Joint Committee on Draft Civil Contingencies Bill Written Evidence

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 services, [42]and 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).


  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 are:

  (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.


  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. [43]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"[44] or the preservation of continuity of employment for those who take part in a strike. [45]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

43   Trade Union and Labour Relations (Consolidation) Act 1992, s219. Back

44   Ibid., s238A. Back

45   Employment Rights Act 1996. s216. Back

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