Government's plans to limit strikes ‘incompatible’ with human rights law

Anti-strikes bill that could affect Border Force civil servants is “heavy-handed” and “flawed”, committee says
Border Force strike near Heathrow Airport in December. Photo: Reuters/Peter Nicholls

By Tevye Markson

06 Mar 2023

Government plans to limit strikes by Border Force officials and some other public servants are incompatible with human rights law, MPs and peers have said.

The Joint Committee on Human Rights said the proposed reforms “do not appear to be justified and need to be reconsidered”, in a report published today on the strikes (minimum service level) bill.

The legislation would require minimum levels of service to be maintained in “critical” public sectors during industrial action, make it easier to sack striking workers and potentially putting unions at risk of £1m fines.

But Joanna Cherry, chair of JCHR, said the government “has not proven that such draconian measures are needed or that the current framework is inadequate.”

And she said these “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 government’s choice of sectors – health, education, fire and rescue, transport, border security and nuclear decommissioning – also risked over-reaching into areas “only tangentially linked to the maintenance of vital public services”, Cherry said.

“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," she added.

The committee has called on the government to amend the bill’s “deep flaws” and come back with legislation that “better respects” the protections guaranteed by the European Convention on Human Rights.

Government case for dismissal and fines ‘not compelling’

The government brought forward the strikes bill in January in response to months of strikes in the civil service, transport, health, education and elsewhere. It has said the legislation is needed to protect the lives and livelihoods of those that may be disrupted by industrial action in key public services.

The bill would allow ministers to set minimum service levels during walkouts in the above-mentioned sectors. The employer would then be given the power to issue a "work notice" to a trade union, identifying staff who will be required to work, and the work needed to meet the minimum service level.

Individual employees who failed to comply with a work notice would lose legal protections against dismissal and trade unions who failed to take steps to ensure notices were complied with could be required to pay damages of up to £1m.

But JCHR said the government “has not made a compelling case that such measures are necessary”.

It said the proposed penalties for employees and unions who do not meet the bill’s requirements are “high and potentially disproportionate”. Less severe measures, such as loss of pay or suspensions, would be more appropriate and proportionate, “particularly where a strike does not involve essential services”, the committee suggested.

The committee also criticised the lack of clarity in this part of the bill. Trade unions would be required to take “reasonable steps” to ensure their members comply with a work notice issued by an employer. But JCHR said the bill “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”.

Reforms 'don't meet human rights requirements'

While the European Convention on Human Rights does not include a ‘right to strike’, Article 11 guarantees freedom of association, which has been interpreted to cover strike action.

This requires that any restrictions on strike action must be “in accordance with the law”, which says consequences must be foreseeable to those affected. Changes to the law must also meet a “pressing social need” and be proportionate to the aim being pursued.

JCHR said the current bill would fail to meet these benchmarks.

It said the government has not adequately made a case for why there is a “pressing social need” for imposing minimum service levels across the breadth of categories currently set out in the bill.  

The government’s ECHR memorandum, which accompanied the bill, said the aim of the legislation is to protect the rights and freedoms of others and warned that “strike action in these categories causes significant and disproportionate damage (including financial loss) to the general public and harm to the economy”.

However, the memorandum only provides estimates of the economic costs of previous transport strikes.

The committeee said the legislation should be amended so that minimum service level arrangements are “limited to those services that are genuinely of fundamental importance”.

It also questioned the validity of the government’s impact assessment,  published after the bill had passed through the House of Commons. JCHR said the impact assessment “lacks detailed evidence”. 

“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,” JCHR said.

The impact assessment was also labelled "not fit for purpose" by the goverment’s Regulatory Policy Committee last month.

JCHR also warned that the lack of limits on the level of service that a secretary of state would be able to impose could lead to “arbitrary interferences with the right to strike”.

The report also criticised the lack of "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 employees and unions".

This also undermines the argument that there is a “pressing social need” for this legislation, it said. 

JCHR said the government should, instead of imposing minimum service levels and threatening fines and dismissals, use an alternative mechanism based on negotiation and independent resolution.

"Given alternative mechanisms are available, it is not clear why provisions that so seriously impact the right to strike are considered necessary," the report said.

Border Force staff, represented by the PCS union, have walked out several times in the last few months, with the government responding by drafting hundreds of army personnel in to provide emergency cover.

The now-defunct Department for Business, Energy and Industrial Strategy, which was split up last month, said in January it does not initially plan to introduce the powers for border security staff and some other sectors despite them being named in the bill. If the legislation passes, they would be able to change this decision at any time, however.

PCS has described the anti-strike legislation as "reprehensible and vindictive".

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