UK Government plans to impose minimum service levels on public services during strike action are likely to be incompatible with human rights law in their current form, the Joint Committee on Human Rights has found.
In a report published following legislative scrutiny of the Strikes (Minimum Service Level) Bill, the Committee finds that reforms that would make it easier to sack striking workers and leave unions at risk of million-pound fines do not appear to be justified and need to be reconsidered. The Committee finds that it would be possible to introduce minimum service levels in some sectors in a way that is more likely to be compliant with human rights law.
While the European Convention on Human Rights does not include a ‘right to strike’, Article 11 which guarantees freedom of association has been interpreted to cover the taking of strike action. This requires that any restrictions on strike action must be “in accordance with the law”, which requires its consequences to be foreseeable to those affected. Changes to the law must also meet a “pressing social need” and be proportionate to the aim being pursued.
The Joint Committee finds that the Government’s Bill risks failing to meet these benchmarks in its current form. Ahead of the Committee Stage in the House of Lords on 9 March, it has called on the Government to reconsider the legislation and ensure it meets the UK’s human rights obligations. The draft report includes five proposed amendments to the Bill intended to rectify key concerns.
The Government brought forward the Strikes Bill in response to growing industrial unrest and strikes in a number of sectors, including transport, health and education. It has argued that legislation is needed to provide greater protection to the lives and livelihoods of those that may be disrupted by industrial action in key public services.
The Bill would allow ministers to set minimum service levels on public and private services subject to strike action. The employer would then be given the power to issue a ’work notice’ to a trade union, identifying who will be required to work and the work needed to meet the minimum service level.
Individual employees who failed to comply with a work notice would lose legal protections against dismissal. Trade unions who failed to take steps to ensure notices were complied with could be required to pay damages of up to £1 million.
The Joint Committee warns that the Government has not made a compelling case that such measures are necessary and finds that the Bill as drafted contains inadequate protection against arbitrary use and is unclear.
Under the European Convention on Human Rights, restrictions on strikes must meet a ‘pressing social need’. However, the Government has not proven that existing strike laws and voluntary minimum service levels are insufficient across all the sectors identified in the Bill.
Claims that strike action in the sectors named in the Bill has caused significant and disproportionate damage to the public and wider economy have not been backed up with sufficient evidence, with the Government providing supporting data for the costs of previous transport strikes only.
Measures that interfere with the right to free association must be proportionate. This is more likely to be achieved if minimum service levels are established though negotiation and disputes resolved through independent arbitration. The Government has previously accepted that such an approach would work, in the Transport Strikes Bill introduced in October. The Bill, which would abandon this in favour of the Secretary of State imposing minimum service levels by regulations, risks failing to meet the requirement of proportionality.
Penalties for employees and unions who don’t meet the Bill’s requirements are high and potentially disproportionate, the Joint Committee finds. It calls on the Government to reconsider whether less severe measures would be more appropriate, particularly where a strike does not involve essential services. Existing penalties, such as loss of pay or suspension would be more appropriate in such cases.
The Bill has insufficient clarity in several key areas, the Joint Committee finds. Trade unions would be required to take ‘reasonable steps’ to ensure their members comply with a work notice, however the Bill does not provide sufficient detail to ensure they will know when this duty has or has not been met.
The definitions of the services in respect of which minimum service levels could be imposed are currently too vague, meaning that ‘education services’ could include private tutors and ‘transport services’ private taxi drivers.
Chair of the Joint Committee on Human Rights, Joanna Cherry KC MP said: “The Strikes Bill will be debated in the House of Lords this Thursday and needs amending to resolve some of the deep flaws it has.
“If this proposed legislation becomes law in its current form, ministers would have the power to set minimum service levels that would leave striking workers at risk of the sack if they are not met, and unions liable to million-pound fines. Yet, the Government has not proven that such draconian measures are needed or that the current framework is inadequate.
“Heavy-handed sanctions are compounded by vague rules that would leave striking workers and unions in confusion as to whether they had been met or not. The sectors included in the Bill are also ill-defined, risking over-reach into areas only tangentially linked to the maintenance of vital public services. This means the Bill, in our view, is likely to be incompatible with human rights law which provides a right to association and with it, protection for strike action.
“The Government needs to think again and come back with legislation that better respects the protections guaranteed by the European Convention on Human Rights.”
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