Government plans to impose minimum service levels on public services during strike action may be incompatible with human rights laws, a group of MPs and peers has found.
The Joint Committee on Human Rights (JCHR) has said that the Strikes (Minimum Service Levels) Bill, which has been voted through the House of Commons and is currently being scrutinised in the House of Lords, has “deep flaws” and needs to be reconsidered as it conflicts with Article 11 of the European Convention on Human Rights, which guarantees “freedom of association”; this covers strikes.
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Human rights law requires the consequences of non-compliance with laws to be foreseeable and for there to be a “pressing social need” for restrictions.
The Strikes (Minimum Service Levels) Bill, if passed, would see the government impose a minimum service on fire, ambulance and rail services and negotiate voluntary thresholds with other health and transport services, as well as education, nuclear decommissioning, and border security employers.
Employers would be able to issue a “work notice” to unions, setting out who is required to work during a strike. If a minimum service is not provided, employers would be able to sue trade unions for losses and dismiss workers who did not work as specified.
The JCHR report published today says that the bill does not meet the UK’s human rights obligations because:
- the requirement for trade unions to take “reasonable steps” to ensure members comply with a minimum service level does not provide the clarity needed to ensure unions and employees know when this duty has been met. Currently, this provision may fall foul of the requirement for consequences of the law to be “foreseeable”
- the government has not demonstrated a “pressing social need” for imposing minimum service levels across the sectors currently set out in the bill. For example, the category of “education services” is so broad that it might apply to private tutors and evening class teachers as well as school teachers
- the government has not provided enough evidence of the economic impact of strikes to pass the pressing social need test, nor has it given clear and compelling reasons why the current practice of establishing voluntary minimum service levels is no longer sufficient to balance the rights of the wider public against the rights of employees and unions
- there are alternative mechanisms, for example negotiation and independent resolution of disagreements, that would involve less interference with Article 11
- the penalities for breaching a minimum service level order are too high, especially for individuals who face dismissal from their jobs. It suggests suspension would be a more proportionate sanction.
The government has not proven that such draconian measures are needed or that the current framework is inadequate” – Joanna Cherry KC, JCHR chair
The committee said it would be possible for the government to introduce minimum service levels in some sectors in a way that is compliant with human rights law, but the Strikes (Minimum Service Levels) Bill would require amendments:
- limiting the circumstances in which the Secretary of State could make minimum service regulations in accordance with the principles set by the International Labour Organisation’s (ILO) Committee on Freedom of Association
- limiting minimum service regulations to the levels indicated as appropriate by the ILO
- preventing the Secretary of State from making minimum service regulations in respect of a strike unless the trade union and employer have had an opportunity to reach a negotiated agreement on those levels, and where an independent body has had the opportunity to determine the levels in the absence of an agreement
- preventing employers from considering trade union activity and membership when deciding whether to identify an employee in a work notice and specifying the work they must carry out
- preventing striking workers from losing their protection against unfair dismissal as a result of a trade union failing to take reasonable steps to ensure its members comply with a work notice.The bill will reach the committee stage in the House of Lords on 9 March, and the JCHR is urging the government to consider these amendments before then.
Committee chair Joanna Cherry KC said: “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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