Alan Bogg has a grant from the Leverhulme Trust from October 2015 to September 2018
Freedom of association occupies a central position in the scheme of fundamental human rights. It is explicitly protected in general human rights instruments such as the European Convention on Human Rights (ECHR) and the Universal Declaration of Human Rights as a right of ‘everyone’. It is also identified as a right of special importance in normative orders that are concerned with labour rights, such as the International Labour Organisation (ILO) and the Council of Europe’s European Social Charter. In this guise, it is a fundamental right of trade unions and working people. Its longstanding theoretical importance as a right that straddles the division between ‘civil and political’ and ‘socio-economic’ rights has now been matched by its practical importance in the regulation of work. Across Europe, in Canada, and within the organs of the ILO itself, the scaling back of collective rights in response to a neoliberal economic orthodoxy is being contested by formulating workers’ and trade unions’ claims in terms of their ‘freedom of association’. It represents a trend towards the ‘juridification’ of political claims in labour law, and the increasing use of constitutional and rights-based arguments as an alternative to political change through more traditional democratic or voluntary channels.
This research project aims to undertake a comprehensive philosophical and comparative examination of the concept of freedom of association. The project has three dimensions. The first task is to elucidate ‘freedom of association’ from a conceptual and normative perspective. In so doing, it will provide a theoretical framework that identifies the underlying value(s) of freedom of association; the relationship between freedom of association as a human right and freedom of association as a labour right; the complex configuration of rights, liberties and powers that go to make up the composite idea of freedom of association; and the nature of the distinction between ‘collective’ and ‘individual’ elements of freedom of association.
The second task is to provide a comparative examination of different national legal systems and the variety of ways in which ‘freedom of association’ is operationalised in those systems. Sometimes legal systems have adopted a highly constitutionalised approach to freedom of association, as in Canada, where the Supreme Court of Canada has handed down a series of momentous decisions over the last five years that have expanded the collective content of the Charter’s abstract freedom of association guarantee. In other countries, such as Australia, the role of constitutional litigation is minimal, with ‘freedom of association’ treated as subject to comprehensive statutory regulation and within the conventional locus of legislative rather than judicial politics. The UK occupies an intermediate position, where expansive judgements of the European Court of Human Rights under Article 11 have had only a marginal impact on the regulatory framework of collective labour law. A selected group of comparator countries will be identified to facilitate an exploration of the diverse ways in which freedom of association has been approached in different political and economic contexts. This comparative study will move beyond a study of case law and other legal materials, and assess the political and industrial relations context to different legal strategies to protect freedom of association. There is no assumption that bold decisions of higher courts necessarily translate into real freedoms for trade unions and working people.
The third task is to consider the phenomenon of ‘fragmentation’ and ‘decentring’ in respect of freedom of association as a core labour right. The growing significance of freedom of association as a strategy of legal mobilisation, particularly at the transnational level, has led to a proliferation of regimes and institutions adjudicating upon alleged freedom of association violations. Sometimes different legal regimes have sought to harmonise their standards on freedom of association, though there are also striking examples of fragmenting normative standards on freedom of association. This has been matched by a growth in the significance of voluntary codes of practice whereby multinational companies signal respect for freedom of association and other core labour rights, with a multiplicity of different enforcement mechanisms. This has led to a ‘decentring’ of normative activity where those voluntary standards are detached from international norms. The research project will examine these twin dynamics of fragmentation and decentring in respect of freedom of association, and it will consider the prospects for the unity of international labour law with ILO standards occupying a position of elevated authority in the international legal order.