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Labour Law and Human Rights: Legal and Philosophical Perspectives

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Labour Law and Human Rights: Legal and Philosophical Perspectives Labour Law and Human Rights: Legal and Philosophical Perspectives _________________________________________________________________ Joe Atkinson A thesis submitted for the degree of Doctor of Philosophy University College London, Faculty of Laws 1 Declaration ‘I, Joe Atkinson, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis.’ 2 Abstract There is a widespread belief that labour law is amid a protracted existential crisis, in part caused by uncertainty over the discipline’s justification and normative foundations. Against this background, the purpose of this thesis is to examine human rights as potential foundations for labour law and deepen our understanding of the relationship between labour law and human rights. It argues that human rights are an important justificatory idea for labour law and provide a normative benchmark and moral standard that can be used to evaluate existing legal frameworks and guide reforms. In developing this claim, the thesis first identifies a ‘normative gap’ in labour law’s traditional justificatory narrative, which is rooted in the idea of counteracting employees’ unequal bargaining power, and suggests that a pluralistic approach be pursued to filling this normative gap. It then argues that a normative and philosophical approach must be adopted to fully understand the relationship between human rights and labour law, with a specific philosophical conception of human rights being adopted as the basis for the analysis. A theory of human rights is then set out and used to identify the normative implications of human rights for labour law. Under this theory, workers’ human rights must be legally protected against employer infringements, and legal frameworks must be established to secure decent working conditions for all, as well as mechanisms that enable workers to exercise voice and make themselves heard. Finally, the thesis demonstrates how human rights theory can be operationalised to assess existing labour law rules, by scrutinising the reforms introduced by the Trade Union Act 2016 from philosophical and legal human rights perspectives. In sum, the thesis demonstrates that human rights are an important foundational perspective for labour law and can provide a philosophical framework to address pressing issues facing the discipline. 3 Impact Statement This thesis represents the first sustained examination of the relationship between labour law and human rights from a normative and philosophical, as well as legal, perspective. It significantly deepens existing academic understanding of the relationship between labour law and human rights, and clarifies the role that human rights can play in justifying and providing a foundational perspective for labour law. It is hoped the thesis will have significant impact in academia, and open new avenues for future research, by demonstrating how a philosophical human rights perspective can be used to evaluate existing legal frameworks and address pressing issues facing labour law. By demonstrating how human rights theory can help provide coherent and convincing normative foundations for labour law the thesis also equips labour lawyers with an important response to ideological and de-regulatory critiques of labour law. This thesis also has the potential to impact outside of academia. By clarifying and highlighting the values that underpin labour law, the argument developed in this thesis can help guide the courts’ interpretation and application of the law, particularly in cases where they are assessing the proportionality of existing legal frameworks. By providing a normative benchmark and moral standard by which existing labour law frameworks can be evaluated, this thesis also provides a tool by which policymakers can identify areas of law which fail to meet this threshold and are therefore in need of reform. More specifically, the analysis of the Trade Union Act 2016 from a human rights perspective may be useful for trade unions or NGOs considering bringing a human rights challenge to this legislation. I intend to maximise the impact of this thesis by disseminating the arguments via workshops, conference presentations, articles and, possibly, a monograph. I will also engage with policy makers, trade unions and think tanks who are working on labour law issues to advocate for adopting a human rights approach to their work, and seek opportunities for collaboration. In doing so I hope to bridge the gap between academia and legal practice. 4 Acknowledgments First, I am grateful to Professor Virginia Mantouvalou and Professor George Letsas for their invaluable guidance and mentorship; I could not wish for better supervisors or academic role models, and I am proud to be their student. I am especially grateful to Virginia for her belief in me and my work, and for her insightful comments and feedback which have improved this thesis in countless ways. I also owe thanks to Professor Hugh Collins for sparking my interest in labour law and human rights, for supervising the LLM project that this research grew out of, and for his continued support and feedback. I am very grateful to Professor Cynthia Estlund for hosting me as a visiting researcher at NYU School of Law, and to my colleagues at the University of Sheffield for their support during the final stages of this project. Thanks are due to the academic community at UCL, which provided an inspiring and intellectually enriching environment within which to conduct this research. I would particularly like to thank the following friends and colleagues for their comments and feedback on my work, as well as for conversations on law, philosophy, and life in general: Caspar Bartscherer, Conor Crummey, Hitesh Dhorajiwala, Eleni Frantziou, Allie Hearne, Jeff King, Nicola Kountouris, Ira Lakhman, Maria Lee, Daniella Lock, Ronan McRea, Simon Palmer, Niko Pavlopoulos, Lea Raible, Sara Razai, Natalie Sedacca, Silvia Suteu, Inga Thiemann, Eugenio Velasco, and Steven Vaughan. I need to thank my parents and my sister for their encouragement and support, as well as for giving me my intellectual curiosity and sense of justice. Again, I could not wish for better role models. I also want to thank my friends outside of law and academia, for providing a much- needed respite from the PhD and reminding me what life in the so-called ‘real world’ is like. Finally, I am immeasurably grateful to my wife, Jess, for her support and putting up with my doubts and worries, for reading and discussing my work, and a million other things; without her I would never have started this journey, much less completed it. 5 Contents ABBREVIATIONS 9 CHAPTER 1: INTRODUCTION 11 1. WHY HUMAN RIGHTS? 13 2. HUMAN RIGHTS WITHIN A PLURALISTIC VISION OF LABOUR LAW 16 3. THE NEED FOR FOUNDATIONS 18 4. METHOD 21 5. OUTLINE OF THE THESIS 24 CHAPTER 2: THE TRADITIONAL NARRATIVE 29 1. INTRODUCTION 29 2. LABOUR LAW’S TRADITIONAL NARRATIVE 30 2.1 Inherent conflict between employer and worker 32 2.2 Inherent inequality of bargaining power 33 2.3 Labour law as a necessary countervailing force 38 3. MIND THE (NORMATIVE) GAP 40 3.1 Realigning labour law’s foundations 41 3.2 Reinvigorating labour law’s foundations 43 3.3 Revisiting the normative underpinnings of the traditional narrative 45 4. INADEQUACY OF THE TRADITIONAL NARRATIVE 51 4.1 Descriptive inaccuracy 51 4.2 Normative inadequacy 55 4.3 The need for pluralistic foundations 58 5. CONCLUSION 60 CHAPTER 3: HUMAN RIGHTS AND LABOUR LAW 62 1. INTRODUCTION 62 2. HUMAN RIGHTS AS POTENTIAL FOUNDATIONS FOR LABOUR LAW 65 2.1 Links between human rights and labour law 66 2.2 Potential benefits 74 3. THE TROUBLED RELATIONSHIP BETWEEN LABOUR LAW AND HUMAN RIGHTS 77 3.1 Parallel tracks 78 3.2 Potential problems 82 4. CONCLUSION 89 6 CHAPTER 4: HUMAN RIGHTS AND ENGLISH LABOUR LAW 91 1. INTRODUCTION 91 2. PROTECTION OF WORKERS’ CIVIL LIBERTIES 93 2.1 European human rights law 94 2.2 Domestic human rights law 100 2.3 General legislative and private law protections 109 2.4 Conclusion 114 3. HUMAN RIGHTS AS A FOUNDATIONAL PERSPECTIVE 114 3.1 English labour law 115 3.2 European Convention of Human Rights 118 3.3 European Union 130 3.4 Conclusion 139 4. THE NEED FOR A NORMATIVE APPROACH 140 4.1 Approaches to labour law and human rights 141 4.2 The need for a normative philosophical approach 143 5. CONCLUSION 146 CHAPTER 5: HUMAN RIGHTS AS NORMATIVE FOUNDATIONS OF LABOUR LAW 148 1. INTRODUCTION 148 2. THE CURRENT DEBATE ON HUMAN RIGHTS AS NORMATIVE FOUNDATIONS 149 2.1 Objections to human rights as foundations 149 2.2 The need to focus on specific theories of rights 156 3. THEORIES OF HUMAN RIGHTS AND LABOUR LAW 159 3.1 Political theories 161 3.2 Naturalistic theories 169 4. CONCLUSION 178 CHAPTER 6: A THEORY OF HUMAN RIGHTS 181 1. INTRODUCTION 181 2. CHOOSING A THEORY 182 3. A THEORY OF HUMAN RIGHTS 187 3.1 Human rights as moral rights 190 3.2 Human rights as a sub-set of moral rights 200 3.3 Conclusion 210 4. CONTENT OF HUMAN RIGHTS 211 4.1 Duties to respect, protect and fulfil 212 4.2 Allocating duties 219 7 4.3 Resolving conflicts 222 5. HUMAN RIGHTS AND THE LAW 226 5.1 No inherent legal or political functions 226 5.2 Legal protection of human rights 228 6. CONCLUSION 232 CHAPTER 7: IMPLICATIONS OF HUMAN RIGHTS FOR LABOUR LAW 235 1. INTRODUCTION 235 2. THE NEED TO PROTECT HUMAN RIGHTS AT WORK 237 2.1 Employer human rights duties 238 2.2 State human rights duties 246 3. FOUNDATIONS FOR LABOUR LAW 250 3.1 Human rights and decent working conditions 252 3.2 Human rights and worker voice 268 4. CONCLUSION 288 CHAPTER 8: HUMAN RIGHTS AND THE TRADE UNION ACT 2016 291 1.
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