The Round-Up: Human Rights and the Trade Union Bill

18 January 2016 by Charlotte Bellamy

Charlotte Bellamy contemplates the latest human rights happenings  

Until recently the Tolpuddle Martyrs peered down from a banner in Westminster Hall in an exhibition celebrating the journey of rights in democratic society over the last 800 years.

The Tolpuddle Martyrs were taken down last month. Meanwhile, the Trade Union Bill has passed through its second reading in the House of Lords. Just before the reading, the Equality and Human Rights Commission released a report on the human rights implications for the Bill, the thrust of which is that its ‘regressive nature’ may cause the UK to fall short of its obligations under the European Convention of Human Rights.

In particular, the human rights implications of the bill are:

Clause 9 – Union supervision of picketing – this clause adds the new requirement that the appointed picket supervisor must carry an authorisation letter, and wear a badge or other identification. Their details should be provided to the police.

Described by Conservative David Davis MP as reminiscent of Franco’s Spain, there are without a doubt big questions over Clause 9 – what will happen to this information when given to the police? How long will it be stored for? Given the recently uncovered history of ‘blacklisting’, a practice potentially linked to the police – where those known to be involved in defending workplace rights were added to a blacklist used by over 300 recruiting companies – this may prove a disincentive altogether to joining pickets.

In the Commission’s analysis, Clause 9 is a potential breach of Article 11 (freedom of association). Though an Article 11 right may be proportionally restricted to pursue a legitimate aim, which can be the protection of the rights of others, they consider that there is insufficient evidence of this being achieved by Clause 9. The fact that these requirements are only imposed on trade unions and those exercising Article 11 rights also suggests Article 14 is engaged (anti-discrimination) – since anyone else can go and picket wherever they want without these requirements.

Clause 13 – Facility time – this clause would give ministers the ‘open-ended’ power to make amendments to legislation regarding the amount of time members can spend on union activities at work, known as ‘facility time’, within the public sector. In the Commission’s view, such power could be used for ‘disproportionate interference to freedom of association rights under Article 11’, as well as engaging Article 14 (as it is only public sector employees who will be affected).

Clauses 15, 16, 17 – Investigation and Enforcement powers of the Certification Officer (CO) – these clauses give a hat-trick of powers to the CO (a civil servant, no less) to instigate, investigate, and adjudicate (where they could previously only investigate complaints at the instigation of a trade union member themselves) suspected failures to comply with ‘relevant obligations’ listed in Schedule 1.

The Commission did not mince its words over this provision, which ‘compromises the impartiality of the CO and therefore raises substantive concerns about compliance with Article 6’ (right to a fair trial).

Whether the Bill will survive in its current form remains to be seen.

Other News

• Criminal proceedings against the late peer Lord Janner have been officially dropped, the BBC reports. A trial of the facts was due to be heard in April 2016, yet Lord Janner died in December last year. Assorted outrage had been prompted recently (see here, here and here) by some mysterious murmurings made by the CPS about continuing with the proceedings death notwithstanding. However, Mr Justice Openshaw said quite unequivocally in the Old Bailey last week, ‘that’s the end of the proceedings, the defendant is dead.’ Meanwhile, the Goddard Enquiry will resume its enquiries into care homes and public bodies who failed to protect children from sexual abuse.

• The Shaw Review into the Detention of Vulnerable Persons was published last week, and according to Liberty ‘delivers a serious blow to an immigration detention system creaking under the strain of widespread condemnation’. The Review finds that there is too much detention, and detention is not a particularly effective way to ensure that those with no right to remain do in fact leave the UK. Furthermore, detention undermines welfare, contributes to vulnerability, has a negative impact on mental health, and should be reduced ‘bodly and without delay’.

• Following the BBC Panorama investigation exposing child abuse in G4S-run Medway prison, five men have been arrested and bailed, the BBC reports. Four of the men were arrested on suspicion of child neglect, and the fifth on suspicion of assault. Undercover cameras were sent into the young offenders centre in Kent and recorded footage beyond the reach of the usual CCTV cameras of deliberate cruelty against children. Frances Crook of the Howard League has called for its closure, saying that their legal team have dealt with numerous concerns raised by young people at Medway since at least 2008, as well as from adults detained there as children.

In the Courts

• Bărbulescu v Romania – an employer’s decision to terminate a Romanian national’s contract for using a professional Yahoo Messenger account to send personal messages to his fiancé and brother did not breach his Article 8 right to respect for family life and correspondence. The employer’s internal regulations bestowed a general prohibition on using work computers for personal communication, in view of which the question for the court was whether Mr Bărbulescu had a ‘reasonable expectation’ that his account would not be monitored. It was found that there was no violation of his right to privacy because the employer’s monitoring of his communications had been reasonable in the context of disciplinary proceedings.  Despite being widely reported in the UK press as allowing bosses to snoop on your emails, this case is not binding on UK courts. See previous blog post in more detail here.

• Szabó and Vissy v Hungary – Hungarian legislation on secret anti-terrorist surveillance does not have sufficient safeguards against abuse and violates Article 8 (right to respect for private and family life, home and correspondence). Whilst the Court accepted that the fight against present-day terrorism requires governments to deploy cutting-edge technologies to pre-empt incidents, including the wide-spread monitoring of communications, the Court did not consider sufficient safeguards to be in place to avoid abuse. The measures were so wide-ranging that almost anyone in Hungary could be included by the provisions, and the Government were able to intercept vast amounts of data – all of which could be done with no assessment as to whether the inception was strictly necessary, and without any remedial measures in place.

Previous Posts

• Surveillance of Internet Usage in the Workplace
• Jeremy Hyam: mere negligence may breach Art 2 in NHS Hospital cases
• Court of Appeal: Immigration assessments and Merton