This is a House of Commons Committee report, with recommendations to government. The Government has two months to respond.
Joint Committee on Human Rights
Legislative Scrutiny: Strikes (Minimum Service Levels) Bill 2022–2023
Date Published: 6 March 2023
This is the report summary, read the full report.
The Strikes (Minimum Service Levels) Bill (the Bill) has been introduced by the Government against a background of increased industrial action. The Government says that the legislation is necessary to deliver minimum service levels to ensure that lives and livelihoods are not lost in key public policy areas of health, education, fire and rescue, transport, border security and nuclear decommissioning.
Our concern is whether the Bill is compatible with the UK’s human rights obligations, most notably the European Convention on Human Rights (the ECHR), which is given effect in domestic law through the Human Rights Act 1998. Article 11 ECHR provides a qualified right to freedom of assembly and association. Whilst Article 11 does not expressly refer to the “right to strike”, it has been interpreted by the European Court of Human Rights (ECtHR) to cover the taking of strike action. The ECtHR has referred to the requirements set down by the International Labour Organisation when assessing compliance with Article 11. In addition, a qualified right to strike is provided by Article 8 of the International Covenant on Economic, Social and Cultural Rights, and Article 6 (4) of the European Social Charter, both of which bind the UK in international law.
Compliance with Article 11 of the ECHR requires that any restrictions on strikes are “in accordance with the law” which includes a requirement that the consequences of the law must be foreseeable for those it affects. The restrictions must also be “necessary in a democratic society” to meet a “legitimate aim”. This condition requires the restrictions to meet a “pressing social need” and for them to be “proportionate to the legitimate aim pursued”.
The Bill gives a wide new power to the Secretary of State to make “minimum service regulations” providing for levels of service where there are strikes in six broad sectors. Where minimum service regulations have been made, employers will have the power to give a “work notice” to a trade union in relation to a strike. A work notice must identify the persons required to work, and the work required to be carried out during the strike to ensure the levels of service required by the minimum service regulations are provided. Prior to giving the work notice, the employer must consult the union about these matters and have regard to any views expressed. A work notice must not identify more persons than are reasonably necessary, and the employer must disregard trade union membership when deciding whether to identify a person in a work notice. Failure to comply with a work notice could lead to an individual employee losing their job, as they would lose legal protections against dismissal. Failure of a trade union to take reasonable steps to ensure work notices are complied with can result in damages of up to £1,000,000 for a trade union, and for the strike to be illegal. This would, therefore, result in exposure to the risk of dismissal for those workers who have taken part (not just those who were subject to, but did not comply with, a work notice).
In our view, the Government has not adequately made the case that this Bill meets the UK’s human rights obligations:
A number of the written submissions we received in response to our call for evidence on the Bill raised concerns about the possibility that minimum service level requirements could result in discrimination in breach of Article 14 ECHR, taken together with the right to free association under Article 11. We agree that there is potential for minimum service requirements to impact more severely on certain protected groups, most obviously women in respect of nursing. Before minimum services levels for different services are specified it is hard to establish whether they would meet the Article 14 requirement for an objective and reasonable justification. Nevertheless, it is clear to us that discrimination in breach of Article 14 would be less likely if the categories of service to which minimum service levels could apply were narrowed and defined more clearly, and if minimum service levels were, if possible, reached by a process of negotiation or independent arbitration rather than imposed by regulation.
The Government has stated that the Bill brings us in line with other European countries. This is contested. Other countries have different legal arrangements with many providing a constitutional right to strike. Some have introduced minimum service levels, but in some cases these have been found in contravention with international legal obligations. Our interest is not in whether the UK is doing something which is done elsewhere, but in whether the UK is meeting the human rights requirements placed on it. In our view, this Bill is likely to fall short.