Memorandum from Professor Gillian Morris,
Brunel University and Matrix Chambers
I have been asked to comment briefly on the
legal issues that arise from the Draft Civil Contingencies Bill.
I have particular expertise in the field of strikes in essentials
my comments focus on this area and on differences between the
Bill and the Emergency Powers Act 1920. This should not be interpreted
as a lack of concern about some wider aspects of the Bill. I would
be happy to elaborate on any of the points made below in outline
on request. In summary, I consider that the definition of an "emergency"
adopted in the Bill is unduly wide for the purposes of industrial
disputes and permits powers to be taken which may be disproportionate
where industrial action is of limited impact or duration. It would
be preferable for industrial action in essential services to be
the subject of separate legislation. The Bill also fails to give
practical effect to the government's declared intention to prohibit
the use of regulations to prevent strike action (Consultation
Document, para 28).
I. THE DEFINITION
1. CONTINGENCY PLANNING
Part 1 requires persons or bodies listed in
Part 1 of Schedule 1, inter alia to assess the risk of
an "emergency" as defined in clause 1 occurring and
to maintain plans to ensure that if the emergency occurs the person
or body can continue to perform his or its functions, which may
include provision for staff training and for functions to be contracted-out.
This includes emergencies occasioned by industrial action.
The Government intends the definition of "emergency"
to include a wide range of possible events or circumstances (Consultation
Paper, paragraph 11). In the context of industrial action it goes
well beyond what is generally recognised as an "emergency
dispute". For example, clause 1(2)(h) refers to the disruption
of "medical, education or other essential services".
Education services are not regarded as "essential" in
international labour law; the term "other essential services",
particularly as it follows this non-essential service, is very
difficult to interpret. The International Labour Organisation
("ILO") defines essential services as those whose interruption
would threaten the life, personal safety or health of the whole
or part of the population. If some form of extending provision
is required in clauses 1(2)(h) and 1(2)(e) this would be an appropriate
definition to adopt. The ILO definition has been formulated in
the context of permissible restrictions on the right to strike.
However emergency measures, in particular the provision of replacement
labour, can have the practical effect of negating the impact of
industrial action and to that extent need to be considered in
the context of the freedom to withdraw labour.
Further aspects of the definition to be noted
(1) there is no consideration given as to
the availability of alternative facilities to those disrupted,
eg in the transport and communications sectors;
(2) there is no attempt to distinguish between
essential and non-essential functions in relation to what may
constitute threats to "political, administrative or economic
stability" as defined in clause 1(4) (a definition which
itself is not exhaustive). A serious threat of disruption to a
non-essential government activity or public function would be
within the definition;
(3) no account is taken of the duration
of disruption, which may be an important factor when considering
whether industrial action occasions an emergency.
These points are also reflected in the terms
of clause 2.
Clause 5 may raise (without resolving) the difficult
issues of whether the police can be legally required to act as
substitute labour for other groups (they have in past disputes
replaced striking ambulance staff) and whether it is constitutionally
appropriate for them to do so.
II. THE DEFINITION
2: EMERGENCY POWERS
The points in I apply equally to the definition
of emergency in Part 2. In this context the definition is even
more open-ended in that clause 17(2) is not exhaustive.
Clause 24(7) reflects the Emergency Powers Act
1920 in linking the continuation of Regulations to the date that
they are laid before Parliament, but does not provide a safeguard
in the event of a failure to lay.
Clause 24(8) would allow Regulations to be made
on a continuous basis without Parliamentary approval.
The Emergency Powers Act 1920 provides that
regulations may be "added to, altered, or revoked by resolution
of both Houses of Parliament" (s.2(4)). There is no such
provision in the Bill. Technically it seems that emergency regulations
under the 1920 Act are not statutory instruments because the 1920
Act excluded the application of the Rules Publication Act 1893
(see Statutory Instruments Act 1946, s1(2)), although in practice
they have been numbered and printed as such. The Committee may
wish to consider whether it is appropriate for Regulations to
be made by statutory instrument (clause 27) in the light of the
constraints this places on their amendment.
Clause 21(4)(b) is wider than the Emergency
Powers Act 1920 in referring specially to "other industrial
action" as well as a "strike". However that Act
also provides that Regulations may not make it an offence peacefully
to persuade others to strike, a provision omitted in the Bill.
In providing that Regulations may not enable
the prohibition of industrial action Clause 21(4)(b) probably
prevents Regulations being used to curtail the statutory immunities
that protect those who organise industrial action against liability
in specified torts. However
Regulations may create new forms of statutory duty (see, for example,
clause 21(3)(k)). The organisation of industrial action that impeded
the performance of those duties (inducing breach of a statutory
duty) could give rise to forms of civil liability that are outside
the scope of the statutory immunities that protect those who organise
industrial action. It should be made clear in the Bill that the
Regulations cannot give rise to these forms of liability.
Clause 21(4)(b) does not prevent changes to
individual employment rights, such as the unfair dismissal protection
afforded to employees for taking "protected industrial action"
or the preservation of continuity of employment for those who
take part in a strike. Provision
should be made to ensure that these changes cannot be made under
clause 21(3)(j). The exclusion of civil liability based on inducement
to breach a statutory duty, referred to above, is also important
in the context of individual rights; industrial action is "protected"
only if the employee was induced to take it by an act which is
not actionable in tort because of the statutory immunities.
Finally, clause 21(3)(f), in permitting the
prohibition of assemblies of specified kinds, at specified places
or at specified times would enable a ban on picketing outside
a workplace. Peaceful picketing within the general law (which
itself is highly restrictive) should be exempted from this provision.
Approaches to emergencies occasioned by industrial
action need to be approached in a distinctive way because of their
relationship with the fundamental freedom to withdraw labour and
because of the politicised nature of many such disputes. On six
of the 12 occasions that the Emergency Powers Act 1920 has been
invoked the Government had an interest in the terms on which the
dispute was settled, either directly or because the survival of
an incomes policy was at stake. This Bill enables the consequences
of industrial action to be mitigated in a much wider range of
industries and services, in many of which the Government may have
an interest as direct or indirect employer.
Other systems have dealt with industrial action
in essential services by establishing an independent body that
can determine what levels of service should be maintained by workers
during disputes, having due regard to the nature of the action,
its duration, the provision of alternative sources of supply,
and other relevant factors. Alternative methods of dispute settlement
in essential services, such as independent arbitration, are another
option. It should be noted that emergency powers are not always
the answer; there remain services where the provision of appropriately
substitute alternative labour would be very difficult to organise.
It would be preferable to remove disruption due to industrial
action from the purview of this Bill and to consider in an integrated
fashion the distinctive issues that it raises. In the event that
this is incompatible with government policy, a more limited definition
of essential service should be adopted in this context to comply
with international standards and appropriate practical safeguards
for the freedom to withdraw labour should be inserted in the Bill.
42 Publications relating to this area include Strikes
in Essential Services, Mansell, 1986; "Industrial Action
in Essential Services: the New Law" (1991) 20 Industrial
Law Journal 89 and "Industrial Action in Essential Services:
The English Experience" in Strikes and Essential Services,
ed Jean Bernier, University Press of Laval, 1994. Back
Trade Union and Labour Relations (Consolidation) Act 1992, s219. Back
Ibid., s238A. Back
Employment Rights Act 1996. s216. Back