The Trade Union Act 2016 and the Failure of Human Rights

Abstract

Abstract The Trade Union Bill raised major concerns about freedom of association in particular and its compatibility with a number of treaty obligations, including notably, the European Convention on Human Rights, Article 11. Complaints were made to the International Labour Organisation, and the Parliamentary Joint Committee on Human Rights considered the Bill. This paper seeks to assess the extent to which such human rights considerations influenced the final text which became the Act. Our view is that, although the government made a number of notable concessions, these were informed more by political than by legal considerations. Despite the concessions, human rights concerns still remain. Our secondary aim in this paper is to consider some factors relevant to the possibility of a successful legal challenge based on those concerns. We think such a challenge unlikely for two reasons. Firstly, the concessions removed many of the substantive provisions most susceptible to a human rights challenge. Secondly, whilst the domestic courts have been reluctant to embrace Convention rights in trade union cases, the Strasbourg Court has recently been notably sympathetic to the British Government in Article 11 cases, carving out for this country an apparently protected position on freedom of association issues.