and the rights to call a strike are unaffected, albeit that important limits and conditions are imposed. Parliament would, I think, be acting well within its broad scope of discretion if we decided that the disruption to the lives of others caused by strikes, particularly in the public sector, justified the general measures in Clauses 2 and 3 I would be very surprised if the European court were to agree with the noble Lord, Lord Monks, that the threshold provisions are arbitrary. However, I agree with the Joint Committee that the Government may be vulnerable to a legal challenge under Article 11 because a court will consider the package of statutory provisions as a whole when it assesses whether those provisions are proportionate and whether they have an objective justification. If the Government do not compromise on some of the less attractive provisions of the Bill, to which we will come, such as check-off, they will be at much greater risk of a human rights complaint being taken seriously by the court Clauses 2 and 3 would be particularly vulnerable to legal challenge if the Government refuse to allow for electronic balloting. Allowing online balloting would manifestly promote the professed objective of the Bill to enhance democratic decision-making on strikes. My advice to the Government is to consider carefully the amendments in this group and to seek an accommodation to allow electronic balloting to reduce what will otherwise be the legal vulnerability of Clauses 2 and 3, which could damage an important objective of the Bill.