Legal regulation of trade unions

The extensive laws regulating the internal and external activities of trade unions (developed by consecutive Conservative regimes from the Employment Act 1980 to the Trade Union Reform and Employment Rights 1993) have long been of concern for trade unions. Despite limited reforms introduced by the ‘new’ Labour government in the Employment Acts of 1999 and 2004, it is still the case that the functions of trade unions are impaired by the extent of this regulation. For example, in order to take industrial action unions must comply with highly restrictive balloting provisions that impact on the ‘right to strike’ and in determining matters – such as internal disciplinary procedure and financial affairs – the union rule book is overridden by extensive legal provisions, so compromising trade union autonomy.

Research undertaken to date notes the complexity of the provisions and evaluates in some detail the restrictive impact of many of these statutes on trade union activity. Furthermore, the research takes account of the relevance of international jurisprudence in the area of labour rights and assesses the potential influence of ILO and European Convention rights in a ‘test case’ strategy; aimed to overturn aspects of this extensive government interference in union behaviour. The recent introduction of the Trade Union Bill 2015 (which further restricts trade union freedom) gives further impetus to this enquiry.

Project timeframe

This research commenced in 2010 and is due to end in 2016.

Project objectives

The project objectives are to:

  • examine the legal impact of the trade union regulatory framework on the ‘right to strike’ and trade union internal ‘autonomy’
  • determine how far United Kingdom legal provisions are in violation of international labour law norms
  • analyse and evaluate the implications of this determination for the system of regulation in the United Kingdom
  • explore the problems and issues inherent in utilising International Labour Organisation and European Social Charter jurisprudence at the domestic level
  • consider the efficacy of a ‘test case’ litigation strategy to challenge United Kingdom trade union laws; taking account of violations of European Convention principles and the provisions of the Human Rights Act 1998
  • explore the impact of the Trade Union Bill 2015 on the legality of trade union activity.

Project findings and impact

The focus of the research has been to scrutinise these provisions by reference to international jurisprudence - demonstrating that many elements of this regulatory structure impacting on the ‘right to strike’ and the ‘right to autonomy’ are in violation of universal labour standards across Europe and the norms of international labour law. In particular they violate Article 11 of the European Convention of Human Rights. Many of these highly restrictive provisions are arguably disproportionate limitations without contemporary justification under Article 11(2).

Research findings demonstrate that the view of the domestic judiciary that United Kingdom law does not violate Article 11 and therefore that the provisions of the Human Rights Act 1998 are irrelevant is open to serious question. Drawing on a detailed review of the case law the research indicates that the refusal of the United Kingdom courts to declare aspects of the regulatory framework ‘incompatible’ with the Convention is consistent with the narrow and very technical interpretation of these complex legislative provisions in the national courts. It is also clear that modification of domestic decision making (at the governmental and judicial level) is unlikely to occur as a consequence of the most recent Strasbourg jurisprudence on this issue – RMT v United Kingdom [2014]. Significant change will come about by the Trade Union Bill 2015. Further research is presently ongoing into the legal impact of this at the domestic and international level.

Research team

Charles Barrow

Output

Barrow C (2015) RMT v United Kingdom: The European Court of Human Rights intimidated into timidity or merely consistent in its inconsistency? European Human Rights Law Review (3) 277-285.

Barrow C (2013) Trade Union Rights in the United Kingdom and Article 11 of the European Convention: Past Failures and Future Possibilities, European Human Rights Law Review (1) 56-71.

Barrow C (2013) Balloting requirements and the right to strike: the retreat from Metrobus, The Law Teacher 47(2) 271-278.

Barrow C (2011) UK Courts, balloting requirements and the right to strike: recent developments, The Law Teacher 45(1) 132-144.

Barrow C (2010) Demir and Baykara v Turkey: Breathing Life into Article 11, European Human Rights Law Review (4) 419-424

Partners