THE RIGHT TO ASSOCIATE IN TRADE UNIONS
This chapter is concerned with the extent to which individuals have a bare right, guaranteed by the State, to form or join a trade union and, conversely, whether individuals have a right not to be forced to associate in a trade union. Unlike the position in many other countries in Europe, the lack of a written constitution or Bill of Rights in the UK means that the civil rights of individuals are not protected by a system of positive rights enshrined in a form of ‘higher law’. Rather than a right to organise, workers have a liberty to organise, which may be freely exercised subject to restrictions imposed by the civil or criminal law. As we saw in the historical introduction in Chapter 1, freedom to organise has existed since the 19th century, with the Combination Act 1825 permitting a bare association of workers, and with the common law civil restrictions on the formation of trade unions – restraint of trade – repealed in 1871. This was followed in 1875 by the repeal of the remaining criminal provisions on association.1 Thus, by 1875, both civil and criminal legal obstacles to trade union formation or membership had been removed.