Tag: Joint Committee on Human Rights

Strikes Bill fails to meet human rights obligations – JCHR report

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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Human Rights at Work inquiry

Westminster’s Joint Committee on Human Rights has launched a new inquiry to examine how human rights are protected at work.

Work is a central aspect of people’s live as it often provides their principal source of income and can provide a sense of purpose. Employment can also contribute to an individual’s feelings of self-respect and dignity. However, the world of work has also been recognised as involving an imbalance of power between employer and workers This imbalance can lead to exploitation, discrimination and other harmful practices.

States have an obligation to protect workers from breaches of their human rights. This can include ensuring employers don’t interfere with their worker’s freedom of association, for example by preventing them from joining a trade union. States also have an obligation to ensure workers aren’t subject to surveillance and workplace monitoring that amounts to a breach of their right to private and family life.

There are a large number of laws and regulations that protect rights at work. This inquiry will specifically look at how the universal protections guaranteed in the European Convention on Human Rights apply to the world of work and the rights of workers.

The Committee is undertaking a separate piece of work providing legislative scrutiny of the Strikes (Minimum Service Levels) Bill.

Committee Chair Joanna Cherry KC MP said: “Employment often has an inherent power imbalance that can leave workers vulnerable to exploitation or discrimination. There is an obligation on the Government to ensure that there is a comprehensive framework in place that ensure the rights enshrined in the European Convention on Human Rights are protected at work.

“The Joint Committee on Human Rights has launched this inquiry to understand how rights are currently protected at work and pinpoint where greater safeguards may be needed.”

Terms of reference

The Committee invites written evidence on the following questions. The deadline for submitting written evidence is 24 March 2023.  Please note, your submission does not need to address every question in the terms of reference. 

Find out how to submit evidence here.

Freedom of association and the right to strike

Does the current law effectively protect the rights of trade unions and workers to take industrial action under Article 11 ECHR? Does the law effectively protect the right to strike for the purposes of other international human rights instruments, such as the International Covenant on Civil and Political Rights and the International Labour Organisation Conventions?

The right to privacy and surveillance at work

  • What forms of surveillance, if any, that are used to monitor workers raise concerns under Article 8 of the European Convention on Human Rights (right to private and family life)? Are there any associated concerns under Article 14 (freedom from discrimination)?
  • What is the legal framework in the UK that governs surveillance in the workplace?
  • Where surveillance is used to monitor workers, does the current legal framework adequately protect their Article 8 right to private and family life? If not, what changes need to be made to ensure it does?

Freedom of thought, conscience and religion and freedom of expression in the workplace

  • Does domestic law strike the right balance between workers’ Article 9 right to freedom of religion or belief and the rights of employers? If not, what changes are needed?
  • Does domestic law strike the right balance between workers’ Article 10 right to freedom of expression and the rights of employers? If not, what changes are needed?
  • Does domestic law provide adequate protection for the rights of workers to be free from harassment at work by third parties on account of their religion or beliefs?

Labour market exploitation

  • What is the current legal and policy framework for tackling labour exploitation in the UK? Is that framework effective to protect workers’ rights under Article 4 ECHR, which prohibits slavery, servitude and forced or compulsory labour?
  • Are there any improvements that could be made to better tackle exploitative labour practices which are contrary to Article 4 in the UK?
  • Do workers from particular groups or in precarious employment disproportionately experience labour market exploitation? Does this raise concerns under Article 14 ECHR (freedom from discrimination)?

Retained EU Law and workers’ rights

  • To what extent is the UK’s compliance with its human rights obligations, in relation to the protection of workers, currently dependent on retained EU law?

International human rights treaties

  • Does the UK effectively comply with its international obligations to protect workers’ rights under the International Covenant on Civil and Political Rights, International Covenant on Economic and Social Rights, and International Labour Organisation Conventions? If not, what improvements should be made?

Closing date for written submissions is 24 March 2023. 

Submit written evidence here.

Every Fixed Penalty Notice issued under coronavirus regulations ‘must be reviewed’

A cross-party committee of MPs and Peers says fixed penalty notices (FPNs) – which can be as much as £10,000 – are muddled, discriminatory and unfair.

Today’s report from the Joint Committee on Human Rights calls for:

  • comprehensive review of all FPNs which have been issued
  • a mechanism to challenge new FPNs
  • a decision that no criminal record should result from covid-19 FPNs
  • an assessment of income for big fines.

In The Government’s Response to covid-19: fixed penalty notices, the Committee sets out significant concerns about the validity of FPNs, the inadequacy of the review and appeal process, the size of the penalties and the criminalisation of those who cannot afford to pay.

More than 85,000 fixed penalty notices have been issued to people in England and Wales said to have broken covid-19 laws on restrictions since March 2020. FPNs allow people to pay a penalty instead of facing prosecution and a potential criminal record.

Penalties range from £200 for the failure to wear a face covering to £10,000 for organised gatherings offences.

It is possible to tell from penalties that have not been paid and have then progressed through the system towards a prosecution, that a significant number of FPNs are incorrectly issued.

A Crown Prosecution Service review of prosecutions brought under coronavirus Regulations that reached open court in February 2021, found that 27 per cent were incorrectly charged. Many more penalties may have been paid by people too intimidated by the prospect of a criminal trial to risk contesting their FPN through a criminal prosecution.

The high rates of error and the disproportionate impact on different groups in society are concerning and the Committee suggests a more graduated approach and consideration of removing these convictions from criminal records.

With no adequate mechanism to seek a review of an FPN other than through a criminal prosecution, the risk that breaches of human rights will not be remedied is significantly increased. The Committee says the current review processes are not clear, consistent or transparent and calls on Government to introduce a means of challenging FPNs by way of administrative review or appeal.

Regulations related to coronavirus restrictions have changed at least 65 times since March 2020, providing obvious challenges for police. Far more must be done by Government and police to ensure officers understand the Regulations they are asked to enforce, says the report.

This is crucial to ensure there is no punishment without law (Article 7, ECHR) and no unjustified interference with an individual’s right to family and private live (Article 8, ECHR). The Committee calls on the National Police Chiefs Council to undertake a review to understand why police are issuing so many incorrect FPNs and to take steps to correct this.

However, in respect of offences relating to potentially infectious persons under the Coronavirus Act 2020, which hasn’t changed since March 2020, the Committee’s report says it is ‘astonishing’ that the Coronavirus Act is still being misunderstood and wrongly applied by police to such an extent that every single criminal charge brought under the Act has been brought incorrectly.

The Committee says there is no reason for such mistakes to continue.

The Chair of the Joint Committee on Human Rights, Harriet Harman MP, said: “Swift action to make restrictions effective is essential in the face of this terrible virus. But the Government needs to ensure that rules are clear, enforcement is fair and that mistakes in the system can be rectified. None of that is the case in respect of covid-19 Fixed Penalty Notices.

“The police have had a difficult job in policing the pandemic. We hope that their initial approach – to engage, explain and encourage before issuing fixed penalty notices will continue. However, since January there have been greater numbers of FPNs as police move more quickly to enforcement action, and because of a lack of legal clarity, likely greater numbers of incorrectly issued FPNs.

“This means we’ve got an unfair system with clear evidence that young people, those from certain ethnic minority backgrounds, men and the most socially deprived are most at risk.

“Whether people feel the FPN is deserved or not, those who can afford it are likely to pay a penalty to avoid criminality. Those who can’t afford to pay face a criminal record along with all the resulting consequences for their future development. The whole process disproportionately hits the less well-off and criminalises the poor over the better off.

“And once again, this Committee is calling on the Government to distinguish clearly between advice, guidance and the law. Fixed penalty notices were originally designed to deal with straightforward matters of law – easily understood by all involved. But our inquiry has demonstrated is that coronavirus Regulations are neither straightforward nor easily understood either by those who have to obey them or the police who have to enforce them.

“With fixed penalties of up to £10,000 awarded irrespective of the individual’s financial circumstances, there is much at stake. The Government needs to review the pandemic regulations and create new checks and balances to prevent errors and discrimination.”

The UK Government has robustly defended it’s stance and says it will continue to support police efforts to enforce legislation.