The previous constitutional posts have been based on a short list of things pretty much everyone agrees you should have in a functioning modern democracy. Politicians in government (or with hopes of being in government soon) may be less enthusiastic about some of the provisions, which are explicitly intended to restrict their power. But most of them are provisions that even the UK’s unwritten Constitution allows for and that even governments with a thundering huge majority will think carefully before overturning.
What follows is a series of ideas that would
“create a constitutional order that reflects a broad public commitment to a more inclusive, egalitarian, and communitarian way, and to mark Scotland out as a ‘progressive beacon’, the following additional provisions might be considered:”
1. Enhanced constitutional rights
Beginning with the most commonplace:
(a) Economic rights (minimum wage, right to collective bargaining)
Cait Reilly has received widespread ridicule from the right-wing press (and Iain Duncan Smith called her “snooty”) for saying her human rights were breached by being forced to work for her benefits in Poundland: I don’t know who first referred to this as “slave labour”, which is banned by Article Four of the Universal Declaration of Human Rights, but we can agree that being required to work 30 hours a week for £2.30 an hour may be illegal, but it is not literally slavery.
Articles 23-25 of the Universal Declaration of Human Rights, however, were clearly breached:
Article 23: (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24: Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Article 25: (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
The legal minimum wage, that employers are obliged to pay unless they have got you for free with a £2275 sweetener from the Work Programme, varies by age or if you are an “apprentice” (a word with less and less meaning):
- £6.08 – the main rate for workers aged 21 and over
- £4.98 – the 18-20 rate
- £3.68 – the 16-17 rate for workers above school leaving age but under 18
- £2.60 – the apprentice rate, for apprentices under 19 or 19 or over and in the first year of their apprenticeship
The “workfare” rate – being permitted to receive your £69 a week JSA in exchange for providing 30 hours a week labour – is below the lowest legal rate even for apprentices. Lord Ashcroft of Belize claims that welfare reform is a vote-getter: that people want to see women like Rose Fernandez made homeless and lose her family, working mothers like Shanene Thorpe demonised, mentally ill and disabled claimants left destitute, and above all, “snooty” young women like Cait Reilly made to work for a living – unlike Lord Ashcroft, who has always preferred to have other people work for his living.
Workfare claimants aren’t the only people who don’t get paid minimum wage. Care workers usually don’t get paid minimum wage for all the hours they work. To say that people who are employed to care for the most vulnerable, elderly or learning-disabled or chronically ill, ought at minimum to get their legal pay per hour, would seem to be a basic means of improving standards of care.
Care workers lose out very directly too: it’s common for highly opaque remuneration systems to be used that, among other things, only pay per minute actually spent with clients, not the travel time between them. Dozens of these work-related journeys could be made each week – it’s a core part of the job. Not being paid for this time means those who care don’t get paid for a full day’s work (and this is before we consider the fact that it’s common not to get compensation for the cost of travel, the obligatory use of mobile phones, or the price of a criminal record check).
This is in clear breach of how the minimum wage is supposed to work in relation to travel time. It’s long been known, of course, that care is a low-pay sector, but until recently there has been only a very sketchy sense of the numbers receiving less than the minimum wage. Now an authoritative study by Dr Shereen Hussein, of King’s College London, estimates that there are between 150,000 and 220,000 care workers in this position. And this is using conservative assumptions – the real number could be higher.
No one, it seems – no local authority, no political party, no governing body – is interested in expending more money on what is regarded as the most fungible part of the care system: the care workers who actually wipe up the crap and make the meals and talk to their clients.
Part of the reason why there is no likelihood of care workers getting minimum wage for their hours is that they provide care for people without any political clout – Andrew Lansley could casually disrupt the schedule of the Care Quality Commission in order to go after health clinics hoping to save his Ministerial career – but also because front-line care staff are usually banned from going on strike both by union agreement and by simple practical ethics: they cannot simply walk away for even twelve hours from the people they are paid to care for and leave them helpless.
Everyone working in the UK has a right to join (or not join) a trade union. Your employer cannot treat you unfavourably because of your trade union membership or activities or because you used or wanted to use union services provided for members. (TUC)
But the right to strike is under attack.
Between November 2007 and February 2008, the Writers Guild of America went on strike. There are extensive links here, but in short: the corporations which make most of our TV and films have for some years been making their biggest profits from the home video/DVD market. A deal struck in 1985 when this was an “unproven” market gave the scriptwriter only a 0.3% share of the profits. The WGA wanted to double this to 0.6%. The Alliance of Motion Picture and Television Producers – a trade organisation of over 350 American film production companies and studios – refused, claiming 0.3% more for the scriptwriters was an unreasonable cut into of their profits, but eventually, the WGA went on strike and after four months they won their point.
The chief difference this made to anyone in the UK was probably that any season of their favourite shows made that year would have been truncated by about six episodes – season 5 of House MD is unusually short, and Hugh Laurie was very funny explaining why as an actor he supported the scriptwriters. (“Without them we’d just – garblegarblegrable”.)
But that’s one of the rare examples I can think of where a strike was reported respectfully and with little backbiting in the media. It wasn’t just that the WGA had clear justice on their side; most strikes do. It may have helped that it was a strike for a clearly understandable objective and the organisation against them was clearly being unreasonable. It may have helped that it was a strike that was both highly visible (“Wait a minute – where’s my next House MD episode?”) and it was completely impossible to spin it as causing real danger to anyone: no one ever died of frustration waiting to find out how Doctor House was going to diagnose someone next week.
But mostly, I think, it was a writer’s strike – a nice middle-class union, with polite and scarily articulate members – and the media reporting on it could find many photogenic celebrities who supported the strike and were able to explain why, even without a scriptwriter.
My father, grandfather, and great-grandfather were all union members: I am a union member myself, though I have mixed feelings about having ended up in Unite without ever actually getting to choose it as a union. (I joined the MSF in 1999: they merged with AEEU to become Amicus: Amicus folded itself into the TGEU and we all became Unite.) I lost a friend on Facebook because I posted a supportive comment about a strike, and the ex-friend would not stop (I asked her politely a few times) lecturing me on the evils of strike action and how terrible and tyrannical unions are. (I am a believer in confrontational argument, but also in quitting on request.) Recommended reads, whichever way you lean: a first-hand account of a strike in Dublin in 1994 that went badly and a heated debate on an American backpackers forum this May between pro- and anti-union members.
A letter in the Morning Star earlier this year:
Seeing me handing out free copies of the Morning Star in Lincoln’s Inn Fields on November 30, Dennis Skinner popped over to have a chat. During the course of the conversation I said that I thought he would have been in the House of Commons for Prime Minister’s Questions.
“There are pickets at the Commons,” he replied. “I never crossed a picket line in my life.”
Dennis may be a dinosaur in the lexicon David Cameron uses. Working-class hero and man of principle would describe him in mine. Morning Star, 27th January 2012
The right to strike is the right to legally withdraw your labour. A lawful strike is not a breach of a worker’s contract, it is a temporary suspension until the employer comes back to the negotiation table willing to listen to reason. This is not, however, how UK law perceives strikes. There is no legal right to strike in the UK. Anyone who goes on strike risks being fired. Only an official strike, called or endorsed by the employees’ union, gives workers who take part protection against immediate dismissal – their employer can’t fire them for taking part in the strike for 12 weeks after they return to work.
On 26th July, the eve of the Olympics, PCS union staff at the Home Office will go on strike. This is going to cause considerable logistical problems at that time: the PCS has union members in the UK Border Agency, the Identity and Passport Service and the Criminal Records Bureau. PCS general secretary Mark Serwotka said:
“The lives of staff have been made intolerable by these cuts and they’re at breaking point. Ministers have known about these issues for a very long time and need to act now to sort out the chaos they have caused. They’re acting recklessly in cutting so many jobs and privatising services, and are provocatively refusing to talk to us with a genuine desire to reach an agreement.”
Theresa May, who is responsible among other things for the G4S fiasco, has apostrophised the PCS strike – and plans for an overtime ban and work-to-rule over the Olympic Games – as “I think that is shameful, frankly” and urges the union workers to think of the people visiting Britain for the Games whose enjoyment may be hampered by strike difficulties at the UK Border Agency.
Among the people visiting the UK for the Games are temporary workers housed in portable cabins in Newham. Despite claims by LOCOG that all their workers were very happy, only one or two malcontents, anyone who wants work at the Games has been banned from giving feedback on their accommodation to reporters. Only those who have decided they can’t stick it and intend to go home are free to describe how
the site has been flooded and stagnant water lies on the ground, meaning the workers have had to resort to using old crates as makeshift ‘stepping stones’ to navigate through the camp site, it has been claimed.
Additionally the workers will apparently bed down in dormitories for 10 and share lavatories with 25 people – and a shower with a staggering 75 others.
The Daily Mail article reports that when the workers arrived they were horrified to be told that there would be no work for them in the first fortnight, and that they were forced to pay the cleaning company £18 every day – £550 a month – for the accommodation in the crowded cabins.
This is not, by Theresa May’s standards, “shameful”: after all, Craig Lovett, of Spotless International Services, recruited the workers from countries where they’d be really desperate for work:
Nobody is forced to stay there. Many of our staff have come from areas where there is extremely high unemployment and are very happy to be working in the Games.
Unions these days tend to be large. I have received ballots for strikes in my area that I wouldn’t be taking part in because although I am a Unite member, I work for a non-unionised charity where half the staff don’t belong to a union at all and those that do, all belong to different unions. We’ve never made a collective agreement for strike action or work to rule, and given the smallness of the organisation, the relative ease of communicating with the management, it seems unlikely that we’d ever have to.
At present, it is legal for a union to call a strike if a majority of those who voted are for it. What has been mooted is a change in the law to further restrict the right to strike: to make no strike legal unless it is voted for by a simple majority of the union membership.
George Eaton, writing in the New Statesman today:
Until now, ministers have insisted that they have “no plans” to change the law but today’s Telegraph reports that the government is “now considering legislation to stop unions striking unless more than half their members vote.” Aware that Boris Johnson, who has previously called for the introduction of a minimum turnout law, will seize any opportunity to outflank the coalition, Cameron may be tempted to indicate movement on this front.
Then there are those who will only be satisfied if the Prime Minister emulates Ronald Reagan and sacks anyone who participates in the strike. Conservative commentator Donal Blaney declared on Twitter: “Cameron should do a Reagan and fire every single immigration officer who strikes next Thursday. We need to face these selfish militants down”. It was in 1981 that the then US president fired 11,000 air traffic controllers who ignored his order to return to work.
During a British Airways strike on cost-cutting and job losses in March 2010, Keith Ewing reminded Labour (remember Labour?) that
The British government has been told by the international human rights community that it must relax the existing legal restrictions and stop treating a lawful strike as a breach (rather than a suspension) of the worker’s contract of employment. If our law met our international obligations, it would not be possible for bully boy Willie Walsh unilaterally to withdraw the travel perks of BA crew, as announced this week.
But more than that – international law requires us to allow workers and their unions to take solidarity and sympathy action to help fellow workers in dispute. It is, after all, one of the purposes of joining a union – mutual aid in times of need, though not in Britain. Just as Walsh is allowed to engage in secondary action by using other companies to carry his passengers, so (says the international human rights community) the union should have the right to call on other unions to put real economic pressure on BA by refusing to handle its planes.
Keith Vaz MP, the Labour chairman of the home affairs select committee, told The Daily Telegraph:
“This is the wrong thing to do at the wrong time. We are supposed to pull together and having looked at the way our borders operate the role of the PCS members is absolutely critical.”
But the question one may fairly ask is: If these staff are so essential, if their work is so critical, why are they suffering job cuts, pay cuts, and pension cuts such that they have to go on strike? If it’s so important that everyone “pull together”, why shouldn’t the UK Border Agency, as an employer, “pull together” with their staff to protect jobs and wages and pensions?
We know the answer to that. George Osborne has a theory that the UK economy will only recover if lots of public sector workers become unemployed, wages and pensions take a dive, and as many public services as possible are handed over to private companies to perform for profit. (For example, DWP plans for 80% of JSA claims to be processed online by 2013, and the contract for doing so is to be handed over to Capita in September.) Because G4S was such a success story, proving the Tory point that outsourcing public services to the private sector always works.
The only problem with George Osborne’s theory of economics is that even the IMF no longer believe it – and they are in general fiendish supporters of “austerity”. Actually, not the only problem – the other problem is that Osborne is still Chancellor of the Exchequer. And the other other problem is that David Cameron still thinks that welfare cuts and public spending cuts will win him the 2015 general election. But I digress.
At the moment, an employee’s only strong legal protection against an employer big enough to use economic clout against them, is the right to join a trade union and the hope that, in a country which restricts the right to strike below the international human rights standard, the union will step in to protect your rights. I’m not romantic about trade union capacity – read this heartbreaking post by “Eva James” about how Unite didn’t have time to call her back after she’d been bullied out of her job – but the fact is, the best thing an employee can do for themselves under most circumstances is to join, and use, a trade union for legal support against their employer.
In theory at least, the UK ratified the Universal Declaration of Human Rights decades ago, and signed up to the Council of Europe’s convention of human rights and fundamental freedoms. It often seems to have been forgotten that the right to work, the right to fair pay and decent working conditions, was laid down in 1948 as a universal human right. But it is not legally protected in the UK in any consistent way, except for the right to join a union and not be fired for legal trade union activities.
To take another current example, it’s been understood since at least 1998 that when a supermarket moves in, jobs and money move out:
“But the superstores create jobs!” was the mantra, churned out by the companies themselves and rarely challenged by the government, despite a 1998 report by the National Retail Planning Forum that found evidence the superstores had a negative net impact on employment up to 15km away.
It’s hardly rocket science. Your local butcher might well be less efficient than a supermarket, but he’s more likely to buy his meat from a local farm, use a local builder for maintenance jobs, and spend his profits in the local economy.
. But there is no legal way to use that fact against new supermarket developments nor against supermarkets gouging the farmers and other suppliers, no matter what that does to the price of their labour:
Take Emily and Rob Bradley, a young brother and sister who run a family farm on the Isle of Wight. They start milking at 4am and work until 6pm, cleaning, managing and feeding. Throughout the night they get up to check their herd of some 360 cows, looking out for calves and heifers that need support. For all this, buyers offer them 20p per litre.
“It’s disgusting how little we’re paid compared with the effort we put in,” says Rob, “The supermarket does almost nothing. . . most of the public don’t know what we have to do. Youngsters think milk is made in the shop.”
“We’ve spoken about whether we’re carrying on. We’re only just breaking even and we’ll be making a loss and going into debt if these price cuts continue. . . If it comes to it we’ll take direct action.”
So yes: I think it would be worthwhile – worth everyone’s while – to have sections 23-25 of the Universal Declaration of Human Rights explicitly endorsed by the Scottish Constitution, a constitutional reminder that we deserve better.
Index of all posts in the Scottish Constitution series
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