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Examination of Witness

Trade Union Bill – in a Public Bill Committee on 15th October 2015.

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Professor Keith Ewing gave evidence.

Photo of Alan Meale Alan Meale Labour, Mansfield 2:00 pm, 15th October 2015

We will now hear oral evidence from Professor Keith Ewing, professor of public law at King’s College London. This session will run until 2.30 pm. Professor Ewing, could I just outline how we are going to play this? I will ask you to introduce yourself and outline why you are here. It will then become a hearing, with Members from alternate sides asking you questions. Could you be as succinct as possible? I would urge my colleagues to do the same, but it does not always work that way. Remember that the time you are using is the only time you have, so use it well, if you can. Would you care to introduce yourself?

Professor Ewing: My name is Keith Ewing. I am a professor of public law at King’s College London.

Q 337337

Photo of Stephen Doughty Stephen Doughty Shadow Minister (Business, Innovation and Skills)

Professor Ewing, could you set out in a little more detail your experience working on issues around trade union law at a domestic and international level?

Professor Ewing: In terms of my experience?

Photo of Stephen Doughty Stephen Doughty Shadow Minister (Business, Innovation and Skills)

Yes. Your experience, background and qualifications.

Professor Ewing: I have been professor of public law at King’s College since 1989. Before that, I taught at the University of Edinburgh and at Cambridge. I have taught overseas in many countries. I have worked as an adviser to a number of trade unions, both in this country and overseas. I have worked as an adviser to the International Trade Union Confederation. I do a lot of work with the International Labour Organisation in terms of evidence that I prepare and cases that I help to submit. I work very, very closely, I suppose, with the trade union movement.

Q 338

Photo of Stephen Doughty Stephen Doughty Shadow Minister (Business, Innovation and Skills)

Thank you. That is very helpful. Given that level of experience, and looking at the Bill as a whole, where do you feel it falls down or potentially conflicts with both international and domestic conventions and law?

Professor Ewing: I have two concerns with the Bill. The first is the extent to which it is compatible with our treaty obligations. The second, because of my other interest, is the extent to which it is compatible with the constitutional principles, conventions and practices that operate in this country.

As far as the first of those is concerned—international labour treaty obligations—there are a large number of treaty obligations binding this country that relate directly to the provisions of the Bill. I will start with the International Labour Organisation. There are three treaties that are particularly relevant and are binding on this country: conventions 87, 98 and 151. I can go into some detail, if you would like.

Q 339

Photo of Stephen Doughty Stephen Doughty Shadow Minister (Business, Innovation and Skills)

Can you expand a little on where you feel the Bill conflicts with those?

Professor Ewing: Convention 87 is relevant because it deals with the right to strike. The right to strike is not expressly referred to in convention 87, but it has been read into convention 87 by the supervisory bodies over a number of years. One issue that I think arises in relation to the right to strike is the additional requirement of two weeks’ strike notice. There are lights flashing in my head about that. The second issue relates to the thresholds for industrial action, and in particular the 40% threshold for support for industrial action in some sectors. That, too, is beginning to make lights flash in my head about the compatibility with ILO convention 87.

There are two other conventions: 98 and 151, which deal with the question of collective bargaining. Convention 98 applies to collective bargaining generally, and 151 deals specifically with collective bargaining in the public sector. One reason I think there might be problems here relates to the Minister’s announcement after the Bill was published about abolishing check-off in the public sector. I think that will cut across collective agreements and raise questions in relation to 98 and 151.

Another point relates to trade union facility time and the provisions in the Bill, which will give a Minister the right to rewrite collective agreements. That cuts across the idea of collective agreements being voluntary and runs into problems with 98 and 151.

Before I finish, there is the good question of why we should take the conventions seriously. There are two reasons. First, although people were quite indifferent to ILO obligations in the past, the European Court of Human Rights has, since 2008 in particular, begun to pay particular attention to the importance of the conventions in determining the scope and boundaries of the European convention on human rights itself. There was a very important case to that effect in 2008.

Secondly, we are reaffirming our vows to the conventions in the free trade treaties that we are now signing. We signed such an agreement with Korea in 2010, and we are about to sign a free trade agreement with Canada. In these treaties, we commit ourselves not only through the European Union, but as a member state to complying with the international labour obligations to which we have subscribed. The conventions are very important.

Q 340

Photo of Stephen Doughty Stephen Doughty Shadow Minister (Business, Innovation and Skills)

May I ask a specific question about the certification officer? The Bill’s proposals amount to an extensive expansion of the role. We have heard from other witnesses that there is potentially a serious blurring here between the investigating, adjudicating and enforcing of complaints. Does that breach international conventions or domestic principles about natural justice and not blurring such roles in a quasi-judicial position?

Professor Ewing: The certification officer provisions are extremely serious. I say that partly because we have to bear in mind who appoints the certification officer.  Under the 1992 Act, the appointment of the certification officer is in the gift of the Minister, so the Secretary of State effectively appoints the certification officer. You referred to powers of investigation, which are deeply troubling because, in a sense, they give the certification officer this extraordinary power where he thinks there is good reason to do so. That is the test. It is where the certification officer thinks there is good reason to do so. They can then embark upon this extraordinary power of investigation to demand documents, to require individuals to co-operate and to require the attendance of individuals at a particular location. The certification officer then has the power to demand that—[Interruption.]

Sitting suspended.

On resuming—

Photo of Alan Meale Alan Meale Labour, Mansfield

Professor Ewing, I apologise for that interruption. Sometimes technology is to blame. One of the first things people do when they get downstairs and outside is light up a cigarette and that can be a bit of a problem. Mr Doughty, would you like to continue?

Photo of Stephen Doughty Stephen Doughty Shadow Minister (Business, Innovation and Skills)

Thank you, Sir Alan. I also apologise for the disruption. Sir Alan, I hope with your agreement it will be okay if we need to go on a few minutes longer.

Photo of Alan Meale Alan Meale Labour, Mansfield

I have had a word with Professor Ewing and he says he might be able to finish in the timescale set, but if we cannot, we will continue.

Q 341

Photo of Stephen Doughty Stephen Doughty Shadow Minister (Business, Innovation and Skills)

Thank you, Sir Alan. Professor Ewing, we were talking about the certification officer. Recalling what you were saying, essentially you are worried that a Minister—a member of the Executive—will appoint an individual who is effectively police, judge, jury and executioner with some fairly wide-ranging powers.

Professor Ewing: Let me say, I hope it was not anything I said that led to the disturbance.

My concern with the Bill is, first, these very extensive powers of investigation, which could eventually lead to someone to being imprisoned for non-compliance. What would worry me is what would trigger that process. What triggers the process is the suggestion that the certification officer can take these steps where he thinks there is good reason to do so. Given the nature of the power that has been given to the certification officer, you would be looking for much a higher threshold before powers of that kind could be triggered.

That is the power of investigation, but there is also the power of adjudication, which has been greatly expanded under, I think, what is now schedule 2. The issue is that the certification officer can initiate a complaint, so in a sense he is the complainant. The certification officer as a complainant will bring his or her own witnesses, cross-examine his or her own witnesses and then make a decision in his or her own cause. They will then have a new power to impose a financial penalty.

That seems to me to be a violation of fundamental principles of natural justice, which apply in this case and I refer to in my written submission: fundamental principles of justice rehearsed by Lord Chief Justices as  far back as the 1920s. It would certainly contravene the well-established principle of English and Scots law that no one should be a judge in his or her own cause. I think that provision needs to be looked at very carefully again.

Q 342

Photo of Rishi Sunak Rishi Sunak Conservative, Richmond (Yorks)

Thank you, Professor, for being here. I want to ask you about thresholds and that part of the Bill. I am obviously not a legal expert on rights, but I think what the threshold provision is trying to do is balance the right to strike—which certainly no one is saying should not exist—with the right of people to go about their ordinary business, send their kids to school, use the trains and tubes, gain access to hospitals and so on. That balancing seems moderate and reasonable. Do you think any weight should be given to the rights of people to go about their ordinary business? Do you agree with the general secretary of the Unite union who, you may have read, has said in principle that he can agree with the idea of thresholds and time-limiting ballots?

Professor Ewing: I do not want to intrude into these very sensitive debates. Whether or not it is moderate or reasonable, I would ask whether it is lawful. That would take me back to the ILO conventions that I referred to earlier—in particular, ILO convention 87—and there to the jurisprudence of the supervisory bodies that emphasise two points.

One is that we should be counting the votes of only those people who vote in strike ballots. If you do not vote, in a sense, you do not count for these purposes. Secondly, when we get to questions of thresholds, the ILO supervisory bodies have said, in a long line and expanding group of cases, that any threshold has to be reasonable. On the question of what is reasonable, what they have said so far is that a threshold of 50% of those eligible to vote is not reasonable. The Bill pitches that at a bit less—at 40%—and the question is, is 40% reasonable?

In determining whether 40% is reasonable or not, I think you have got to take into account the voting methods. The problem with the 40% threshold in the context of the legal framework within which it will be dropped is that it will be dropped into a very rigid system of voting. And if you are going to make an argument for thresholds, I think you have got to be a bit more relaxed about the way in which people go about voting. To have mandatory postal balloting is, I think, probably excessive, too rigid and does not apply elsewhere.

Q 343

Photo of Rishi Sunak Rishi Sunak Conservative, Richmond (Yorks)

Thank you for that. Just so that we are clear, I understand your concerns about the details on how voting works, but in principle you think that the idea of a threshold is fine.

Professor Ewing: No, no, you are putting words into my mouth. My starting point would be the principle of freedom of association. My starting point as a result is that it must be ultimately for trade unions to decide their own internal methods of governance and their own relationships with their members.

If we are going to intrude into that principle of freedom of association that we have subscribed to as a nation, there has to be some compelling reason to do so. That compelling reason has to be compatible with our international legal obligations, and I think there are serious doubts about whether the threshold we are about to introduce will be compatible with the requirements of ILO convention 87.

Q 344

Photo of Rishi Sunak Rishi Sunak Conservative, Richmond (Yorks)

In your opinion, but the ILO convention does accept the principle of a threshold.

Professor Ewing: Well, the ILO supervisory bodies have said that if you introduce a threshold, it has to be reasonable. What I am saying to you is that a 40% threshold in my view is too high in the context of the very rigid voting system we have in this country.

Q 345

Photo of Rishi Sunak Rishi Sunak Conservative, Richmond (Yorks)

I understand, but there is no opposition to the threshold in principle under the convention.

Professor Ewing: Well, the ILO bodies are very unclear. In a sense, they say, “If you have a threshold, it’s got to be reasonable,” but they also say, “You should only be counting people who vote.”

Q 346

Photo of Chris Stephens Chris Stephens Scottish National Party, Glasgow South West

Professor Ewing, in relation to the devolved Administrations, what impact will the Bill have on both their policies and criminal or civil law?

Professor Ewing: This is going to be a really difficult question in the months ahead. The issue here particularly for Scotland is the proposals on the check-off and the powers in relation to facility time—the duty on public bodies to publish facility time arrangements. I think there are two problems here. One is a question of whether these provisions fall within the reserved powers of the Westminster Parliament.

I am sure that a lot of people are taking advice—legal or otherwise—about this at the moment, but I am not sure if the check-off provisions would satisfy the requirement that they fall within the reserved powers of the Westminster legislature and there are lots of reasons why that might be the case. I would hope that the Scottish Parliament will have an opportunity to think about and comment on this question. But, at the end of the day, this is a sovereign legislature and you can push through whatever legislation you think appropriate, whether or not it is incompatible with the devolution settlement. I have doubts about whether all of this package will be compatible with the devolution settlement, but I have no doubt that you have the right to push it through, despite the incompatibility.

The problem that I think will come will not necessarily be a legal one. The problem will be a very severe political problem in the future. The problem will be if a Scottish public body decides, “We are not going to comply with this ban on the check-off,” or “We are not going to publish the facility time arrangements that we give to trade union representatives.” What will happen at that point? We are looking at the question of who will enforce those obligations against Scottish public bodies. Are we really saying that the Secretary of State for Scotland will bring a case against a major Scottish public authority to enforce those obligations? The Government are walking, almost blindfolded, into a major constitutional crisis around the Bill. That constitutional crisis could be as explosive for this Government as the poll tax was for the Thatcher Government in the late 1980s and early 1990s. This is a big, big problem, and I am not sure that people have really thought through the consequences.

Q 347

Photo of Chris Stephens Chris Stephens Scottish National Party, Glasgow South West

One last question on the thresholds. Do you think that there are also gender equality issues, where in workplaces a majority of women workers  might not be able to go on strike because a shift change would impact on them more than it would on male workers?

Professor Ewing: That is a good point, which I had not thought of, and it is something that I would like to think about before coming back to you. I am happy to address the Committee on that point, but I would like to think about it first.

Q 348

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

You talked about the ILO conventions. A great deal of your report is concerned with ECHR conventions, and I accept you cannot mention everything in your brief summary today, but would you accept that as recently as last year, the European Court acknowledged that it was legitimate for the Government to legislate to impose some constraints on article 11? Would you accept that there is a wide margin of appreciation for the Government in the way that this can be handled?

Professor Ewing: Are we talking about the RMT case?

Professor Ewing: Yes, the British Government won in that case, but what I would say to you is that that case was really quite eccentric. There have been five or six decisions on article 11, specifically in relation to the right to strike, since April 2009, and the only case in which the Court has held in favour of the Government is the RMT case involving the United Kingdom. If I were the Government here, I would not be feeling very complacent or comfortable about that decision, because we have got cases from Croatia, Ukraine, Turkey and Russia in which the Court has said that the right to strike is protected and restrictions have to be justified. That case on its facts accepted that the restrictions could be justified, but you cannot conclude from that that all restrictions will be justified.

Q 349

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

No, no, and I do not think that anybody on the Government side would disagree that the right to strike should be protected and that restrictions should be justified. That is absolutely the Government’s position. Let me turn it around. Are there any cases that support your view that it is not legitimate for the Government to make proportionate restrictions under article 11?

Professor Ewing: It is quite difficult to answer that question directly, because every case is different. In this case, whatever the challenge is under the convention to this legislation, first, it is not clear yet what the challenge will be, and it will be a strategic question for trade unions to consider which will be the best way in to attack the legislation, I imagine; and, secondly, when the challenge takes place it will also be informed by the influence of other treaty obligations. The European convention is not an island that sits on its own. We have regard to the decisions of the Social Rights Committee of the Council of Europe, which has also expressed criticism about our existing law. We will have regard to ILO supervisory bodies and their views on it. That will help to construct the case, so at this stage, it is hard to know what the case will be. We have got pointers as to what it might be, but the case will have to be built. I guess a very careful case will be built in order to learn from the lessons of the RMT case.

Q 350

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

Okay. Can we move on to certification officers? I am thinking about the type of person who is a certification officer. It tends to be an Employment Appeal Tribunal judge or people of that type. Do you really feel it is unreasonable for others with a legitimate cause for complaint, because of the results of industrial action, to encourage the beginning of an investigatory process?

Professor Ewing: The certification officer is not a judge. The existing officer is a solicitor or partner in a law firm. Previous officers, I think, were former civil servants who did not have legal qualifications. You are telling me something I did not know, in the sense that the certification officer’s powers are going to be triggered by complaints made to him.

Q 351

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

No, I am just suggesting that is one type of person who might feel—

Professor Ewing: Are you thinking about employers who might use the certification officer as a kind of surrogate rather than going directly to court?

Q 352

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

More someone with a legitimate cause for complaint—someone who is affected by strike action.

Professor Ewing: Looking at the powers in schedule 2, we are talking about provisions relating to trade union elections, trade union expenditure and trade union amalgamations. This is about the internal affairs of the union, principally. If employers or whoever have a problem with strike ballots or whatever, they already have a remedy by way of complaint to the ordinary courts, which would be much quicker.

Q 353

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

I do not want to go on too long, but I was not thinking of employers; I was thinking more of those who are affected by the results of strike action.

Professor Ewing: I am not sure how they would have access to the CO.

Q 354

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

The certification officer himself might be able to take a view that it was appropriate to investigate non-compliance.

Professor Ewing: Non-compliance with what, in the case of a strike?

Q 355

Photo of Victoria Prentis Victoria Prentis Conservative, Banbury

His job is to investigate non-compliance.

Professor Ewing: Yes, but only with specific obligations. If you look at page 16, the obligations to which the investigatory powers apply are listed in paragraph 1(a) to (h). They do not seem to apply to industrial action. The powers in schedule 2 are to make complaints against a union that he himself will adjudicate. These are powers that relate to the internal affairs and government of the union, so I do not know where the power you refer to arises. This was a power we used to have from the last regime, but I thought it had gone.

Photo of Alan Meale Alan Meale Labour, Mansfield

Professor Ewing, thank you very much. You have been very helpful indeed. We will now move on to the next panel.