Legislative Scrutiny: Strikes (Minimum Service Levels) Bill 2022-2023

It is hard to make precise comparisons between countries where unions operate in different ways and within different industrial relations frameworks. Ultimately, however, the key question from a human rights perspective is not whether the Bill is equivalent to or different from the approach taken by other European nations, but rather how this Bill meets the human rights standards to which the United Kingdom is committed and by which the Government is legally bound. (Paragraph 32) Compliance with human rights standards

Any measure that interferes with Article 11 rights must have consequences that are foreseeable for those affected by it. We are concerned that the requirement for trade unions to take “reasonable steps” to ensure their members comply with a work notice issued by an employer does not provide the clarity needed to guarantee that trade unions and employees will know when this duty has been met and when it has not. Given the serious consequences of a failure to meet this duty, greater clarity is needed in the Bill. As drafted, the provision requiring trade unions to take “reasonable steps” may fall foul of the requirements of Article 11.

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 contains insufficient protection against arbitrary interference with Article 11 rights. The Bill should be amended to provide some limits on the level of service that the Secretary of State can require. We have included a draft amendment that would achieve this aim in the Annex to the report (Amendment 2).

Without the Government providing specific evidence establishing a pressing social need for minimum service requirements in respect of each of the very broad categories of service set out in the Bill, compliance with the requirements of Article 11 ECHR remains unclear.

The Government has not convinced us that there is a “pressing social need” for imposing minimum service levels across the breadth of categories currently set out in the Bill. We do not consider that the Government has given clear 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 involved.

The Bill should narrowly and more carefully define the categories of service which it covers so that services where existing protections are sufficient are excluded from its effects. Amending the Bill in this way would require detailed evidence and careful analysis of the need for minimum service levels across the various service sectors. In 34 Legislative Scrutiny: Strikes (Minimum Service Levels) Bill 2022–2023 the absence of such evidence and analysis, we have instead included draft amendments that would achieve a similar aim in the Annex to this report (Amendments 1 & 2).

When assessing the compatibility of the Bill with Article 11 ECHR it is important to consider the existing legal framework for industrial action as well as the changes that the Bill would make to it.

It is difficult to establish that interference with Article 11 rights is proportionate when the likelihood of achieving the intended legitimate aim of the Bill remains unclear. We are concerned that the Bill was passed through the House of Commons before an impact assessment was published and that, once published, the impact assessment has been rated as “not fit for purpose” by the Regulatory Policy Committee.

In addition to helping to establish a pressing social need, narrowing and better defining the categories of services covered by the Bill would also mean that the interference with Article 11 is more likely to be proportionate to its legitimate aims.

It is clear from the Government’s own Transport Strikes Bill that an alternative mechanism for establishing minimum service levels, involving negotiation between trade unions and employers and independent arbitration, is available. Such an approach would be more consistent with the standards of the ILO and amount to a more proportionate interference with Article 11 rights. In our view, the Bill would be more likely to be compatible with Article 11 if it included a mechanism for establishing minimum service levels that involved genuine collective negotiation between employers and unions and the independent resolution of conflicts. We have included a draft amendment that would achieve this aim in the Annex to this report (Amendment 3).

The way in which the Bill would bring minimum service levels into effect, through a work notice issued by an employer backed by an obligation on trade unions to ensure members comply with that work notice, amounts to a serious interference with Article 11 rights. It could result in employers requiring strike leaders to work, and in unions being forced to persuade their own members to break their own strike. An alternative mechanism, based on negotiation and independent resolution of disagreements, would involve lesser interference with Article 11 and therefore be more likely to meet the requirement of proportionality. The Bill should also be amended to ensure that employers cannot base their decisions as to who must work during a strike and what work they must do on a worker’s trade union activity. Such a change to the Bill would be consistent with the current prohibition on employers having regard to union membership. An amendment to achieve this aim is included in the Annex to this report (Amendment 4).

We find it hard to see how it is compliant with Article 11 ECHR to expose any participant in industrial action to the risk of dismissal simply because a trade union fails to take unspecified “reasonable steps” required in respect of those subject to a work notice. In our view, the Government has not provided sufficient justification for this consequence or explained why the minimum service scheme could not Legislative Scrutiny: Strikes (Minimum Service Levels) Bill 2022–2023 35 be effective without it. We recommend the Bill is amended to protect against this consequence for employees. We have included a draft amendment to achieve this aim in the Annex to this report (Amendment 6).

The penalties imposed on trade unions and workers for failing to comply with the requirements of the Bill and of any work notice issued by an employer are severe. In our view, they may amount to a disproportionate interference with Article 11, particularly in circumstances where the strike does not involve essential services and risks to life and limb. The Government should reconsider whether less severe measures, such as loss of pay or suspension from work for employees who fail to comply with work notices, could be effective.

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. However, before such requirements are specified it is hard to establish whether they would meet the Article 14 requirement for an objective and reasonable justification. Nevertheless, discrimination in breach of Article 14 would be less likely if, as previously recommended, 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. (Paragraph 88) 36 Legislative Scrutiny: Strikes (Minimum Service Levels) Bill 2022–2023