Call for Evidence

The Joint Committee on Human Rights would like your views on this Bill, which will introduce powers for the Secretary of State to impose minimum service levels during strikes. The Bill would engage human rights including the right to free association and assembly under Article 11 of the European Convention on Human Rights.

Background

The Strikes (Minimum Service Levels) Bill was introduced in the House of Commons on 10 January 2023 and received its second reading on 16 January. The Government has said that the Bill “will ensure crucial public services such as rail, ambulances, and fire services maintain a minimum service during industrial action, reducing risk to life and ensuring the public can still get to work.”[1] It follows a commitment in the 2019 Conservative Party manifesto to require minimum services to operate during transport strikes, but it would affect a much broader range of sectors.

The European Convention on Human Rights, which has been incorporated into domestic law through the Human Rights Act 1998, does not expressly provide for a right to strike, but the European Court of Human Rights has stated that strike action is “clearly protected” by Article 11 (the right to free assembly and association).[2] The right to strike has been recognised expressly by the UN in Article 8 of the International Covenant on Economic, Social and Cultural Rights and by the Council of Europe in Article 6 of the European Social Charter. The UK has ratified both these treaties. All of these international instruments, however, make clear that the right to strike is not absolute.[3]

The right to strike is recognised in domestic law through legislation that provides protection to trade unions that organise strikes and to the workers that participate in them (the Trade Union and Labour Relations (Consolidation) Act 1992). In particular, if strikes are organised in accordance with the rules, trade unions are protected from legal claims for inducing workers to breach their contracts and the workers themselves are entitled to claim unfair dismissal if they are dismissed as a result of striking.

Article 14 of the ECHR prohibits discrimination in the enjoyment of the other Convention rights. Restrictions on strikes that impact on certain groups but not on others, without justification, could be incompatible with Article 14.

Government proposals

The Bill would give the Secretary of State the power to set out in regulations minimum service levels in relation to strikes concerning “relevant services”. The Secretary of State would also be given the power to determine what amount to “relevant services”, limited only by the fact that they must fall within the following categories:

(a) health services;

(b) fire and rescue services;

(c) education services;

(d) transport services;

(e) decommissioning of nuclear installations and management

of radioactive waste and spent fuel;

(f) border security.

Where minimum service regulations have been made in respect a relevant service, the Bill would allow an employer to give a “work notice” to a trade union in relation to any strike. The work notice will confirm that the levels of service in the minimum service regulations are to apply, will identify the persons who need to work and the work they must carry out during the strike to achieve these levels of service.

Significantly, the Bill would remove legal protections from trade unions and workers if they fail to comply with minimum service levels. Specifically, a trade union will no longer have protection from claims of inducement to breach contract if it fails to take reasonable steps to ensure that union members identified in a work notice comply with it. Workers will no longer be able to claim unfair dismissal if they are dismissed after being identified in a work notice and failing to comply with it.

Our inquiry

The Joint Committee on Human Rights carries out scrutiny on legislation that engages human rights. We will be carrying out legislative scrutiny in respect of the Strikes (Minimum Service Levels) Bill because it engages ECHR rights including the right to freedom of assembly and association under Article 11, as well as the right to strike as recognised in other international instruments that the UK has ratified.

Get involved

To help inform our work we would welcome evidence from interested groups and individuals. The Joint Committee on Human Rights invites submissions of no more than 2,000 words.

The deadline for submissions is Friday 10 February 2023.

In particular, the Committee is interested in receiving views on the following:

1. Will the Bill as introduced interfere with the right to freedom of assembly and association under Article 11 of the European Convention on Human Rights? What impact does the nature of the regulation making powers contained in the Bill have on any rights analysis?

2. Article 11(2) ECHR states that a restriction on Article 11 rights can only be justified if it is imposed in the interests of certain legitimate aims, including preventing disorder or crime and protecting the rights and freedoms of others. Does any interference with Article 11 rights that the Bill may pose have a legitimate aim?

a.  Is the answer the same in respect of each of the different categories of services the Bill covers?

b.  To what extent does the imposition of minimum service levels serve to protect human rights?

3. Article 11(2) also states that to be lawful any restriction on Article 11 rights must be “necessary in a democratic society”, which incorporates the need for proportionality. Is any interference with Article 11 rights the Bill may pose necessary and proportionate to a legitimate aim? In particular:     

c.  Is legislating to impose minimum service levels by regulations, without providing for seeking agreement between employers and trade unions, necessary and proportionate?     

d.  Is it necessary and proportionate to impose minimum service levels by regulations, rather than legislating for an independent arbitrator to set minimum service levels (as was the case in the Transport Strikes (Minimum Service Levels) Bill introduced in October 2022)? Is this affected by whether or not the strike involves the private sector or public sector?     

e.  Is the way in which the Bill would enforce minimum service levels, by removing legal protections for trade unions and workers, necessary and proportionate?   4.  How is the compatibility of the Bill with Article 11 ECHR affected by wider laws or rules governing industrial action in the UK?

5.  Does the Bill’s focus on particular sectors give rise to any concerns under Article 14 ECHR, the prohibition on discrimination in the enjoyment of Convention rights?   

6.  Does the Bill comply with the UK’s obligations under Article 8 of the International Covenant on Economic, Social and Cultural Rights and Article 6 of the European Social Charter?   

7.  Does the Bill give rise to any other human rights concerns, including concerns regarding the right to a fair trial under Article 6 ECHR?

Important information about making a submission

Written evidence must address the questions as set out above, but please note that submissions do not have to address every point. Guidance on giving evidence to a select committee of the House of Commons is available here.

In line with the general practice of select committees the Joint Committee on Human Rights is not able to take up individual cases. If you would like political support or advice you may wish to contact your local Member of Parliament.

The Committee will decide whether to accept a submission and whether to publish it on its website.  All written evidence will be considered by the Committee, whether or not it is published. If your submission is accepted by the Committee, it will usually be published online and will be available permanently for anyone to view. It can’t be changed or removed. If you have included your name or any personal information in your submission, that will normally be published too. Please consider carefully how much personal information you need to share. If you include personal information about other people in your submission, the Committee may decide not to publish it. Your contact details will never be published.

If you would like to ask the Committee to accept your submission confidentially (meaning it won't be published), please say so the start of your evidence, and tell us why. This lets the Committee know what you would like but the final decision will be taken by the Committee.

If your evidence raises any safeguarding concerns about you or other people, then the Committee has a responsibility to raise these with the appropriate safeguarding authority. If you have immediate safeguarding concerns about yourself or someone else or specific allegations of illegal practices, you should contact the Police on 999.

We can’t publish submissions that mention ongoing legal cases – contact us if you are not sure what this means for you.

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[1] Department for Business, Energy and Industrial Strategy -  Press Release, 10 January 2023

[2] RMT v UK  [2012] ECHR 1717 at para 84

[3] Article 11(2) ECHR: “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

Article 8.2 ICESCR: “This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.”

Article 31 ESC: “The rights and principles set forth in Part I when effectively realised, and their effective exercise as provided for in Part II, shall not be subject to any restrictions or limitations not specified in those parts, except such as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals.”