Independent Workers Union of Great Britain, R (On the Application Of) v Secretary of State for Business, Energy and Industrial Strategy & Ors

The Central Arbitration Committee (CAC) rejected the Independent Workers Union of Great Britain's (IWGB) application for recognition on the basis that paragraph 35 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 precluded admission where there was already in force a collective agreement under which an independent trade union (UNISON) was recognised for the relevant workers. The IWGB challenged that decision under Article 11 ECHR, arguing paragraph 35 unlawfully interfered with the right to collective bargaining and should be read down under s.3 of the Human Rights Act 1998 or declared incompatible under s.4.

The Court of Appeal dismissed the appeal. It held that the scope of Article 11, as developed in Demir and Baykara, does include collective bargaining as an essential element but that states retain a wide margin of appreciation in structuring statutory recognition schemes. Paragraph 35 reflects legitimate Parliament-made policy choices to promote stability, avoid fragmented bargaining units and to give primacy to voluntary agreements with independent unions, and those choices strike a fair balance in the circumstances of this case. The court distinguished situations (for example where there is no mechanism to secure recognition at all, or where the incumbent is non-independent) where Article 11 might require different treatment, and indicated some hypothetical facts might raise different issues.

The IWGB sought judicial review of two CAC decisions rejecting applications for statutory recognition under Schedule A1 to the 1992 Act. The first decision (the principal issue on appeal) found that paragraph 35 rendered the IWGB's application inadmissible because a voluntary collective agreement authorising UNISON to conduct bargaining in respect of workers falling within the IWGB's proposed unit was in force. The Union argued that paragraph 35 unjustifiably interfered with Article 11 ECHR and asked the court to read the provision down under s.3 HRA or to make a declaration of incompatibility under s.4.

Procedural history: permission to apply for judicial review was granted and the matter was heard by Supperstone J in the Administrative Court, who dismissed the claim. Permission to appeal to the Court of Appeal was granted. The Court of Appeal heard argument and proceeded despite a later transfer of the relevant staff to the University under TUPE, concluding the appeal should be decided on principle.

Issues framed by the court:

• whether paragraph 35 of Schedule A1 is compatible with Article 11 ECHR in circumstances where a voluntary agreement with an independent union exists;
• whether paragraph 35 could or should be read down under s.3 HRA or whether a declaration of incompatibility under s.4 should be made;
• what margin of appreciation applies to domestic regulation of collective bargaining and recognition schemes.

The court's reasoning was as follows. The Strasbourg jurisprudence (notably Demir and subsequent authorities) recognises collective bargaining as an essential element of Article 11 in principle but also emphasises a wide margin of appreciation for states in organising industrial relations. The statutory scheme in Schedule A1 pursues legitimate objectives: encouraging voluntary recognition, avoiding fragmented bargaining units and promoting stable collective bargaining arrangements. Paragraph 35 implements those objectives by disallowing applications where an existing voluntary agreement with an independent trade union covers the workers. The court held that in the present factual matrix that legislative choice is within the State's margin of appreciation and strikes a fair balance between competing interests. The court distinguished Boots (where the incumbent union was non-independent) and accepted there are conceivable hypothetical fact patterns in which Article 11 might require a different outcome, but those were not the facts before the court.

Appeal dismissed. The Court of Appeal held that although Article 11 covers collective bargaining as an essential element, paragraph 35 of Schedule A1 to the 1992 Act is a legitimate parliamentary choice designed to protect voluntary recognition arrangements and to avoid fragmented bargaining units. Given the wide margin of appreciation afforded to states in this field and the policy objectives embodied in Schedule A1, the interference alleged by IWGB was justified and did not breach Article 11. The court distinguished cases where the incumbent union is non-independent or where no mechanism for recognition exists, noting different facts might produce different outcomes.

The claim was heard at first instance in the Administrative Court before Supperstone J (CO/1604/2018), who dismissed the claim (judgment 25 March 2019). Permission to appeal to the Court of Appeal was granted (Floyd LJ, 19 December 2019). The Court of Appeal allowed the appeal hearing and dismissed the appeal ([2021] EWCA Civ 260).