BA's assault on human rights

The right to strike is recognised as a human right in international treaty after international treaty, including the International Covenant on Economic, Social and Cultural Rights and the Council of Europe's Social Charter of 1961. It is even recognised in the EU Treaty of Lisbon.

Not only that. The right to strike has recently been said by the European Court of Human Rights (ECHR) in Strasbourg to be protected by the European Convention on Human Rights.

And the European Court has suggested that in determining the scope of the right to strike it is necessary to ensure that national law complies with the right to strike as protected by the International Labour Organisation (ILO).

This is good news for British trade unions and their members, but very bad news for the British government, whichever party wins the next election.

The ECHR has held in a number of cases in recent years from Turkey and Russia that workers who take lawful strike action should not be subject to disciplinary or other penalties for doing so.

This means the court has opened the way for the BA strikers to take a claim under the convention on human rights.

They will not be able to pursue that claim in the English courts, though they may be able to pursue claims for breach of contract. But they will be able to bring a claim in Strasbourg against the British government which has ultimate responsibility for ensuring that convention rights are observed.

All this is clearly important in the context of the BA dispute and will surely be known by the company, which presumably did not act as it did without legal advice.

However the decisions of the ECHR raise wider questions about the extent to which British law fails to comply with international labour standards and the possibilities available to trade unions to do something about it.

As is now well-known in the movement, year after year since 1989 the ILO has condemned Britain for the legal restrictions on the right to strike.

Concerns have been raised that a strike is regarded as a breach rather than a suspension of the contract of employment, that industrial action can be taken only in relation to a narrowly defined trade dispute and that there is a total ban on solidarity and secondary action.

These restrictions breach the human rights of trade unions and workers.

The ECHR has now provided an opportunity to address these concerns by allowing trade unions to take legal action in the Strasbourg court to recover rights lost in Thatcher's war on the unions, which new Labour has failed to restore.

One of the emerging lessons from the BA dispute is that trade unions now need to think very, very seriously about committing time, energy and resources to a litigation strategy to get these rights back.

In the past, the trade union commitment was to a particular form of political action to secure rights that had been undermined by the courts.

They even created a political party for that purpose. That party has been in government for the last 13 years and has been nourished by trade union affiliation fees and donations of about £100 million since 1997.

For what? To sustain Tony Blair's boast that Britain would have the most restrictive labour laws in Europe?

The lesson for the future is this. If Labour is unwilling to restore the lost rights of trade unions, other means will have to be found.

The BA dispute makes it clear why these rights are necessary, why workers need protection and why they should be free to call on the support of others when in dispute.

There is no other way for workers to protect themselves when confronted by an aggressive employer determined to push through change regardless of the wishes of those on the sharp end.

So as an election manifesto is being drawn up, this is a time for tough political demands and a time not to be fobbed off yet again with excuses about why a new Labour government cannot comply with international law, and why a new Labour government cannot raise standards to a level found elsewhere in Europe.

If new Labour is unwilling to restore the rights it was created to protect, then the funds used to sustain it should be used to recover these rights in whatever way it takes. Next stop Strasbourg?

Keith Ewing is president of the Institute of Employment Rights.