Tory trade union proposals will violate international law

Len McCluskey was right to ask whether unions can continue to stick to draconian new rules


‘Why is the strike, or, better perhaps, the potentiality of a strike, that is, of an event which of necessity entails a waste of resources, and damage to the economy, nevertheless by general consent an indispensable element of a democratic society?’

This question, raised in 1972 by the pioneering labour law academics Otto Kahn-Freund and Bob Hepple, should have been at the forefront of business secretary Sajid Javid’s mind when he made it a priority (in only his first day in the job) to deliver the Tory manifesto promise of “protecting the public from disruptive industrial action”.

However, it is unlikely Javid indulged in such intellectual enquiries when, in his own words, he considers it ‘fair, proportionate and sensible’ to make it more difficult for workers to go on strike.

Chief among the Conservatives’ proposed amendments is the introduction of a 40 per cent ballot threshold for strikes in essential public services. This measure, intended to tackle what the Tories believe is the ‘disproportionate impact of strikes in essential services’, specifically targets the health, education, fire, and transportation sectors.

There will also need to be a minimum 50 per cent turnout in strike ballots.

Finally, they plan to repeal the ‘nonsensical’ restrictions banning employers from hiring agency strike breakers.

As I have written in these pages previously, these proposals will undoubtedly violate the UK’s international law obligations. While the introduction of a quorum will not in itself breach international law, the cumulative effect of the UK’s restrictive labour laws certainly will.

The International Labour Organisation has already berated the UK on its balloting requirements for, among other things, having ‘laws on industrial action ballots and notices which are too complicated and rigid’. On restricting the right to strike in essential services, the ILO’s Committee on Freedom of Association has repeatedly stated that such action can only be permissible where the interruption of those services would endanger the life, personal safety or health of the population.

To that effect, the Committee has explicitly held that transport and education do not constitute essential services for the purposes of industrial action. Furthermore, the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term has been regarded by the Committee as a serious violation of freedom of association.

Interestingly, the government’s plan to scrap the Human Rights Act, which incorporates the European Convention on Human Rights into domestic law, is also relevant in this discussion. Following a 2008 decision, the European Court of Human Rights held, among other things, that deference should be given to the above-cited ILO jurisprudence and other international legal instruments when determining the rights covered in Article 11 (Freedom of Association) of the Convention.

With the new British Bill of Rights set to ‘break the formal link between British Courts and the European Court of Human Rights’, it is likely that individuals wanting to bring cases under the ECHR will have to go all the way to Strasbourg to do so. Even though the European Court of Human Rights recently sided with the government on a specific strike restriction, the denial of access to Convention rights locally is simply a further denial of justice.

Len McCluskey was right to ask whether unions can continue to make the commitment to stick, under any and all circumstances, within the law as it stands.

Trade union membership stood at 13 million in 1979, the year Margaret Thatcher started gradually introducing a string of anti-union laws. Today, there are roughly 6.5 million workers who are trade union members.

It is obvious that the restrictive strike laws played a part in this dramatic decline. If the Tories continue to have their way, what will union membership figures look like in 20 years?

There can only be one answer to McCluskey’s question.

Ruwan Subasinghe is a legal advisor for the International Transport Workers’ Federation (ITF). Follow him on Twitter

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34 Responses to “Tory trade union proposals will violate international law”

  1. CGR

    It was the democratic decision of the British people. The Tories have every right to implement their manifesto.

  2. johnontheleft

    If you consider 25% of the electorate voting Tory a democratic mandate, you must surely consider strikes, as they stand, also democratically mandated?

    More broadly, the Conservatives winning an election doesn’t suddenly mean those against them ought to stop complaining. Democracy isn’t every 5 years. Are you suggesting there should be no opposing voices to hold the government to account if they got the most votes? How bizarre…

  3. janlog

    I’d dispute it being a democratic decision to return this shower to parliament, and this was in their manifesto so nobody should be surprised. Although it seems they are pushing their manifesto thru with indecent haste.

  4. George Dibb

    Disregarding for a minute the question of whether or not they have a proper mandate. Just because something was in a winning party’s manifesto does not, by definition, mean it complies with international law. Based on your opinion, any party could write anything in their manifesto, regardless of international law or treaties, and it would be legitimate and legal. What if Argentina elected a party who put the forceable repatriation of the Falklands in their manifesto? Would a deadly invasion become legal?

  5. Robert

    Surely then labour should have done more to change those laws brought in by Thatcher you can hammer Thatcher all you like we had 13 years of labour.

    And if Unions want to be seen as working for the people they should move away from this labour party until it at least agree to look at union laws again

  6. madasafish

    Try a simple logic course.

    I can vote in a General Election.

    I can’t vote in a strike ballot.

  7. Notanotherjohnagain

    Democracy is broader than a simple election, and this is certainly in breach of democracy. I am really not sure what point is being made about Labour not reversing previous legislation for example secondary picketing. That also was pretty much in breach of the broad definition of democracy.

  8. Dark_Heart_of_Toryland

    No, it was the undemocratic decision of the 25% of the British electorate who voted Tory – an election which certainly would not pass muster under the Tories’ proposed legislation.

  9. Dark_Heart_of_Toryland

    That’s a non-sequitur, not logic.

  10. stevep

    The labour government of 1964-1970 wanted to tighten up strike legislation and restrict unions. The white paper Barbara Castle had drawn up in 1969 titled “In place of strife” would have required unions to hold strike ballots. It didn`t make it to law but was certainly an inspiration for the Tory/Tebbit anti-union legislation of the early 1980`s. The Blair government, with it`s huge majority could have reversed this legislation had it chosen to do so. It didn`t. The refusal to back the Liverpool dock strike was an early warning sign of thing to come. The only recourse a working person has, in the face of powerful intransigent employers, is to collectively withdraw their labour. It is the only language these backward employers understand and this is why governments of all colours are lobbied to keep adequate legislation in place to prevent it occurring.
    For a Labour government to back such employers over the movement that mostly formed and sustains it seems to me to be a case of the dog biting the hand that feeds it.
    The Labour party doesn`t seem to understand that millions of ordinary people willed the Tory years of the `80s and `90s to end and that the jubilation of Blair`s victory turned into disappointment with the growing realisation that little was going to change. Whole sections of the UK have rejected Labour because of this. It is not about winning at any cost, it is about engaging with the issues that every worker has to face between the hours of clocking in and clocking off and recognising that most people only want to strike as a last resort, when all else has failed.
    I think the vast majority of the UK population are crying out for better democracy and a level of fairness, decency and prudent economics that would sustain them throughout their lives. It`s just that, at this moment in time , they can`t see it being delivered by a Labour government.
    The Labour party needs to consider it`s very being. Other parties such as the Greens offer far more socially and environmentally aware manifestos and are striking a chord within the UK public, The SNP is it`s own success story. The left is becoming fragmented. If we need to find common ground to win an election, then so be it.
    When we win elections, reclaim the narrative and start to re-enfranchise working people, union membership will rise.

  11. James Chilton

    The Tory party doesn’t have an ideology in the sense of have a coherent system of action-guiding beliefs. They simply have a collection of sentiments that are averse to redistribution and a disposition to avoid change.

  12. Harold

    Why can you not? Police and armed forces cannot but is there another reason?

  13. SadButMadLad

    You do realise the same argument could be used against a Labour democratic mandate, or lack of one.

    A free country does mean that people can complain as much as they want about the government. Unions don’t tend to allow complaints about their governance to be aired, you tend to get kicked out or get a stern talking to from the local shop steward at the very least you get called a scab and you have no friends any more.

  14. Patrick Nelson

    This country needs some form of proportional representation so that the particular minority that ends up with most parliamentary seats can’t hold the rest of the country to ransom and push through controversial legislation such as is the habit of the Conservative party.

  15. Patrick Nelson

    This is in many ways a perfect description of the current Tories, something like a political virus or election winning machine, which long ago lost both its actual Tory and its actual Conservative political dna, and is in fact now a party utterly radical in its support of a small section of society against the interests of the rest.

  16. Wild_Bird

    Scott Walker is awesome. Hope he becomes president of the United States.

  17. Faerieson

    Different thresholds for different sections of ‘society?’ A week in and already the UK has lost it’s grasp upon the concept of democracy. Travel down this route and we’ll soon find out that ‘rights’ are very much an abstraction, to be viewed from afar.

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  19. JoeDM

    Yep. The Trade Unions are part of the problem not the solution.

  20. blarg1987

    Well by your own logic you can’t vote on who maintains the utilities to your property or in PLC’s unless your a shareholder.

  21. blarg1987

    I wonder would the Conservative government extend this proposal to PLC’s when it comes to CEO’s remunerations which by the way are not legally binding, if the answer is no then this policy is untenable.

    Can LFF please raise this question to the relevant parties as if they said no, they would loose any public support, and if they said yes they would loose large amounts of financial support.

  22. ROGER.

    I doubt if a lot of tory voters realise the full implications of what they voted for.

  23. Cole

    That’s apparently what the Tories think. They hate them and want to put them out of business – never mind that they represent 6 million people. It’s happening in other countries too. In the US the right are having a jihad against unions,

  24. Cole

    You’d do away with roses silly arguments if you have a democratic voting system where a minority – Labour, Tory, whatever – ludicrously claim a ‘mandate’ with well under 40% of the vote.

  25. AThompsonMK

    You can vote if you’re a member, and any worker has the right to join a union.

    Regardless, the argument regarding turnout and democracy is a simple one. 25% of the electorate voted for the Conservatives, yet 100% of the electorate must live with their majority government. While if 100% of union members vote for strike action, not a single worker has to strike…it’s an individual choice regardless of the result of a ballot. All the ballot does is allow us the right to strike.

  26. gs81

    By what evidence do you suggest that? The strongest economy in Europe, Germany, also has the strongest trade unions. In fact it’s common place for the union members in German companies to have a representative on the board of directors.

  27. WhiteVanMan

    Have to question whether Thatcher democratizing unions were anti Union laws, surely for a union to be their to negotiate it has to be for members interests,which is what democracy is

    saying that tories who got less than40% of the vote in their constituencies shouldn’t vote for the law 40% turnouts, for yes votes, or union strike ballots aren’t legit, as they’ve got less than the amount,in elections,as the number they suggest unions strike votes need,
    Overlook the fact in general elections there’s more than 2 candidates, so , getting 40% of a turnout,and the majority of votes is different to strike votes as there’s in,y 2 options on do you want to strike YES or NO

  28. gunnerbear

    “On restricting the right to strike in essential services, the ILO’s Committee on Freedom of Association has repeatedly stated that such action can only be permissible where the interruption of those services would endanger the life, personal safety or health of the population.” So that would be in the Police Service, the Fire Service and NHS then along with the railways that move so many of the aforementioned professionals to and from their place of work – glad the author agrees with the proposals.

  29. gunnerbear

    Yes…but German TUs don’t strike at the drop of a hat and are very socially conservative in terms of how to become a ‘professional’ and German TUs act swiftly and decisively if their members drop below expected professional standards. Not the same thing as a British TU at all and in Germany the TU movement is becoming ever more fragmented. As to putting workers on to boards – that had noting to do with workers rights but everything to do with dispersing centres of power as widely as possibly through the new West Germany for reasons I’m sure are clear and additionally the Germans knew that co-operation was the only way to get Germany working again.

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  32. Dysarthria Poet

    The only reason the Tories got into power was that a great many people did not understand what they would do. People did not do their homework before voting for them.

  33. Scotty

    Given that the Tories were elected by a minority and not a full electoral turnout there is an anomaly here. This will lead only to a disintegration of worker’s pay and conditions which is what the Tories want. Further it would seem that they are trying to undermine the Labour Party’s funding base and thus weaken their main opposition. Are they also trying to crackdown on worker’s discussions on the internet by introducing a system of heavy financial penalties? Is this the advent of a one party state in Britain and a slide to right wing fascism? I’m inclined to think so.

  34. Scotty

    If it were not for trades unions, workers would not even get paid or only if the boss felt like it. The Tories want your pound of flesh for zero.

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