News International & the Employment Protection Act 1999

Professor Keith Ewing


By Keith Ewing, Professor of Public Law at King’s College London, published on July 29th in Tribune

The News International scandal has exposed various forms of corruption at the heart of the British political system – a corruption of politicians and a corruption of the police. It has exposed a global company who thought that it was above the law, and appeared routinely to break the law with impunity.

Trade unionists suspect, however, that NI was prepared also to seek immunities from the law and that craven politicians were prepared to grant them. The best example of this relates to the trade union recognition legislation introduced by New Labour in 1999. This legislation was designed to honour a longstanding commitment by Labour to require employers to recognise trade unions for the purposes of collective bargaining, where the union could demonstrate majority support in the enterprise in question.

Problem. News International had infamously derecognised trade unions following its move to Wapping in 1986. The company had, moreover, established a staff association in the mid 1990s with which it conducted staff relations. The News International Staff Association (NISA) was not an independent trade union, and indeed was denied a certificate of independence by the government appointed Certification Officer, who ruled in 2001 that it could not be said that NISA was not ‘liable to interference’ by the company.

The problem for New Labour was that it wanted the support of the Sun and the News of the World at the 1997 general election and at subsequent elections. Indeed so desperate was New Labour for this doubtful blessing that Tony Blair was prepared to dash off to Australia to bend the knee in fealty to the United Kingdom’s most powerful media baron. But although Rupert was prepared to provide New Labour with the endorsement that it so desperately wanted, he would surely have been anxious about the prospect of having to welcome back the print unions and the journalists under the proposed new recognition legislation New Labour had promised.

By an extraordinary coincidence, Rupert was able to provide New Labour with the political support that it wanted, without the risk of having to recognise the unions. This is because there was a little-noticed provision tucked into the corner of the new legislation, in the shape of paragraph 35(4). This incomprehensible provision appears to give an employer an immunity from the duty to recognise a trade union (whatever the level of support for the union), where there is a pre-existing arrangement whereby the employer has given ‘bargaining’ rights to a non independent creature of its own making (such as NISA).

This coincidental endorsement of Murdoch’s triumph at Wapping was a shameful chapter in the early history of New Labour, but so revealing of what was to follow. New Labour effectively denied affiliated unions the right to represent its members in collective bargaining at one of the country’s single biggest media employers. It is true that the legislation also provided a procedure for the de-recognition of bodies like NISA. But this was an obvious non-starter. It would require an employee of the company to ask for a de-recognition ballot to be held, and to provide evidence of support for his request from the workforce as a whole. Enough said.

Arrangements of this kind would be unlawful in the United States, and they are inconsistent with the requirements of international law. The International Labour Organiisation (a UN agency) has produced several treaties on trade union rights, all ratified by and binding on the UK. Convention 98 provides clearly that steps should be taken to stop the formation of workers’ organizations under the domination or control of an employer. Under New Labour, we not only failed to stop organizations such as NISA, but actively conspired in their formation, as a means of undermining the other duty in Convention 98, which is the duty to promote collective bargaining.

We thus have the extraordinary spectacle of New Labour not only failing to remove the violations of international labour standards inherited from the Thatcher and Major years, but also introducing fresh legislation with further violations tailored in. This apparent immunity for NI was pointed out in the pages of the Industrial Law Journal in 2000, and in the pages of Federation News (the journal of the General Federation of Trade Union) in 2001. But no one took any notice, presumably because nobody cared. It was also raised in evidence to the Joint Committee on Human Rights in 2009 as part of its ‘investigation’ into Business and Human Rights.

There can be no excuses now, though first a good journalist now needs to ask why paragraph 35 was introduced in the first place. In the meantime, trade unions have a responsibility to challenge the legislation that has provided this disgraceful immunity, and to do so in the first instance by referring the matter by way of a complaint to the Freedom of Association Committee of the ILO in Geneva, to provide ammunition for a further challenge in other domestic and international legal forums. New Labour’s paragraph 35 is as big an affront to free trade unionism as was the Tories’ ban on trade unionism at GCHQ in 1984. It should be opposed with the same vigour.

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