The Law and Social Rights

Keith Ewing
Keith Ewing argues that social and economic rights, especially for trade unions, need to be protected by statute. In addition, it should be Parliament, not the law courts, that is the guardian of these rights.

From Soundings issue 2 spring 1996

David Wilson is a journalist who was employed by the Daily Mail. In 1989 the employer decided to terminate the collective bargaining arrangements then in force and invited all those employed under the collectively agreed terms to sign what are sometimes referred to as 'personal contracts'. Those who agreed to the personal contracts were given a 4-5 per cent backdated pay increase while those who did not remained employed on the terms and conditions in force when the collective bargaining arrangements were terminated. As a senior trade union representative at the Daily Mail, Mr Wilson refused to accept the new terms and so did not qualify for the increase. The simple question which these simple facts presented was whether the employer had done anything unlawful in discriminating against Mr Wilson?
An industrial tribunal held that the employer had acted unlawfully, but this was reversed by the Employment Appeal Tribunal which in turn was reversed by the Court of Appeal, the original decision thereby being restored. But before the appeal could be heard by the House of Lords the government intervened, in May 1993, with a late amendment to the Trade Union Reform and Employment Rights Bill authorising employers to discriminate against trade unionists in the way of the Daily Mail. The House of Lords was later to reveal that the government's indecent haste was uncalled for; reversing the Court of Appeal it was unanimously held that the current statutory protection against discrimination on the grounds of trade union membership does not apply to the conduct of the employer in this case. The employer was concerned not by membership of the union but only by a desire to get rid of collective bargaining.
There are many who would see this distinction as mere sophistry, based on an impossibly narrow perception of the statutory protection of trade union membership. Essentially, the House of Lords was saying that people are protected in being in association with others but not if they seek to enjoy the benefits or services of the association. Other distinctions drawn by the House of Lords would be treated with equal disdain, including in particular the holding that the discrimination against Mr Wilson was an omission which did not constitute 'action' against him as the statute required, an aspect of the decision which was all the more puzzling for the fact that the Act expressly states that 'action' includes 'omission' (unless the context otherwise requires). It was of no comfort to Mr Wilson that the unanimous decision of the Lords was taken 'with regret' by at least one of them.

The erosion of trade union rights
The Wilson case raises many awkward questions. The most obvious relates to the performance of the judges. This was a court which included two past presidents of the Employment Appeal Tribunal, people with some experience of labour law. It was a decision taken with at least one of its members knowing that it would leave 'an undesirable lacuna in the legislation protecting employees against victimisation'. And it was a decision reached only by reversing the Court of Appeal below. The other question raised by the case relates to the statutory framework of workers' rights. Not only does it raise the issue of the narrow drafting of the protection against discrimination. Even more importantly, it highlights the absence of any provision preventing employers from derecognising a trade union, the decision which set in motion the events which led to the House of Lords decision. Perhaps more that anything else the importance of the Wilson case lies in this highlighting of the consequences of the lack of a legally underwritten guarantee of the employees' right to a collective voice at work.
In this respect the case reveals a more general concern about the erosion of social and economic rights in this country since 1979, as successive Tory governments have moved gradually to dismantle the structure built up carefully in the 1970s. Although gradual the change has been relentless. An average of one major piece of legislation has been introduced every two years, and further restrictions have been introduced by secondary legislation, or, as in the case of the trade union ban at GCHQ, under the royal prerogative. These measures have attacked along two broad fronts, with the first serving to deregulate the basic employment protection standards, and the second to withdraw the rights of trade unions. So far as the former is concerned we have seen the abolition of the wages councils which set minimum conditions for the most vulnerable workers, and we have seen also the extension of the qualifying period for the bringing of an unfair dismissal action, from 6 months to two years, arguably the most cruel of a number of measures which invite that sobriquet.
In the area of trade union rights, we have seen the removal of a number of measures introduced to underpin by legislation the process of collective bargaining. We have seen also the introduction of a number of wide ranging restrictions on the operation of the right to strike; the combined effect of these is to make it very difficult for trade unions to organise industrial action within the law. The purposes for which industrial action may be taken have been significantly narrowed; the tactics which might be employed in the course of a dispute have been reduced by restoring liability for secondary and sympathy action; and a complex framework of highly prescriptive procedural obligations has been imposed requiring both mandatory postal ballots (at the unions' expense), and the giving of various forms to notice to the employer. Even where these formalities are met strikers may still be dismissed by the employer, though non strikers may not be expelled from the union.
These great legal changes have accompanied equally momentous social and economic changes in Britain since 1979. Indeed it may well be that the legal changes contributed to these other developments. For example, we can point to a significant decline in the levels of trade union membership and collective bargaining density, with only 1 in 3 workers now thought to be unionised, and with less than half of the labour force now covered by collective bargaining. These figures compare with a level of trade union density of about 62 per cent in 1980, and a level of collective bargaining (and wages council order) coverage in excess of 80 per cent at about the same time. Although other countries have also seen a decline in the level of trade union influence there are few countries where this has been as marked as in Britain. Subject to the terms of employment protection legislation it means that most workers must now depend on their own personal bargaining power as a guarantee against unfairness at work.
Alongside the decline in the levels of trade union and collective bargaining density, we can point also to an unprecedented increase in levels of income inequality and job insecurity. Indeed it was estimated by the Rowntree Inquiry into Income and Wealth earlier this year that the increase in income inequality since 1977 grew faster in Britain that in any other OECD country with the exception of New Zealand. As the Institute of Employment Rights points out in Just the Job?, a consultation paper on the future of employment law issued earlier this year, this rise in inequality of incomes, together with cuts in social security, has contributed to an increase in household poverty. Job insecurity is clearly much more difficult to measure, but it has been estimated by Cambridge economists that there are now some 9 million disadvantaged workers in this country, that is to say people without secure or well paid employment, living as a result in either insecurity or comparative poverty. Indeed this is thought to account for as many as 30 per cent of British workers.

Possible codes of social and economic rights
A good starting point for any progressive policies for the future is to look at the international treaties to which this and other countries are parties - legacies of a bygone era. Perhaps the most significant of these are not the treaties of the EC or EU, but those of the International Labour Organisation, a UN agency of which this country is a member, and which by its constitution is committed to the realisation of a number of social goals.
These include full employment and the raising of standards of living; the ILO is also committed to 'policies in regard to wages and earnings, hours and other conditions of work calculated to ensure a just share of the fruits of progress to all, and a minimum living wage to all employed and in need of such protection'; and to the 'effective recognition of the right to collective bargaining', and to the 'co-operation of management and labour in the continuous improvement of productive efficiency'.
The constitutional objectives of the ILO have been translated into 176 Conventions and 183 Recommendations. Many of these have been ratified or adopted by United Kingdom governments, including the two most fundamental treaties of the ILO, namely Conventions 87 and 98 which deal respectively with Freedom of Association and the Right to Organise, and the Right to Organise and Collective Bargaining. It is the breach of these measures in particular which has brought Britain to the edge of international shame: it is the recommendation of the supervisory agencies based in Geneva that much (though not all) of the legislation of Tory governments passed since 1980 violates the guarantees of these fundamental texts. This is true, for example, of the trade union ban at GCHQ, many of the restrictions which have been imposed on the right to strike, and much of the legislation interfering with the autonomy of trade union government. Remarkably the Government has done nothing to fall into line behind the judgment of its international peers and continues to defy the rule of international law.
At a time of vibrant debate about constitutional reform it behoves us to consider the extent to which social and economic rights, of which the ILO Constitution and Conventions are singular examples, can be brought within the framework of any new constitutional settlement. Although there is quite rightly concern about the need for the better protection of civil and political liberties, social and economic rights have in practice been shown to be more vulnerable to erosion and more in need of protection. Indeed one of the great unfulfilled promises of the twentieth century has been to secure the implementation of the type of programme crystalised in the ILO Constitution. So while there may be a case for protecting important liberal values such as freedom of speech and assembly, it is also important that the state recognises its obligations to all of its citizens in terms of their social and economic welfare.
The question which then arises, however, is whether there is a role for formal legal measures to entrench or recognise these rights. Or does social and economic progress depend on the development of social forces which constitutions and legislation are powerless to mould? There are few who would defend such a position, and fewer still who would argue that progress can happen only when changes have taken place in the economic structure of society. There is no alternative - and there never has been - here or elsewhere in western Europe, to seeking to embrace, adopt and employ the constitutional machinery of the state for the purpose of promoting social and economic progress. Indeed to deny that change can be directed by the juridical and political superstructure would be to deny the legitimacy of the ILO, and to undermine the work of those campaigning to expand the social constitution of the European Union.
So where do we go from here? The answer depends on how far constitutional reform is to be taken. If, however, it is proposed to incorporate the European Convention on Human Rights into domestic law as a restraint on the power of Parliament, there is no justification for doing so in isolation, and without also incorporating parallel texts, such as the Council of Europe's Social Charter of 1961. Similarly, if it is proposed to have a distinctively British Bill of Rights there is no reason why it should be confined to civil and political liberties, and should not also include social and economic rights including for example the right to a minimum wage, to a safe and healthy working environment, and to protection from unfair treatment at work. There is also no reason why it would not include the right to form and join trade unions, the right of a trade union to be recognised by an employer in accordance with procedures laid down by law, and the right to strike in accordance with restrictions or limitations laid down by law.

Problems of enforcement
It is one thing to contemplate the possibility of the entrenchment of certain documents, or of certain rights, as part of a tailor made document; it is another matter altogether to contemplate the possibility of the enforcement of such measures. Civil and political rights are relatively easy to deal with in the sense that, if you have the money it is usually pretty straightforward to be able to challenge a government decision, for example on the ground that it violates the right to freedom of expression. But social and economic rights are different. The party violating the rights is not usually the government, but an employer in the private sector. There is, however, no reason why this should be an impediment, for the constitution need not be confined to the relationship between the citizen and the state, but may also address certain relations between individuals and groups within the community. However, there do exist two main problems for the enforcement of social and economic rights through the judiciary.
The first problem is the nature of the judiciary: the courts have been a major problem with regard to the delivery of social justice. An indication of why we should continue to be cautious was provided in the landmark GCHQ case, when the civil service unions challenged the decision of the responsible minister in the courts, after having convinced the ILO's Freedom of Association Committee (the appropriate supervisory body) that the ban by the Government violated ILO Convention 87. This provides that workers, 'without distinction whatsoever', have the right to establish and join trade unions of their own choosing without prior authorisation. In the proceedings before the domestic courts one of the issues which arose for consideration was whether the government's conduct could be said to be irrational because of its failure to comply with international labour standards. The Court of Appeal not only answered in the negative, but in an extraordinary example of forensic arrogance also held that there was no breach of Convention 87, notwithstanding the view expressed by the Freedom of Association Committee to the contrary.
This case is relevant because this is the type of document that we would be asking the courts to protect were we to constitutionalise social and economic rights. The courts, predictably, got it wrong, even though the correct answer had already been provided for them. They consciously chose to ignore the correct answer, by indulging themselves in a very literal interpretation of the treaty, in a manner appropriate for the interpretation of a tax statute. This is not to say that the courts are always on the side of the Government. We can now point to some great and creative decisions of the senior courts, especially in the area of equal opportunities law. For example, moulding the language of the Treaty of Rome and Directives made thereunder, the House of Lords swept away the exclusion of part-time workers from unfair dismissal and redundancy payments, and the Court of Appeal has also ruled against the qualifying periods for both. The fate of David Wilson is, however, a timely reminder that the leopard has not changed its spots, the House of Lords in that case being willing to reverse the decision of the Court of Appeal, despite the acknowledgement that it could thereby leave union activists exposed to the risk of victimisation.
The second problem with judicial review as a method of entrenchment is the question of constitutional principle. Although it is increasingly heretical to say so in the new liberal age, the principle of parliamentary sovereignty is an important principle of constitutional law which should not be lightly surrendered. It is also a principle which provides important opportunities for the implementation of practical measures of social and economic progress. Although it is true that the principle of parliamentary sovereignty was established in the pre-democratic time, it was nevertheless the first essential step on the road to democracy, and continues to perform a democratic function, indeed a function which might be said to be peculiarly sensitive to the constitutional principles of democratic socialism. For the essence of a democratic socialist constitution is the principle of popular sovereignty, and whatever Dicey and other writers may have thought when writing in a different age, the principle of parliamentary sovereignty can be defended now as the constitutional or legal principle which best reflects and gives effect to the political principle of popular sovereignty.
So we are impaled on the horns of a dilemma. There is a demand for constitutional reform. And there is an argument that social and economic rights have as great a claim to constitutional recognition as do civil and political rights and freedoms. (Indeed the claim is all the greater in the sense that people in this country still have the right to vote and the right of freedom of expression, if they can afford to exercise it. But there is no right to be represented by a trade union, to have one's union recognised by an employer for the purposes of collective bargaining, or to be protected from dismissal for taking part in a strike or other industrial action.) Yet there is concern about leaving the enforcement of social and economic rights to the courts, partly because of the record of the courts in this area, but partly also because of the need not to usurp the proper role of Parliament. All of this suggests that the way forward may depend on a system of entrenchment which relies on Parliament rather than the courts, and is for the protection not only of social and economic rights but also civil and political rights. The solution to this problem is in fact provided by institutional structures currently in place in Sweden. Although these were mainly designed for the safeguarding of constitutionally protected civil and political rights, they are capable of adaptation to serve a much wider need. The principal method for the safeguarding of constitutionally entrenched rights is the Constitutional Committee of the Riksdag. If it were to find that a Bill violates the Constitution, the Bill could be delayed for a year unless it has the support of 5/6 of the members of the House. It is not suggested that this type of constitutional scrutiny should be adopted in Britain in precisely this form, but it does provide some food for thought. One possibility would be to establish such a Committee in Parliament (questions will arise as to appointment and composition) and to entrust it to scrutinise legislation and secondary legislation to ensure compliance with treaties such as the European Convention on Human Rights and ILO Conventions 87 and 98. Questions would then arise as to the powers of such a Committee and whether there should be parallel structures in the second chamber (or indeed whether there should be a joint committee of the two Houses).
Although there are many drawbacks with a regime such as this, it also has many attractions, not the least of which is that it leaves responsibility for the enforcement of rights with Parliament. Moreover, by providing that civil and political rights would be protected in the same way, it thereby reduces the risk of important measures of social progress being undermined by judicial review at the suit of companies with their well filled money bags. In effect it restores the role of Parliament as the defender of the rights of individuals within the community; it does not authorise the sacrifice of social and economic rights on the alter of civil and political liberty; and it does not make the vindication of rights dependent on people's ability to litigate. It does mean, however, that the rights in question would not be self-executing and that implementing legislation would be necessary to give them content and substance. The scheme proposed here would be designed to operate as a restraint on any erosion, by government sponsored legislation, of the constitutionally entrenched provisions. The constitutional entrenchment of social and economic rights would thus have to be accompanied by measures for their statutory implementation.

A code for trade union rights
The task then is to draw up a statutory code appropriate for the domestic legal agenda, a code to replace that which we currently have, now extending to over 400 pages in what will be three consolidation Acts. This is not to suggest that we can or should contemplate a statutory code which would regulate every worker for every moment of the working life. But it is to suggest the need for a comprehensive code to replace the deregulatory and deconstructionist structures which we currently have in place. Unless we are to return to the common law, whatever replaces the current framework will inevitably and unavoidably provide a comprehensive platform of minimum rights covering a wide range of issues (drawing on ILO and EC standards), and will also seek to restore power to trade unions to act on behalf of workers and to build upon the platform of statutory guarantees.
There is a need for a strong framework of legislation which guarantees rights in respect of trade union membership, trade union organisation, and trade union representation and recognition. It is true that we already have rights in respect of trade union membership, in the sense that workers may not be dismissed or have action short of dismissal taken against them because of their trade union membership, or their participation in trade union activities at an appropriate time. The Wilson case, however, exposed the limitations of the current protection, which in any event was further weakened by the legislation passed in the wake of the Court of Appeal's decision that the employer acted unlawfully. There is thus a need, as an early priority, for the current protection to be extended by providing that people are entitled to protection from discrimination not only on account of their trade union membership or activities, but also on account of enjoying the benefits or services of membership.
On the question of trade union organisation rights, the aim here is to enable unions to build up their strength in the workplace in order adequately to represent members employed there. But as matters currently stand, the only effective organisational right which British unions enjoy is the right of their lay officials to have time off work with pay in order to carry out their industrial relations duties or to undergo training in these duties. Based on ILO Convention 135, this clearly contemplates the possibility of lay officials being entitled to paid time off work to seek to recruit newly hired employees, to hold meetings of the membership at the workplace, and to represent members in grievance or disciplinary proceedings or before outside bodies such as industrial tribunals. But all this applies only where the union is already recognised by the employer, and moreover it fails to address adequately the problems which unions face in trying to recruit and represent members in a hostile environment.
There are in fact three organisational needs for unions. The first is the right of full time or branch officials to enter a workplace in order to meet workers employed there; the second is the right of the union in the workplace to hold meetings and elections at the workplace; and the third is the right to distribute material about the union to members and other workers employed there. There is a case for saying that organisational rights, which are designed principally to build up strength and a presence in the workplace, are in fact a necessary prerequisite to recognition and should be acknowledged as such. There is thus a strong case for arguing then that these rights should depend not on the union being recognised by the employer but on its being represented in the workplace - though clearly it is open to consideration whether a single member should be enough to unlock the door for the union, or whether a more substantial level of representation should be required. Apart from trade union membership rights and trade union organisation rights, the third factor in the equation is trade union representation and recognition rights. Here there are two offerings on the menu, botLof which look appetising, though neither of them may on its own satisfy the real hunger for legislation. One option is that developed by the campaign group Press for Union Rights under the NU] General Secretary John Foster. This proposed that workers should have the right to individual and collective representation by a trade union on all matters relating to their working conditions.
Developed in a document entitled Workers' Rights: The Next Step, the proposal for collective representation has proved to be the most controversial. It would give workers the right to nominate a trade union to act on their behalf collectively with other workers, the employer being under a duty to meet the union officials representing the workers in question, a duty which would apply regardless of the number of workers who had elected in favour of collective representation of their interests.
The other option is that which was recently proposed by the TUC in their document Your Voice at Work, in which trade unions would be entitled to recognition for the purposes of collective bargaining where they could demonstrate either majority membership or majority support in the appropriate bargaining unit. Where a union fails to secure majority support but has the support of at least 10 per cent of the workers in the unit in question it would be entitled to general consultation rights which would include the right to be consulted about matters prescribed by EC law. In workplaces where there is no trade union support of this level, the employer would be required to establish an elected body to represent the workforce as a whole, with which the employer would be required to consult on the matters prescribed by EC law, currently business transfers and collective redundancies. Unions would have the right to nominate candidates for what would in effect be a works council.
The implementation of either or both of these proposals would go a long way towards helping trade unions to expand their role in the workplace, and would at the same time help people like David Wilson in the future. But whether they will be enough on their own to restore collective bargaining to the levels to which we were accustomed before 1980 is an open question. As already pointed out, it is now estimated that collective agreements reach only 47 per cent of the labour force, compared with a remarkable 82 per cent in the mid 1970s (if wages council orders are also taken into account). In other words, less that half of British workers are now covered by collective bargaining, a shocking statistic when compared with the levels of coverage in other major OECD countries where (with the exception of Canada, the United States and Japan) the levels are typically much higher. OECD figures suggest that the level of coverage in Austria is 98 per cent, Belgium 90 per cent, Germany 90 per cent, Netherlands 71 percent and Sweden 83 per cent.
It is difficult to avoid the conclusion that if we are to have a new constitutional settlement under a new left of centre government, it must necessarily give prominent scope to social and economic rights, if only because they have proved to be the most vulnerable to erosion. But any new settlement must also be mindful of the difficulties in relying on the courts for the effective implementation of social and economic rights, and must acknowledge also the constitutional role and function of Parliament. This has implications not only for social and economic rights, but also for the civil and political liberties, which should enjoy no elevated constitution status, but which should be enforced in the same way as social and economic rights. A new commitment to social and economic rights would not then rely solely on a commitment to their constitutional recognition, but above all on a comprehensive statutory code for their effective implementation.
Historically we might have hoped that collective bargaining would have been the primary vehicle for the delivery of social and economic justice. But the erosion of collective bargaining density is such that is open to question whether this is a realistic option unless a determined effort is made to re¬establish effective and comprehensive bargaining machinery. The current proposals of bodies like the TUC and the Press for Union Rights group would clearly go a long way towards closing the representation gap in British workplaces. But it remains to be seen whether they will be enough, without the accompaniment of some kind of joint or tripartite sectoral employment regulation. Unless a commitment of this kind is undertaken we are facing the unavoidable prospect of workers relying on the state for the direct regulation of their working conditions in numbers much larger than would have been considered acceptable or desirable in the past.