Southerbys protest

PCS members protest outside art auctioneers Sothebys in London, in solidarity with locked out art handlers at Sothebys New York. PHOTO: TUC

The government’s Trade Union Bill, introduced in July and expected to receive its second reading in the House of Commons in the next month, proposes a series of severe restrictions on the right to strike – and on the right of trade unionists to exercise their freedom to protest.

Amidst its highly restrictive current provisions, the Bill will require unions to report its intention to organise any protest – including any form of demonstration related to an industrial dispute that takes place away from the workplace – to employers and regulators 14 days in advance of any action. This is separate from the proposed extension of notice of any industrial action from seven to 14 days.

In its ‘consultation on tackling intimidation of non-striking workers‘ [pdf_icon209 kB], the government says [in 2.4]:

There are well-established public order grounds for proportionate restrictions on some protests. Where such activities are seeking to influence workers and businesses through the use of intimidation to break their contracts with business as part of a wider industrial dispute, there may be analogous grounds for qualifying these rights (also helping to promote transparency and accountability).

The Bill’s automatic assumption is that any form of union-organised protest is ‘intimidation’ and requires curbing, even though there has been a specific criminal offence of intimation or harassment by individuals since the Protection from Harassment Act 1997. In England and Wales, it is also already an offence to cause harassment, alarm or distress under section 5 of the Public Order Act 1986, whilst section 241 of the Trade Union and Labour Relations (Consolidation) Act 1992 includes particular provisions on “Intimidation or annoyance” (powers used controversially against anti-fracking protesters in 2014).

Despite these existing laws, the government appears intent on using ‘intimidation’ is a useful excuse for clamping down on any protests against corporate interests that include union participation.

Ministers also want trade unions to publish every aspect of their future protest plans, including timings, location, the number of participants, whether there will be “loudspeakers, props, banners etc” and “use of social media, specifically Facebook, Twitter, blogs, setting up websites and what those blogs and websites will set out”. Protest organisers must also say whether they intend to liaise with other unions and have informed members of the relevant laws. If unions fail to report their plans, then they face significant fines.

Unions will be expected to reveal their detailed plans for protests not only to regulators and employers, but to the police. The government insists unions “would be free to do something different but would be required to update their plans”, which would mean constantly informing police of any changes relating to its protest. As we have documented, protest organisers already experience massive pressure placed upon them by police and these proposed restrictions on unions would in practice amount to them seeking prior state approval for the way they exercise their right to assembly.

If unions failed to, or if action took place which had not been properly notified, “then this would be a matter that a court could consider when assessing other civil claims. For example, in a civil action for nuisance or trespass an employer could point out that a union has not cited the protest action in its plan and therefore properly notified the employer, as it was required to do so”. The government has said it would welcome local authorities having powers to impose community protection orders against trade unions (under the Anti-social Behaviour, Crime and Policing Act 2014) to “prevent intimidation”. As well as civil action, this would also place individual trade unionists at far greater risk of victimisation and under an increased threat of arrest and criminal prosecution for any alleged ‘deviation’ from narrowly-drawn protest plans.

Crucially, it would also impose completely different regulations on trade union members to every other kind of protester and ensure unions would have little scope to adapt quickly, take spontaneous action or protest creatively – not until they had filled out the appropriate paperwork to police, employers and the Certification Officer (quite literally in triplicate).

These proposals involve fundamental changes to current rights to freedom of expression and assembly. However, the government’s ‘European Convention on Human Rights memorandum‘ [pdf_icon, 364 kB] fails to even mention the evident restrictions on Article 10 and Article 11 rights involved in insisting trade unionists reveal exactly what they plan to say on a blog or on Facebook a fortnight in advance.

The government seems intent on ignoring its international obligations to positively facilitate and protect the freedom to protest and to ensure that restrictions are proportionate and non-discriminatory. The danger is that if the bill becomes law, it will embolden the government to change existing public order obligations to notify police about a march and even extend notice requirements to static assemblies.

If you would like to get involved in opposing the Bill, the TUC is running a campaign – you can find out more at tuc.org.uk/tubill