On 13 July 2023, the High Court handed down its decision in R (Aslef) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin) in which it held that the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (2022 Regulations) were unlawful following a challenge brought by eleven trade unions, coordinated by the TUC and the TUC affiliated unions, NASUWT and UNISON (see FC Feature 20 September 2022).
The 2022 Regulations came into effect on 21 July 2022 and revoked regulation 7 Conduct of Employment Agencies and Employment Businesses Regulations 2003, which had previously made it a criminal offence for employment agencies to supply businesses with employees to replace those taking part in strike action. The trade unions contended that the regulations were unlawful as there was no consultation between the then Secretary of State for BEIS and the unions, as required under s 12(2) Employment Agencies Act 1973 (1973 Act), and that the regulations themselves violated fundamental trade union rights protected by Article 11 (Freedom of assembly and association) European Convention on Human Rights.
Applying the principles set out in R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR, the High Court concluded that the Secretary of State had not fulfilled the duty to consult under s 12(2) 1973 Act. In particular, Linden J rejected the argument that the Secretary of State was entitled to rely on a public consultation on government proposals to revoke regulation 7 that had taken place in 2015 (2015 Consultation), finding that even if such reliance was sufficient to discharge the duty under s 12, the Secretary of State had not in fact relied on the responses to that consultation, the majority of which had been against the proposals to reform the law. On the facts, the Secretary of State's judgment about whether regulation 7 should be revoked was not "informed by, or tested against, the views and the evidence of bodies which were representative of the interests concerned, not even the views of such bodies which were expressed in 2015." The aims and requirements of s 12(2) were not fulfilled because there was no consultation with such bodies by him or, indeed, any other Secretary of State before he made his decision.
The claim having succeeded on this basis, the High Court was not required to consider the lawfulness of the Secretary of State's decision not to consult further. However, Linden J noted that he considered that the Secretary of State had failed to comply with s 12(2) 1973 Act for a number of reasons, including with respect to the decision not to consult further, and would have done so even if he had conscientiously considered the responses to the 2015 Consultation. The court having concluded that the 2022 Regulations were unlawful and ordering that they be quashed, declined to express a view in respect of the second ground as to whether the 2022 Regulations violated fundamental trade union rights under Article 11 ECHR.
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