KEITH EWING and JOHN HENDY highlight just how unworkable the government’s planned restrictions on trade unions are
DURING the second reading debate on the Trade Union Bill, right-wing Tory backbencher David Davis attacked the picketing provisions of the Bill for their violation of the right to freedom of association, having previously described them as reminiscent of Francisco Franco’s Spain.
It is not often that we agree with Tory MPs, but on this occasion Davis is right.
Under the Bill as it stands, trade unions will be required to appoint a picket supervisor and supply that supervisor with a letter of authorisation.
Thereafter either the union or the supervisor will be required to tell the police the picket supervisor’s name and how they can be contacted.
The supervisor must show the letter of authorisation to a police constable or to any other person who reasonably asks to see it.
And as is by now very well known, “the picket supervisor must wear a badge, armband or other item that readily identifies the picket supervisor as such.”
Failure to comply with any of these obligations will mean that the union loses legal protection for the picketing. In consequence, an injunction can be granted to stop the picketing and damages claimed subsequently to cover any losses it causes.
So what are the legal problems? Here are 15 questions to start with:
1 A police constable can demand to see the letter of authorisation. Does this mean that the police officer can stop and detain a picket supervisor for this purpose, even though there is no ground to suspect that the supervisor, or anyone else, has committed an offence?
2 The Bill does not define the nature of the letter of authorisation. Presumably it must be addressed to the appointed supervisor rather than to any member who happens to have it in their hand? If that person is ill, will the union have to make emergency arrangements to appoint another supervisor and get a letter to them?
3 Are there any formalities — such as those in the Police and Criminal Evidence Act 1984 — that will need to be complied with by the constable before and after this request for the letter of authorisation is made, including an account of the reasons why it is made and a written record of the request to be supplied to the supervisor?
4 What happens if the picket supervisor refuses to provide the letter of authorisation to the police? The Bill does not make it an offence to refuse to do so. But will the police officer be obliged to inform the employer that the letter of authorisation has not been provided by the supervisor?
5 What happens if the employer learns — perhaps from the constable — that the picket supervisor has refused to produce the letter to the police? The employer will then have grounds for seeking an injunction to have the picketing stopped. Will the constable be required to give evidence on behalf of the employer?
6 Conversely, what happens if the constable fails to inform the employer that this information has not been provided? As a result, the employer is unable to have a stop put to the picketing, which he or she can then claim has caused economic loss. Can the employer sue the police authority? Will the constable be disciplined?
7 What will happen to information provided by the union or the supervisor to the police, notably the picket supervisor’s name? How will the information be recorded? For how long will the information be retained and for what purposes? Will it ever be destroyed? Who will be notified of its destruction?
8 If a police database of picket supervisors is to be created, for what purpose is the information to be used and what restrictions will there be on the sharing of that information between police forces and between the police and employers? Will the information be recorded on other databases, such as special branch files?
9 Is there not an obvious risk that trade unions are being required to act as intelligence-gathering agencies for the police and the security services? Is such a role compatible with the government’s obligations under article 8 of the European Convention on Human Rights, which contains safeguards against state surveillance?
10 If trade unions are being required to act in breach of article 8 by performing an enforced role as agents of the state, will the trade unions in question be exposed to the risk of litigation by those members whose convention rights the union is required to violate? To say that this would be a cruel irony is to state the obvious.
11 Is a police database of picket supervisors compatible with the letter and spirit of the blacklists regulations 2010, which are designed to stop the compiling of lists of trade union activists? The exception that the list is “required or authorised” by statute does not apply here.
12 As for any other person who reasonably asks to see the supervisor’s letter of authorisation, does that include the employer or its managers? Can the employer keep a list of the picket supervisors it has identified without breaching the blacklists regulations?
13 What of members of the public? Could a disgruntled commuter, or dozens of them, demand to see the letter and then use the information to name the picket supervisor(s) on social media? Would lists compiled for this purpose, however informally, be compatible with the blacklists regulations?
14 The general secretary, who is the official required to sign all formal correspondence in most unions, must presumably sign the authorisation letter. Will an electronic or rubber-stamp signature suffice or does authenticity require an actual signature? Will the supervisor be required to produce identification, such as a driving licence or passport, to show that the letter of authority is really his or hers?
15 And as our colleague James Harrison has asked, what happens if the supervisor — having forgotten his or her armband — is arrested for obstruction of the highway? Would all the other pickets then be liable to be arrested and the union liable to face an injunction as a result?
The Bill requires each union to appoint its own supervisor except where the picket is organised or encouraged jointly.
Where unions are not acting jointly, each union’s picket will require its own supervisor. Since the police will only tolerate a picket of six, that means multiple supervisors and fewer “ordinary” pickets.
But where unions are acting jointly, the legal protection of those that have not appointed the supervisor will depend on the appointing union having complied with the various statutory requirements. There are strong reasons why even in the case of joint action, each union may thus feel the need to have its own supervisor.
That being the case, the London Underground dispute throws up an important practical issue. There are 270 separate stations on the Underground and dozens of depots, offices and other workplaces. RMT, for example, has balloted members across 445 workplaces. Many workplaces, particularly central London stations, have several entrances.
If each entrance to each workplace is picketed — a real likelihood because of the threat of agency workers being hired during strike action — will each union have to appoint a picket supervisor for each picket line, requiring the appointment of hundreds of picket supervisors and the delivery of hundreds of letters of authority?
We have focused on only one clause in the Bill, but this brief analysis shows both the absurdity and the repression at the Bill’s core. In a future article we will focus on the new powers of the certification officer.
Keith Ewing is is Professor of Public Law at King’s College London and John Hendy QC is chair of the Institute of Employment Rights.