The objection to the courts on the labour left is based on the nature of law and the nature of the interests served by law. In common law systems, the judges are rule-makers and are indulged to a great extent as authors of the law, including a great deal of private law. One area of law that remains the province of the judges is the contract of service, which the courts have developed to protect the interests of employers, whether intentionally or otherwise, though only willful blindness could fail to see the impact of these developments.

The contract of service is built on freedom and the fiction of the equal freedom of both parties to negotiate acceptable terms. There is no recognition of the inequality of bargaining power between the parties — the worker being treated as having the same liberty as a multinational monopoly employer, and the same power to negotiate the terms and conditions on which he or she will be employed. In recognising their equal liberty, the courts also recognise the equal liberty of the parties to exercise that liberty in a discriminatory fashion. So the employer is free to refuse to employ someone because of the colour of his skin, or to pay a woman less than a man simply because of her sex.

Why not? This is freedom of contract, and the worker is equally free not to apply to work for an employer who will discriminate against him on racial grounds, or to work for someone who proposes to pay her less than than a male counterpart. Protection against discrimination was eventually won, though not by judicial innovation, but by parliamentary legislation. Once in employment, the worker is then required to obey the employer and to comply with any lawful and reasonable order. If the worker fails to do so, the employer is entitled to dismiss them instantly. In the absence of that kind of legal justification, so long as the employer gives notice (which at common law was measured in minutes, hours, or days) the latter is free to dismiss them for good reason, bad reason, or no reason at all.

The judges (for it is they and they alone who are responsible) have thus created the common law to give maximum power to employers as a class over workers as a class, a power forged as we have explained on the anvil of economic liberty. The common law developed no countervailing power for workers to that it had developed for the employer. There are thus no competing underlying principles based on the dignity of the worker, respect for human rights, the idea that labour is not a commodity (which the common law goes a long way to confound), or any other default position to constrain the unbridled power of the employer.

Yet contract law developed by judges does not simply empower employers in their relations with workers individually. It is also the foundation of the employer’s power to contain trade unions, which developed to defend workers from the abuse of that power and to ensure workers just reward for their labour. The judges found that anyone who induced workers to break their contracts with their employer by taking industrial action could face liability in tort for inducing breach. This meant that if workers took strike action to increase their wages or defend their jobs, their union could be restrained by injunction and made liable in damages.

The control of trade unions in this way was a purely judicial invention. It was not mandated by parliament, but created only by the judges, who appeared to resent any attempt by trade unions to interfere with the liberty of contract or the ability of employers to run their businesses without restraint. In a period of just four years (1901 – 1905), the House of Lords decided not only that organising strike action (for whatever purpose) was tortious as a breach of contract, but also an unlawful conspiracy to injure, there being no defence in either case. To top it off, the House of Lords also famously treated trade unions as corporations so as to make them liable in damages for losses caused by a strike to defend a victimised worker.

The formation of the Labour Party was crucial to forcing parliament’s intervention to protect trade unions and their members from these liabilities — the Trade Disputes Act 1906 setting in train a legal framework that persists to this day. But rather than giving trade unions fundamental rights to organise, to bargain, and to strike, the legislation simply gave limited protections against the common law rights of the employer that had been established by the judges. Trade unions thus had a licence rather than a freedom or a right — a licence that was subject increasingly to restrictions and conditions, as the courts continued to develop new forms of common law liability, and engaged in a process of restrictive statutory interpretation to frustrate parliament’s clear intention.

These judicial restraints prohibiting certain forms of trade union activity from judge-made law were to form the basis of the Thatcher onslaught on trade unions, which started in 1980 and continued relentlessly until the fall of the Major government in 1997. The Thatcher legislation retained the structure of the 1906 Act and its progeny, but imposed tighter licence conditions before the union could be entitled to rely on the (now limited) protections. The latter confined the purposes for which strike action could be taken, imposed excessive procedural requirements before industrial action could occur, restricted the right of peaceful picketing, banned trade unions from taking action in support of other workers in dispute, and restored the ‘corporate’ liability of the trade union, which could again be restrained by injunction and sued in damages.

The problem for labour law is thus a legal culture in which the courts have developed default rules which provide virtually unconstrained liberty to the employer (whether in contract or tort), and have responded in a hostile manner to attempts by legislation to dilute the effect of these common law rules. Since 1980, the legislation has swum with the common law tide. In this regard, the position in the United Kingdom contrasts sharply with other European countries, in many of which labour rights are laid out in the constitution. The constitutional provisions will vary, but it is not unusual for constitutions drafted in the post-Second-World-War era to include both the right to bargain collectively and the right to strike.

These rights are also recognised in a number of international treaties to which the United Kingdom is a party, including ILO Conventions 87 and 98, and the European Social Charter of 1961 (as expressly provided by Article 6, which has direct effect in some Council of Europe states). There is, however, no express recognition of labour rights in the European Convention on Human Rights, save only that in guaranteeing the right to freedom of association, Article 11(1) provides that everyone has the right to form and join a trade union “for the protection of his interests”, subject to the usual wide qualifications in Article 11(2), and the unusual provision in the second sentence of Article 11(2), excluding those engaged in the administration of the State.

Although embedded in a very different legal culture, the initial response of the European Court of Human Rights was to resist requests to expand the scope of Article 11. Thus, the court appeared to take the view that labour rights were a matter for its sibling, the Social Charter (despite the fact that there were no effective ways of enforcing the Charter). So, in a trilogy of cases in the 1970s, the court held that Article 11 could not be read to include a right of trade unions to be consulted, to bargain collectively, or to strike. In some respects, this was perfectly understandable given the origins of the complaints in these cases: neither Belgium nor Sweden at the time could be said to be countries that did not fully respect trade union rights.

But from a position of neutrality in relation to labour rights, the court moved to a position in which it turned the Convention against trade unions, attacking closed shop arrangements under which trade unions and employers agreed that all employees must be members of a trade union as a condition of employment. In the British Rail case in 1981, this was found to breach Article 11, a decision all the more provocative for the fact that Article 11 did not expressly protect the right of workers not to join a trade union. Indeed, this had been deliberately omitted from the Convention because of the existence of closed shop arrangements operating in the United Kingdom and elsewhere, which the authors of the treaty did not wish to disrupt.

At this point, British trade unions were being knocked around at home by the Conservative government (GCHQ, the miners’ strike, anti-trade union legislation) and were now being offered nothing from the European Court of Human Rights other than further attacks. The court appeared to be simply an extension of the judicial processes in London, which were even more hostile and unresponsive. Further dismay was caused by the GCHQ case, in which a number of workers employed at the government’s listening station were dismissed for refusing to give up their trade union membership. Although this seemed to be an obvious breach of Article 11(1), the complaint was ruled in admissible because the civil servants were engaged in the administration of the state.

The experience of British trade unions in Strasbourg was thus an unhappy one. Attacked on one flank and unprotected on the other: workers who refused to join a trade union were protected (British Rail), whereas those who joined a trade union were not (GCHQ). The British Rail case was nevertheless a game changer for other reasons, perhaps not appreciated at the time. True, it represented an attack on an important source of trade union power (which was being dismantled anyway by the Tory government). But it also liberalised judicial reasoning, for — unlike the labour cases in the 1970s where the court insisted on applying the original intent of the authors of the treaty — in the British Rail case, the court now insisted that the treaty was to be treated as a ‘living instrument’.

Such an approach, of course, greatly expands judicial power, though it must be said the living instrument approach was subsequently developed in a benign way. From the early years of the twenty-first century, it was possible to detect a new approach of the European Court of Human Rights to labour rights, the court having moved from a position of (i) non–engagement, to one of (ii) further restraining labour rights, to one of (iii) labour protection. The beginning of this progressive phase was marked by Wilson and Palmer v United Kingdom, where the court upheld an Article 11 claim following discrimination against a trade union activist, which the House of Lords had upheld as lawful. This set the scene for the hugely important decision of the court in Demir and Baycara v Turkey in 2008, which elevated labour rights to new heights.

In the latter decision, the grand chamber unanimously reversed the decisions of the 1970s, and held that the living instrument approach to construction could be turned in a progressive direction. This was reinforced by the court’s new ‘integrated’ approach, whereby account is taken of other international and national instruments. It was held in Demir and Baycara that Article 11 was now to be read to include the right to bargain collectively, in accordance with the standards set out in ILO Convention 98 and the European Social Charters of 1961 and 1996. The reasoning applied with equal force to the right to strike, and within a few months the court also held — relying on ILO Convention 87 — that the right to strike was protected by Article 11. This was a hugely significant development.

The Strasbourg Court’s position on the right to strike has been reaffirmed since in a number of cases from a diverse range of Council of Europe member states (including Turkey, Russia, Ukraine, and Croatia), with obvious implications for the United Kingdom, particularly in view of Tony Blair’s famous promise on the eve of the general election in 1997. In an interview with the Murdoch press, Blair committed New Labour to ensuring that British trade union laws would remain the most restrictive in the western world. The Strasbourg Court now provided an opportunity to raise the standard by challenging the Thatcher legacy, and, more importantly, challenging the common law foundations on which British labour law is based.

The promise of the Human Rights Act 1998 was that Convention rights could be enforced in the domestic courts. Legislation such as that restricting trade union freedom is to be construed consistently with Convention rights. Where such a construction is not possible, the courts may declare the legislation in question incompatible with Convention rights, inviting a parliamentary response. But the hopes built up by the Human Rights Act were soon dashed. The domestic courts refused to engage with the Demir and Baycara line of authority. Despite having raised the argument on many occasions in the High Court and the Court of Appeal, those courts have declined to give way, whether in cases dealing with the right to bargain collectively or the right to strike.

With the domestic courts blocking the application of Convention rights, British trade unions turned their attention to Strasbourg, expecting the same indulgence by the court as their counterparts in other member states. It is nevertheless extraordinary that not a single one of the six British trade union cases decided by Strasbourg since Demir and Baycara has been successful. In contrast, as we have seen, there have been many Article 11 cases from other jurisdictions, very few of which have failed, and those which have failed have been on marginal issues. The British cases did not raise marginal issues, being concerned with blacklisting of trade union activists, the abolition of collective bargaining, and the disciplining of strikers — all core questions of fundamental importance.

They also dealt with the ban on the right to strike in the prison service (and the lack of any satisfactory compensating alternative as international law demands), and the total ban on all forms of solidarity action by trade unions (recognised by the European Court of Human Rights as being at the extreme end of national law within the Council of Europe). It is a remarkable feature of all of these cases that they were declared inadmissible, as being “manifestly ill-founded”. They never made it past first base, despite the seriousness of the issues raised. In the only decision that was fully reasoned, the court held against the wide restrictions on the right to strike on the ground that Article 11 gave respondent States a wide discretion (a ‘wide margin of appreciation’).
Despite the inflation of Article 11 by means of adjudication, it has thus had no impact on the United Kingdom. The obvious contrast in the treatment by the European Court of the British and other cases clearly calls for an explanation, having produced what we have suggested elsewhere is an invisible Article 11(3) created by the European judges with the effect of dis-applying Article 11(1) from the United Kingdom. As a result, the ECHR and the Human Rights Act have failed to challenge the legal foundations of the right to strike in the United Kingdom, and failed to modernise the law, which clings like a limpet to its foundations in the industrial revolution to serve the interests of business. There is no recognition of countervailing rights and no recognition of the need for countervailing power.

For the left, it is business as usual — the optimism that the legal protection of human rights might offer some respite having been cruelly misplaced. The reason for this lies in the politics of law, which can never be overcome. All law, of course, is the product of a political process (whether it be common law, statutory law, or international law). In the case of the common law, the values of which remain intact as the human rights principles have failed to ignite, it is a political process in the sense that it is a process by which rules of general application are made by political actors called judges to serve the social, economic, and political interests of classes of people appearing before them.

But in the case of human rights law, there are different politics at work — yes, the politics of class, though not only the politics of serving interests that we see in the common law, but also the politics of interference and influence that we see in the British government’s meddling with the independence of the Strasbourg Court, as reflected in the emergence of what we have called Article 11(3). The British government’s hostility to the court in the wake of the prisoners’ voting, deportation, and other decisions has been well publicised. So has its demand for a greater margin of discretion, and its threats of a ‘Brexit II’, which would see the United Kingdom pull out of the ECHR and replace it with a bill of rights, homespun by the British bulldog.

We challenge anyone to provide an explanation for the emergence of the de facto Article 11(3) and the timidity of the court exclusively in British cases, which is unrelated to this overt political pressure from the British government. To lose some cases at a time of expanding jurisprudence would be bad luck. To lose all suggests strongly that there are other forces at work. For the left, dalliance with the Convention was an opportunity to provide a twenty-first-century veneer to the nineteenth-century foundations with which we started this piece. That opportunity appears now to have gone, with renewed questions being asked about whose interests the Convention serves. But with this legal distraction now behind us, it is time again to focus on other political venues.

The ambition must be the radical one not of carving out exceptions to the common law, but in excluding it altogether (not only from the interface between labour and capital), along with its pre-democratic origins, the heavy political baggage that it carries, and the deeply undemocratic processes by which it is made.

Keith D. Ewing is Professor of Public Law at King’s College London. John Hendy QC is a barrister at Old Square Chambers.