Legislative Scrutiny: Strikes (Minimum Service Levels) Bill 2022–2023 – Report Summary

This is a House of Commons Committee report, with recommendations to government. The Government has two months to respond.

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Summary

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:

  • The requirement that trade unions take “reasonable steps” to ensure their members comply with a work notice issued by an employer does not provide the clarity needed to ensure trade unions and employees will know when this duty has been met and when it has not. As drafted, this provision may fall foul of this requirement under Article 11 of the ECHR that the consequences of the law are foreseeable.
  • The lack of any limits on the level of service that the Secretary of State may impose by regulations risks a failure to comply with the Article 11 requirement of being “in accordance with the law” as the Bill arguably currently allows for potentially arbitrary interferences with the right to strike.
  • The case has not been adequately made that there is a “pressing social need” for imposing minimum service levels across the breadth of categories currently set out in the Bill. For example, the category of “education services” is so broad that it might apply as much to private tutors and evening class teachers as to school teachers. Similarly, “transport services” could include private taxi drivers. The Bill should be amended so that minimum service level arrangements are limited to those services that are genuinely of fundamental importance.
  • The Government’s ECHR memorandum that accompanied the Bill asserts that the legitimate aim of the Bill is protecting the rights and freedoms of others and that “strike action in these categories causes significant and disproportionate damage (including financial loss) to the general public and harm to the economy”. However, it only provides estimates of the economic costs of previous transport strikes. The impact assessment, which was not published until after the Bill had passed through the House of Commons, lacks detailed evidence and was described as “not fit for purpose” by the Government’s independent Regulatory Policy Committee. We would expect to see analysis of the impact of strikes in each of the service areas covered by the Bill in order to properly assess the measures against the “pressing social need” test.
  • We do not consider that the Government has given clear and compelling reasons why the current legal protections that apply to strikes and the current practice of establishing voluntary minimum service levels are no longer sufficient to balance the rights of the wider public against the rights of the employees and unions concerned, again undermining the argument that there is a “pressing social need” for this legislation.
  • An alternative mechanism, based on negotiation and independent resolution of disagreements, would reflect standards set out by the International Labour Organisation (ILO), would involve lesser interference with Article 11, and would therefore be more likely to meet the requirement of proportionality. Given alternative mechanisms are available, it is not clear why provisions that so seriously impact the right to strike are considered necessary.
  • The penalties for trade unions and, most concerningly, for individuals of breaking the law are high. For trade unions, involvement in an illegal strike could result in damages of up to £1,000,000. Any individual worker who participated in a strike that was found to have been illegal could be dismissed. Given the limited foreseeability of the legality of any particular action, these penalties are particularly concerning. Lesser penalties for individuals (suspensions rather than dismissals) are available and would make these interferences with the right to strike more proportionate.

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.