Trade Union Bill

Baroness O'Neill of Bengarve Excerpts

Monday 11th January 2016 Lords Chamber

[Baroness O'Neill of Bengarve (CB)]

My Lords, I declare an interest as chair of the Equality and Human Rights Commission. I shall talk about some of the human rights that are engaged by the Bill.

The Bill sets conditions on the activities of trade unions. It therefore engages the right to freedom of association, which is an important human right. It might seem that this is the worst of moments to discuss the human rights implications of this or any other Bill since we are expecting the Government’s consultation on a future Bill of Rights shortly and changes in the background assumptions or the configuration of some rights might be proposed or implemented.

But now is now, and the right at stake here is unlikely to be changed. It is an ancient one in our country, and one not likely to be ditched by this—or, I hope, any other—Government. Nor do I think that the specification of this right, as drafted for the European Convention on Human Rights by the late Lord Kilmuir, who was a Conservative Lord Chancellor, is likely to be ditched or radically revised, or that it is defective.

Article 11 of the convention, as Lord Kilmuir drafted it, sets out the right to freedom of assembly and association in the following terms. Paragraph 1 states:

“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”.

Paragraph 2 states:

“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”.

There are other provisions I shall not mention. This is a distinctive right which may be restricted only for one of the reasons set out in paragraph 2 of Article 11, and not, for example, for administrative convenience or efficiency. That is not a sufficient reason to restrict. Each restriction enacted must meet at least one of the tests set out in paragraph 2 of Article 11.

Article 11 has certain interesting parallels with Article 9 on freedom of thought, conscience and religion, in that both explicitly set out rights that are to be exercised in conjunction with others. Article 9 reads:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”.

The article goes on, completely in parallel with Article 11:

“Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

What is distinctive about these rights is that they focus on protecting shared or joint, yet fundamental, activities, not just on protecting individual choices for optional activities. Freedom of thought, conscience and religion is not designed to protect individual opinions; for that, the right to freedom of expression is appropriate and sufficient.

However, when we reflect, we all know that freedom of religion and belief is important because it is about protecting shared beliefs and practices that manifest life-orienting beliefs, and is not to be invoked on behalf of isolated or decontextualised opinions. I fear that sometimes it is in employment tribunals, but that is another matter. Equally, the right to freedom of assembly and association with others, including the right to form and to join trade unions for the protection of interests, is not a mere right to choose or refuse membership of a voluntary organisation. It is a right to form such organisations with others for a common purpose, including specifically the protection of interests.

It is evidently legitimate for legislation to set conditions that are necessary on the exercise of this right, as of other rights. It is within the power of Parliament to determine which restrictions will be lawful, but it will need great care and judgment, not merely at Second Reading but above all in Committee and on Report, to test whether each proposed condition set on the operation of trade unions is indeed,

“necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

Those are the tests to which we should look. These tests are addressed up to a point in the useful memorandum from the Department for Business, Innovation and Skills on the way in which the proposed conditions to meet the European convention requirements are to be met, but a lot of work is going to be needed to test the detail of whether the proposed conditions actually meet the required tests.