19
Examination of witnesses
Professor Keith Ewing, Michael Ford and Professor Tonia Novitz.
Q1 Chair: Good afternoon and welcome to today's meeting of the Joint Committee on Human Rights. We are a cross-party committee and a Joint Committee, which means we have Members from both the House of Commons and the House of Lords. I am Chair, and my name is Joanna Cherry MP. My apologies for having a very hoarse voice today.
We will be focusing on the Strikes (Minimum Service Levels) Bill, which was introduced in the Commons on 10 January and has now completed its Commons stages. The Bill is set to have its Second Reading in the House of Lords on 21 February. We are scrutinising the operation of the Bill and whether it is compatible with Article 11 of the European Convention on Human Rights and with the International Labour Organization convention, both of which provide for freedom of association.
We are delighted to be joined by three witnesses for our first panel. First, joining us remotely, is Professor Tonia Novitz, a professor of labour law at the University of Bristol, which has the Centre for Law at Work. Her research interests encompass labour rights, collective labour voice, international and EU trade, sustainability and migration.
Next, joining us in person, is Professor Keith Ewing, professor of public law at King's College London. He has written extensively on labour law, including recognition procedures and international standards, and he is the co-author of one of Britain's leading textbooks in labour law.
Last but most certainly not least, we are joined by Michael Ford KC, who is a barrister at Old Square Chambers. His principal area of practice is also labour law, both individual and collective, including areas such as equal pay, industrial action, working time and trade union law.
Thank you to all our witnesses for joining us today. I will take the Chair's privilege and start with the first question, which is directed to you, Professor Ewing. To what extent does UK law, or the domestic law of the United Kingdom, protect individuals who go on strike, and how would the Strikes (Minimum Service Levels) Bill change this?
Professor Keith Ewing: That is a big question.
Chair: It is. Please start by giving us an overview and then we will dig into the detail.
Professor Keith Ewing: The law talks about the protection of the individual and about participation in lawful strikes, so we must identify what a lawful strike is for these purposes. If you go back many years, the starting point is that in this country a strike would almost certainly give rise to delictual or tortious liability at the suit of the employer. Historically, since 1906, trade unions have had protection from these liabilities, which has been set down in statutes.
The current statutory procedure is to be found in Section 219 of the Trade Union and Labour Relations (Consolidation) Act, which contains a number of limitations as to the subject matter about which strikes may take place. The strike has to be in contemplation or furtherance of a trade dispute. If that requirement is met, the trade union has to meet what have, since 1980, been an increasing number of procedural obligations set by Parliament. Briefly, these are that the union must provide notice of intention to hold a ballot to the employer. The union must then conduct a ballot by postal means, in this internet age. The ballot is tightly regulated, and the ballot result is now subject to participation and support thresholds that were introduced in 2016. Thereafter, the union has to give 14 days' notice of its intention to take strike action.
If these requirements, substantive and procedural, are met, it is possible that the strike would be deemed to be lawful for the purposes of the protection of the individual. Compliance with these obligations would protect the union from liability by way of an injunction or possibly damages, but they would also protect the individual members of the union from unfair dismissal. If the union fails to comply with these obligations, that swings back on the individual. If it is not a lawful strike because of the failings of the union, the individual members of the union who take part in the strike lose their automatic protection from unfair dismissal and must fall back on other possible unfair dismissal protections.
Chair: You have described the various hoops the union has to jump through to make the strike lawful. If the strike is lawful, the individuals who go on strike are protected from being sued for a breach of contract or losing their job or unfair dismissal. Michael is shaking his head. Take out the breach of contract and go back to the unfair dismissal.
Professor Keith Ewing: They may be protected from unfair dismissal, but Michael will tell you about a case he is currently involved in that involves sanctions against the individual, short of dismissal.
Chair: We cannot talk about current cases. We have an extremely strict sub judice rule in Parliament, so my apologies for that.
Just to clarify, you have explained that if the union jumps through various hoops, the individual striker is protected from unfair dismissal. What extra level, or extra hoops to jump through, would the Strikes (Minimum Service Levels) Bill add to that?
Professor Keith Ewing: The Bill as it stands would add another layer of obligation or restriction for the trade union, which would also have an impact on the individual. If there are minimum service levels that are determined by the Secretary of State, that will empower the employer to issue a work notice to designated individuals. They, I think, will be required to work. If they do not comply with the terms of the work notice, my understanding is that they will lose their automatic protection from having taken part in a lawful strike.
There is an additional problem under the Bill that relates to this extraordinary duty of the union to take reasonable steps to ensure that its members comply with the work notice if they have been designated to work. In that case, a failure on the part of the union to comply with that obligation—for whatever reason; good or bad, or just an oversight—would render the whole strike unlawful, effectively, and would expose all the individuals taking part in the strike, because they have not been designated, to lose their protection, as it currently stands, from unfair dismissal. The consequences of this Bill for the individuals, apart from the obligation to work, are that it will have major implications for their unfair dismissal protection. I do not know where you will go with this, but it does raise questions about the proportionality of the legislation.
Chair: I will come back to that in a moment. Professor Novitz, is there anything you would like to add to set the scene on this question of the individual protection? We will get into issues about Article 11 and proportionality in a moment.
Professor Tonia Novitz: The thing to note is that the UK is fairly anomalous compared to other European countries in that there is no positive right to strike under the constitution or legislation. In many other countries, either as an individual or through the entitlement of the union, you would be able to rely on access to industrial action, and you would normally be protected from dismissal.
The UK has always had very restrictive dismissal laws. As Keith was saying, a major innovation was the creation of an automatic 12-week period of protection from dismissal, which applies to all lawful industrial action that meets the requirements that you have a lawful legitimate set of aims for the trade dispute and that the procedural obligations are abided by.
There is a residual protection from dismissal, which is a protection from selective dismissal and reinstatement, but in order to be able to claim that you would need to have two years' continuous service. It is not the same kind of automatic entitlement that you get if the trade union has done everything properly, and because the minimum service levels Bill that is before Parliament changes the conditions for access to automatic protection from dismissal, it may severely disadvantage various individuals as well as trade unions.
Chair: Thank you. Michael, would you like to add anything?
Michael Ford: Both colleagues have summarised the position very well. It is worth pointing out—to deal with the point that you were going to raise—that at the moment a strike is a fundamental breach of contract, so there is no protection in common law for an individual who is dismissed, has their pay docked, is disciplined or has discretionary benefits removed, or indeed if they are sued for damages. The only real protection they have is this right for automatically unfair dismissal in Section 238A. That only applies to employees and does not apply to the broader category of workers. As you have heard, this Bill adds a new layer of considerable uncertainty about when the union has taken reasonable steps to secure that its members comply with the work notice, and potentially removes that protection.
Q2 Lord Henley: Thank you very much. You have set out our domestic law very clearly. Can we now move on to what is most important to this committee—how the domestic law is affected by the European convention, particularly in relation to how that is domesticated by the Human Rights Act—and then go on to the relationship between the convention and the ILO's convention on freedom of association? Who wants to start here? Professor Novitz, you were smiling.
Professor Tonia Novitz: I would be very happy to speak on this. There are various provisions, if we are looking at convention rights, that could be relevant in this situation. Obviously, Article 11 relates to freedom of association and what we know as the right to collective bargaining, but the right to strike had also been recognised by the European Court of Human Rights as protected under Article 11.
In the Ognevenko v Russia case, which is cited in the Government’s memorandum on the ECHR, there is a very clear incorporation of International Labour Organization standards and the findings of supervisory bodies into how the European Court of Human Rights views the remit of Article 11 and what are acceptable exceptions to protection of the right to strike. That relates in quite a detailed way, in that case, to essential services. Minimum levels of service are mentioned as an option, but the International Labour Organization also has very detailed jurisprudence, through its supervisory bodies, on what will count as essential services and when and how minimum service levels should be introduced.
Lord Henley: Mr Ford or Professor Ewing, do you want to add anything?
Michael Ford: There are two key things on Article 11. The first is that, if an individual goes on strike, the Strasbourg court says that any sanctions imposed on that individual are incompatible with Article 11, so the individual sanctions are clear.
The second is the extent to which the collective action of the union itself can be circumscribed—Tonia explained this in relation to the Ognevenko case—which will turn on proportionality and the other familiar tests in Article 11(2). It is also worth saying that the right to strike is explicitly recognised in the European Social Charter, in the International Covenant on Economic, Social and Cultural Rights, and in the EU Charter of Fundamental Rights—if I am allowed to mention that here.
Chair: You are still allowed to mention it here. It is important to understand that, despite the fact we have left the European Union, the European Social Charter comes from the Council of Europe rather than the European Union.
Michael Ford: It is in both versions of the Social Charter: the one we are a signatory to, the 1961 one; and the 1996 one.
Professor Keith Ewing: I will just make two points. One is that Article 11 of the convention has been read by the court, as Tonia says, to include the right to strike. In determining what the right to strike means for these purposes, the court has had regard to the international labour conventions as well as the jurisprudence of the supervisory bodies that have been established to monitor the application of these conventions. They make it clear that the right to strike is protected not only by ILO Convention No. 87, but by the requirements of the ILO constitution. So there are two strands, if you like, by which the right to strike is protected by the ILO: one by the convention, and one by the constitution.
As Michael said, the European Social Charter is also relevant and is used by the court to interpret and determine the scope of the right to strike. Indeed, in the Russian case to which Tonia referred, Article 8 of the International Covenant on Economic, Social and Cultural Rights was also mentioned, because it too expressly refers to the right to strike.
Michael Ford: It is Article 22.
Professor Keith Ewing: Article 22 of the international covenant is civil and political rights.
Michael Ford: Oh yes.
Professor Keith Ewing: It is Article 8(2) of the International Covenant on Economic, Social and Cultural Rights, I think.
The other point I would make, which is often overlooked but will be well known to everyone here, is that the trade and co-operation agreement that we made with the European Union, and which was approved by this Parliament in primary legislation in 2020, commits this country to comply with international labour conventions that we have ratified as well as the European Social Charter.
There are multiple obligations in relation to ILO standards, directly and indirectly through the European Convention on Human Rights and through the trade and co-operation agreements. Article 399(5) says expressly that we undertake to comply with the ILO conventions that we have ratified and the provisions of the Social Charter that we have accepted, and we have accepted 64 of them.
Chair: Good point well made.
Q3 Baroness Lawrence of Clarendon: Good afternoon. I am a Labour Member of the House of Lords. You mentioned Article 11. My question does not look at the specifics of the Bill; I want to ask about the idea of imposing minimum service level requirements. Is that compatible with the European Convention on Human Rights, which provides the right to freedom of association? I should also say that yesterday we talked about the Bill in the House of Lords, so there is a vote on service levels.
Professor Tonia Novitz: The International Labour Organization has always said that the establishment of minimum service levels is permissible as a facet of freedom of association. It should only be possible, though, in very limited circumstances. In the case of Ognevenko, the European Court of Human Rights referred to the ILO jurisprudence, which says this is an option and is possible to do, but it is also very clear that it is possible to establish minimum services only in very limited circumstances: either the interruption of services, which would endanger the life, personal safety or health of the whole or part of the population—essential services in the really strict sense of the term—or the interruption of services that are perhaps not essential in the strict sense of the term but where the extent or duration of the strike might create an acute national crisis; in other words, an emergency situation that affects the normal living conditions of the population, or where you have public services of fundamental importance like the police and the Armed Forces.
The difficulty with the Strikes (Minimum Service Levels) Bill at the moment is that it is not sufficiently restricted to those categories, so it is very hard to see without further justification how education services, for example, should be so broadly brought within its remit. There are some real difficulties here with compliance with ILO standards.
Michael Ford: If we take it step by step, the starting point here is that the rights in Article 11 and the related right in Article 10 are fundamental rights.
Secondly, the provisions here will strike at the core of those rights, because they will affect primary industrial action called by a union, not just secondary solidarity action. They will also affect the individual right of the striker who is subject to the work notice.
Thirdly, at the outset, you need to examine the cumulative effect of this provision in the context of UK law as a whole. I would refer the committee back to its own comment on the Trade Union Act that you need to look at the totality of the measures, to use the language of the Strasbourg court. The ESC has already indicated that UK laws are unduly burdensome, and the ILO has similarly been critical of the existing law. That is the context.
Then you come to the actual test of justification. I will take this step by step. The first issue is that there is a moot point whether the minimum service levels will be in accordance with law. In a decision involving Bulgaria, the Committee of Social Rights said that a 50% level in rail services was too uncertain to have the quality of law. We need to put that to one side. We have not yet seen the regulations. Added to that, in relation to being in accordance with law, the union has to take reasonable steps to ensure that its members comply. You can already see the horrendous uncertainty that it will give rise to in a context where a union will be picketing and campaigning for the strike and so on and yet has to take unspecified reasonable steps to ensure that the members comply. That is the first step.
Then you come to legitimate aim. In their human rights memorandum for this Bill, the Government rely on the effects on business and on lost working days. In the Strasbourg case of Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers' Union (NTF) v Norway, they said that economic effects generally are not sufficient and do not weigh very heavily in the balance and outweigh the fundamental right to call a strike. You see that also in the ERRC v Bulgaria case before the European social rights committee.
Then you come to whether there is a pressing social need for this. Again, I would ask the committee to look back at the memorandum that accompanied the earlier Transport Strikes (Minimum Services Level) Bill, where the Government said, "We do not think there is a pressing social need for restrictions outside transport”—
Baroness Kennedy of The Shaws: Anywhere else. That is right.
Michael Ford:—“because in these sectors there are sufficient protections to ensure that services occur anyway”. A few months ago, the Government said that there is no pressing social need.
Baroness Kennedy of The Shaws: That is the argument before us.
Chair: That is missing from current ECHR memo, which does not have that argument in it, surprisingly.
Michael Ford: No, but the things they are relying on are effectively economic effects, which both Bulgaria, in relation to the Social Charter, and the Norwegian confederation, in relation to Strasbourg, say is not enough. Then you come on to proportionality in the round, where again those same things count. Economic considerations generally are not enough, but you then look again at the ILO standards, which we will come on to.
On the integrated approach that Keith refers to, you have non-compliance with the standards which the ILO has said are necessary if you are to have minimum service levels. You trace through all the steps in proportionality and you end up saying that they are failing.
Professor Keith Ewing: I come back to the point about the ILO, which follows on nicely. As Tonia has said, what the minimum service levels actually talk about are negotiated minimum services, not minimum service levels—I would underline the "negotiated". What Tonia highlighted, and I would agree, is that it can be done only in a limited range of three circumstances, which Tonia has set out.
Even if these three circumstances are met, they are subject to very tight conditions. Let me go through these so that we get this on to the record. First, the conditions are that the restrictions can operate only to the extent strictly necessary to ensure that basic needs are met. It does not mean keeping schools open or running train services as if there was no strike. It is a minimum service to ensure that basic needs are met.
Secondly, steps have to be taken in order to maintain the effectiveness of the strike. This is a recognition that minimum service levels are a serious infringement of a fundamental human right. So if you are going to do this, you have to make sure, as a Government or whoever, that you maintain the effectiveness of the strike, or you do not eat into the effectiveness of the strike, by ensuring that basic needs are met.
Thirdly, and importantly, it can be done, but only if trade unions can participate in defining the scope of the minimum service levels in question. That means participation; not to be consulted, as is set down in the legislation, but to negotiate, with Governments and employers, what the minimum service level should be. There is a gulf between "to consult" and "to negotiate".
If we enter into negotiations in good faith—it would have to be in good faith on both sides; Governments and trade unions—and cannot reach an agreement, it has to be set by an independent third party. Italy has an independent commission that does this. Fairly recently, about 10 years ago now—well, it is fairly recent in my lifetime—we had a decision from the ILO Committee on Freedom of Association that emphasises this point in a case from France about the fact that minimum service levels were being set but workers were being requisitioned—this is effectively what we are doing here—in circumstances where there was no independent determination of what the minimum service level should be. If there is no agreement, it should be done by an independent third party, including possibly the judiciary. That was an example given in the French case. So the first point is the limited circumstances, which Tonia highlighted, and the second point is that they are subject to those three conditions.
The third issue I would highlight relates to the consequences of someone acting in breach of a minimum service level arrangement. The issue here is that the consequences have to be proportionate. That comes back to our earlier discussion about dismissal. One of the problems of the Bill is the disproportionate nature of the sanction that can be visited upon the trade union and the disproportionate nature of the sanction that can be visited upon the individual, which compares sharply with the position in Italy, where it is expressly provided that no one can be dismissed for failing to comply with the minimum service agreements or determinations.
Baroness Lawrence of Clarendon: It does seem as though the Government are trying to use a broad brush—you have the healthcare, you have the train strikes—to sweep across all of that to say that minimum service levels need to be in place, and by law that is what needs to happen regardless of all the things you have mentioned just now. They want to use a broad brush to cover, in their eyes—
Michael Ford: If you look at the language of the ILO—in some of the decisions they talk about where the country is brought to a standstill outside the very narrow core of essential services—and then you think of the strike in the university sector, for example, which is now covered by this, it just does not begin to meet that threshold.
Chair: Those were very thorough answers.
Q4 Baroness Kennedy of The Shaws: I had a question coming up, and it is fair to say that my colleague from the Bar has already anticipated and answered it. When this notion of having a transport strikes (minimum service levels) Bill was first on the table last October, they very specifically showed that it was necessary for transport in a way that it would not for other public services. It accepted the argument that the country is not going to be brought to a standstill in the other areas but that there was a problem around transport. They were making the argument for why it had to be transport.
Since that time, of course, we have had the health sector and the education world coming out and saying, "We’re also being paid ridiculously low wages", which is inappropriate for people working in these fields. You have answered this question, which is that the tests do not cover any of those areas, and that would be your position. I do not know about Professor Novitz, but I see her nodding a bit as well.
Professor Tonia Novitz: There seems to be almost a kneejerk response here and a rush to introduce legislation. If we go back to what the International Labour Organization and the Committee on Freedom of Association say about setting minimum service levels, you really should not be engaging in negotiations or setting minimum service levels during a labour dispute, and the parties should be examining the matters with the necessary full frankness and objectivity.
It does seem as though this is a very swift political measure. Keith has also written on the brevity of this legislation and the lack of detail, which I hope you will come back to later—for example, in relation to the treatment of individuals named in the work notices. There are some real problems of detail here, and the way in which this is going through Parliament so swiftly is problematic. It does not seem as if those issues of proportionality have been attended to.
Michael Ford: Of course, you are absolutely right. In paragraph 48 of the earlier memo, the Government said, in the case of other key public sectors, "Important factors exist to mitigate the impacts of industrial action in those sectors in wider society. These factors are generally absent in the transport sector”. Then they refer to the duty in TULRCA to protect life and the offence in Section 240 of endangering life and limb. They refer to voluntary agreements reached by the Royal College of Nursing and UNISON in the health sector. They refer to the Fire and Rescue Services Act and so on.
Baroness Kennedy of The Shaws: Briefly, do you have examples of where this minimum service level has been used in other countries and where it would be deemed to have been appropriate?
Michael Ford: That is a more a question for my colleagues, particularly Tonia.
Chair: Can we come back to that at the end? Baroness Meyer has a question about minimum service levels that already exist in this country. You touched on this slightly in your answer, Michael.
Q5 Baroness Meyer: My question is more general. To what extent, if any, are minimal service levels already required in domestic law? Also, apart from the police and the Armed Forces, are there other services that are prohibited from striking?
Michael Ford: In addition to the police and the military, we also have prison officers. In relation to minimum service levels, there are the provisions in the Fire and Rescue Services Act 2004 referred to in the memorandum that we have just been looking at. There is Section 240 of TULRCA, which says that if someone wilfully breaks a contract of employment and has reasonable cause to believe that it could endanger life or health, that is a criminal offence.
Outside that, we have the Civil Contingencies Act 2004, which expressly says that even though you can pass emergency regulations to deal with a critical national emergency, such as risk to human welfare or national security, you cannot pass regulations that prohibit strikes or industrial action, recognising the fundamental importance of the right to strike.
Baroness Meyer: Do you think that needed to be changed?
Michael Ford: In the Civil Contingencies Act? No, I do not. If you are to protect a fundamental right like this, you need to recognise that you cannot simply do it by secondary legislation in this way. That is precisely why the Civil Contingencies Act has that exception carved out in it, whereas the legislation at the moment is the opposite. It is just laying down an overarching framework and then saying, "Regulations, do what you want”.
Professor Keith Ewing: In principle, minimum service level obligations are contrary to the traditional way we have addressed industrial action in this country. It is anathema to the British system as it has developed.
What Michael refers to in the Civil Contingencies Act is a carryover from the Emergency Powers Act of 1920, where this provision first appeared. Although we can declare and have declared states of emergency to deal with industrial disputes, certainly before 2004, it was always understood that power could never be used to require people to work no matter the nature of the emergency. That principle is to be seen also in Section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992, which says expressly that not even a court can grant an order of specific implements or specific performance or an injunction or interdict to require someone to work. We have very strong conceptual views about the propriety of requiring people to work in the event of a strike.
One of the objections to the Bill is the power that it gives to the employer to do something that not even a court can do, which is to order somebody to work during a strike. When I saw that, I thought that was quite a breathtaking step to take and so alien to the traditions of our industrial relations system as they have developed over the last 100 years or so.
Baroness Meyer: Ambulance drivers can go on strike.
Professor Keith Ewing: Ambulance drivers, yes, but—
Baroness Meyer: Is their right greater than the right not to die?
Professor Keith Ewing: It comes back to the question of the consensual nature of our system. The consensual nature of our system has two aspects. One is that where there are disputes of that kind, we seek by agreement to ensure that some level of provision is made available to deal with that type of situation. We do not coerce people into that situation, but, either by agreement or unilaterally on the parts of the worker's concerned, these needs are met. That is how we have typically dealt with that.
The other side to that—and this is worth mentioning—is that we focus on the strike, but the strike happens only because there has been a breakdown or failure to agree, and that will be a failure to agree within a framework of collective bargaining. Both sides have a duty to bargain in good faith. The Government have a duty to bargain in good faith, to mitigate and to avoid, and to ensure that these types of problems do not arise. That obligation, which also has its roots in international law, which this country accepted again in the trade and co-operation agreements, is that we will take steps to promote collective bargaining. That applies to the Government as employer or as financier of employers, as it does to people in the private sector.
Baroness Meyer: Which works only if one defines good faith. Usually they accuse each other.
Professor Keith Ewing: That is exactly right, but one of the objections at the moment—I am not at the table, so I do not know if it is true—is that we are told for example in health, nursing in particular, that government comes to the table but is not bargaining. There are obligations. If we want to avoid strikes, we have to accept that there are responsibilities on both sides.
Michael Ford: In relation to ambulances, for example, UNISON has an agreement with every trust on the minimum level of service that will be provided in relation to ambulances, tailored to the needs of the particular trust.
Chair: Michael, this puzzles me, because as a justification for the Bill the Government keep referring to some sort of breakdown in the arrangement. They suggest that there was some sort of breakdown in the arrangements for minimum service levels during the ambulance strike. Is that right, or did UNISON not just do the usual thing?
Michael Ford: That is certainly not my information. I do not know if Tim Sharp might be dealing with that later.
Chair: It is something we could ask our next panel.
Michael Ford: Yes, it may be something that you wish to hear evidence on.
Baroness Lawrence of Clarendon: I am sure I heard on the news that the ambulances are providing a minimum service level.
Professor Keith Ewing: That is a view being expressed by the trade unions.
Baroness Lawrence of Clarendon: We will clarify that with our trade union witnesses in the next panel, but it is very helpful to have your understanding of it.
Q6 David Simmonds: I wanted to ask about the minimum service levels. The Bill gives the Secretary of State power to set minimum service levels in various sectors through regulation. Should the Bill impose any limits on what minimum service levels can be imposed? In particular, how would the rights of freedom of association under Article 11 of the ECHR be safeguarded in that process?
Michael Ford: We have covered most of this. At the moment, you will notice that there are no substantive limits in the Bill at all. The Secretary of State simply makes regulations, and in order to satisfy Article 11 it would need to be shown that there is a pressing social need, that the reasons are sufficient and so on. There is no such duty in the Bill, which seems a striking absence.
Another big problem that Keith and Tonia have both highlighted is that, even if there were such a duty, there would still be no compliance with the ILO standards that feed into Article 11, because there is no substantive restriction on the level of the service. Nor does it meet the ILO’s procedural requirements of participation and an independent body determining the minimum service level if agreements break down. I would say that is the problem.
Professor Keith Ewing: The problem with the Bill is that the six sectors to which it refers are vague and opaque and give a wide discretion to the Secretary of State. There is no substantive content in terms of the obligations which the regulations should meet. The procedural obligation is a duty only to consult with interested parties the Secretary of State thinks fit. There is no duty to negotiate—with trade unions in particular—the content of these regulations. It is woefully short of what you would expect in legislation of this kind and was rightly criticised on multiple grounds in Committee in the Commons, I think.
David Simmonds: In your view, does the Bill, or should the Bill, distinguish between the public and private sector, and do you consider that that issue is relevant to its compatibility with freedom of association?
Michael Ford: For what it is worth, in the Strasbourg cases on strikes and Article 11, the court has repeatedly said that it does not matter whether you see this as a direct infringement by the state as employer, or as through the prism of the state's positive obligations. The cases you want on that are Wilson v United Kingdom, Danilenkov v Russia, and Păstorul cel Bun—I may have mispronounced that—v Romania, I think.
Q7 Bell Ribeiro-Addy: As you have already answered the question on whether you think the approach in the Strikes (Minimum Service Levels) Bill adequately protects Article 11 rights, I want to ask you about the Transport Strikes (Minimum Service Levels) Bill that was introduced in the House of Commons in October. It has not yet got to its Second Reading, but it had an alternative approach whereby minimum service levels were not already established and the Secretary of State set down minimum levels through agreement or an independent arbitration committee. Would this approach be more compatible with Article 11 rights?
Professor Keith Ewing: It would be different in the sense that it encourages agreement and provides for the arbitration of difference, but, at the end of the day, if there is no agreement and no arbitrator of difference, it is left to the Secretary of State, as I understand it, to make the regulations without any input from any independent body. So there are three levels by which this process proceeds. If there is a complete failure to reach an agreement or to refer any difference to arbitration, it falls to the Secretary of State on his or her own to resolve the problem.
Moreover, the Transport Strikes (Minimum Service Levels) Bill does not address some of the other problems, which I am sure we will come to, in the more recent Bill. One is the work notice provisions that can be imposed upon individuals or directed to individuals. The second is the duty of the unions to take reasonable steps. The current Bill is slightly better in the sense that the duty of the unions is to take steps only in relation to its members, not to non-members, which was an absurd obligation in the transport Bill. They are different, but I would not want to be thought to be defending on human rights grounds the transport Bill, which I did not realise was still before Parliament, for what purpose I do not know.
Bell Ribeiro-Addy: Does anyone else have any other views on that?
Professor Tonia Novitz: It does seem to me that the rail transport Bill still falls foul of accepted understandings of essential services to which we would expect a minimum service level to apply. It is only in the most exceptional circumstances—you have a problem with rail transport strikes that cause significant disruption and create a national emergency—that there should be this kind of intervention. It seems that without any strikes, there is already an emergency; this is not a situation that has been created by strikes.
There is also the work notices issue, to which Keith referred. It is not only Article 11 of the ECHR that is relevant here. There may be a case for saying that there is a problem with Article 4 on forced labour. The way in which the work notices are set out in the rail transport Bill and in the broader minimum service levels Bill create real difficulties around Article 4. Maybe we should discuss that in greater detail later.
Q8 Bell Ribeiro-Addy: That is my next question: the work notices and how they relate to what has happened. If we think about why people are striking, it is because they do not have enough money to pay all their bills, for example. I then think about the definition of modern-day slavery and wonder whether the Government are forcing people to work even though they know that the conditions are unbearable, and they are threatening them with removing their main source of income and therefore threatening things like their shelter, food and what is needed for their families. Are we then veering into a situation where it could be considered modern-day slavery?
Professor Tonia Novitz: That is the forced labour problem raised under Article 4. Article 4 makes clear that, “No one shall be held in slavery or servitude”. We are not talking about that, but we are talking about being required to perform forced or compulsory labour. Forced labour, as it is defined by the European Court of Human Rights, involves a situation where somebody is required to work under the menace of a penalty. Here, the menace of the penalty is potentially dismissal, not just if they are working in an essential service.
Although Article 4 makes an exception for services exacted in the case of emergency or calamity threatening the life or well-being of the community, this Bill goes well beyond that. It also involves naming individuals and requiring trade unions to take reasonable steps, whatever they might be, to get them back to work without necessarily contemplating the kinds of incentives that perhaps allow trade unions to place illegitimate pressure on individuals as well. The threat of dismissal is stark in the context of a cost of living crisis. There is a real analogy to be drawn here with modern slavery.
Q9 Lord Dholakia: Following on from what you said—Professor Novitz has already answered this question to an extent—under the Bill there will be a consultation between the employers and trade unions about establishing what you call a work notice, which will tell you who will do the work and what work they will do. Does this in any way contravene human rights concerns?
Professor Keith Ewing: That is a good point, because it highlights the limitation on the duty to consult. For example, there is no duty to consult about the level of service that is to be provided or the wages to be paid during the period of the work notice. There is simply a duty to consult in two specific questions: namely, the number of people and the work to be done, but not how much they are to be paid for the work to be done, or what the working time, working hours or working schedule is to be. However, that is not the point either, because under the ILO requirements, which flow into Article 11 of the convention, a duty to consult is not good enough. There should be a duty to agree and a duty to negotiate with a view to reaching an agreement, failure of which should then be subject to reference to an independent third party, as is the case in Italy, for example, with the guarantee commission.
Apart from the consultation obligations, which strikes me as being quite serious, there is also the fact that the employer, in issuing a works notice, can choose to include within the obligation to work the shop stewards and other officials of the trade union in the enterprise: that is, the leaders of the strike at enterprise level. The employer has a discretion to require the strike leaders to cross picket lines and to attend the workplace and thereby to take the strike leaders out of active service for the periods of the strike. This needs some explanation on freedom of association grounds, in the sense that the employer has this opportunity to actively undermine the ability of the union to conduct an effective strike.
Work notices, as we raised earlier, give the employer power that even a court does not have in this country. It also has major implications for unfair dismissal protection if a worker—for example, a shop steward—should decide that loyalty to the union is to be preferred to loyalty to the employer. In these circumstances, it puts the shop steward, or the workplace official, in the impossible position of conflict of loyalty or obligation.
Lord Dholakia: You think there is a need for safeguards to be established.
Professor Keith Ewing: The best safeguard would be simply to not have the Bill at all and accept that legislation of this kind is generally unwanted for multiple reasons. It is likely to be ineffective, and there will be great difficulty complying with the convention and ILO obligations as well as a social charter and the UN treaty of 1966. There are massive problems of a legal and practical nature.
Michael Ford: There are many points about the works notice, but I will highlight just four. The first problem is that it must relate only to the provision of the service, and again one asks how broad that is and which group of employees are encompassed within it.
The second problem, as you will see, is that the period for consultation with the trade union is extremely short, and whether it will be a consultation at all.
The third point, which Keith has already highlighted, is probably the most important one and relates to the selection of those who work. According to Section 234C(6), “The employer must not have regard to whether a person is or is not a member of a trade union”, but it says nothing about trade union activities.
Professor Keith Ewing: Or officials.
Michael Ford: Trade union activities are precisely what Article 11 protects. In restricting the non-selection—which itself does not have a sanction—to not taking place on grounds of trade union membership, it is missing the fact that activities are what Article 11 protects. Therefore, it allows precisely the selection of the activities that Keith has just alluded to.
The fourth point is that the works notice requires the union to secure that its members comply with it. In litigation, you can now see there being a dispute between the employer as to whether the union took reasonable steps to make X work. The union may have to explain for the purpose of that litigation whether X is a member of the union or not. Immediately, you see the problem with that, because it potentially requires the union, sometimes in breach of the contract that it has with the member, to disclose whether that person is a member or not. The litigation process surrounding work notices has the potential to open up unions having to disclose trade union membership, which is sensitive personal data and an aspect of Article 8.
Q10 Baroness Meyer: The Bill says that trade unions will lose their protection against legal action if they do not ensure that their members comply with the minimum service levels. Similarly, employees who fail to comply with a work notice will lose the ability to claim unfair dismissal if they are dismissed as a result of the strike. Are there other ways in which minimum service levels could be enforced?
Michael Ford: You have seen how it happens at the moment with voluntary agreements. The real problem I have with these reasonable steps to ensure that your members comply with the notice is that I have no idea what “reasonable steps” means in the context of a trade union on the one hand campaigning for the strike, and on the other hand having a lawful right to picket as enshrined in Section 220. What happens if the member turns up, sees the picket and turns around? Does that mean that you have failed to take reasonable steps, or not? I have no idea how such a standard actually operates in the context of a real strike. What is the union actually supposed to do, given that on the one hand it will be campaigning for the striker—
Professor Keith Ewing: There are three possible obligations. It is not clear whether any or all of them apply. Bear in mind the position of the union having to be mindful of protecting the funds of the union from litigation. First, does it mean that we are required to inform our members that they are the subject of a work notice? They will know that already, so why is the union required to do this? Secondly, is the union then required to instruct its members who are subject to a work notice to go to work and, if necessary, to cross picket lines? Those members include officials if they have been identified in the work notice. Does it then include a duty to discipline or indeed to expel someone who fails to comply with an instruction from the union that he or she must go to work?
This is important. These are serious questions, because the Bill imposes a duty on the union to take reasonable steps to ensure that these obligations are met. It is not a duty on the part of the union not to obstruct or to refrain from obstructing the operation of the work notice; it is a duty to ensure that members comply. That is a strong obligation of a very vague and uncertain nature to be included in a Bill of this kind. It seems to me that that alone gives rise to serious freedom of association questions. It is imposing a duty on the union to co-operate with the employer to ensure that the strike is defeated, which is an extraordinary thing for Parliament even to contemplate.
Professor Tonia Novitz: It is extraordinary, and there are very few protections for the individual rights of the people required to work under the work notice. Under Section 238A—the consequential amendment to the provision on automatic protection from dismissal—although there is a notice to be given to the trade union seven days before, there can be variation up to four days before the action. It seems that you can tell an employee that they are required to turn up to work the day before. If you really want to protect the interests of potentially non-trade union members and their liberty to take industrial action when it is being lawfully caused by another union—it is lawful for the time being—those people are not given a choice as to whether they will be in breach of their contracts and dismissed. Those people are particularly vulnerable. In its entirety, the Bill is very, very messy, poorly planned and poorly thought out.
Q11 Chair: The Government have suggested that this Bill will make UK law consistent with the law of other European nations. They have mentioned France and Germany specifically and suggested that minimum service levels there are already imposed. Do you agree?
Professor Tonia Novitz: The closest analogy with the kind of legislation that is being introduced by the UK now is actually with the laws that apply in Hungary. Hungary is currently subject to a European Parliament resolution, meaning that it is no longer a full democracy. It is a state where, since December 2010, quite draconian legislation has been introduced in respect of minimum service levels.
In 2022, the International Labour Organization’s Committee of Experts called it problematic legislation, because there is no way for the worker's organisations to participate in establishing the minimum service level together with employers and public authorities; that participation of worker representation is not there. They have also said that there is a problem, because there is no way that disagreement on such services will be resolved by a joint or independent body in Hungary. Once again, no joint or independent body to see here.
The committee also says that it is vital that Hungary introduces a requirement that any minimum service falls below at least 50% of the volume of transportation. This goes back to Mr Simmons’ question earlier. We would expect there to be at least some restrictions on potential minimum services levels, but there are none here. The closest analogy that we have is with Hungary, not with France or Germany.
Chair: The Government were not praying Hungary in aid, perhaps for obvious reasons, but they were praying France and Germany in aid. If you look superficially at France, you might think that it has a system that is imposed from the top. Is that right?
Professor Tonia Novitz: Not entirely. The way France operates in its industrial relations system is that relatively few people are trade union members. However, the trade unions are very forceful, operate sectorally, and tend to set—to the extent that they can—appropriate minimum service levels in particular sectors. My understanding is that they do not do so in the context of rail transport, and that their approach to doing so in the context of school education has also been controversial. It is imperfect; both France and Germany have been criticised to some extent. Germany makes a distinction between the public and private sector, which makes it very difficult for civil servants to actually take industrial action. That is anomalous in the international community.
You have to go back to thinking about the totality of the industrial relations systems. Germany is very strong on works-council forms of representation and on forms of sector collective bargaining. It is not particularly impressive on minimum service levels, but both countries have the ultimate recourse to the courts to prevent abuses. What is less certain here is whether we have the equivalent of a constitutional court that could come to the fore, as is possible in France.
Professor Keith Ewing: When we are looking at different countries, we should not just be picking all the bad bits and trying to take the worst from every system and apply them here, which seems to be our model. My understanding is that, in France, legislation was introduced in 2003 to amend the law that allows for the requisition of workers. These arrangements to requisition workers is what we have here with work orders. In France, they can requisition workers for the purposes of good order, health, peace and public security. That can be done by the local prefect, and the Government at the time undertook that this would be done only in extreme cases of natural disasters, war and so on. However, it was used in the case of oil refineries in 2010 and was found to be in breach of the ILO Committee on Freedom of Association principles. That is the point; it is not what they have in other countries, it is whether what they have in other countries is consistent with international legal obligations that we share.
A second piece of French legislation, dated 2007, deals specifically with the transport sector and the provision for arrangements in the event of a strike. This states that services can be provided by non-striking workers, but it is expressly provided that “In the event of a strike, the employees who are available for this purpose are not the employees who are on strike”. In the event of a dispute you cannot requisition strikers to do transport work in France; it is quite limited.
Q12 Baroness Lawrence of Clarendon: Given your comments about the service level and all the areas where the Government are applying pressure, could unions take legal action on this Bill?
Professor Keith Ewing: Yes, I would have thought so. Well, why not? Potentially there would be a Human Rights Act challenge, and if that fails, I would have thought that the Strasbourg court would be a very interesting venue before which these issues could be ventilated.
Chair: Presumably it will be open to the unions to judicially review any regulations that are made under this Bill, when it becomes an Act, with regard to their compliance with ECHR under the Human Rights Act and possibly other issues.
Professor Keith Ewing: There are provisions in the Acts with other regulations, which I would have thought were open to challenge.
Chair: That might also be incompatible, yes. Okay, perhaps that is something for another day.
Michael Ford: Could I just add one point? When I was mansplaining to Professor Ewing about the various UN covenants, I may have got it wrong. It is actually Article 8 of the International Covenant on Economic, Social and Cultural Rights, and Article 22 of the International Covenant on Civil and Political Rights. So professor Ewing was right and I was wrong.
Chair: I did not realise that one man could mansplain to another. I learn something new every day. Thank you for clarifying. Thank you so much to you all for an extremely illuminating session.
Oral evidence: Legislative Scrutiny: Strikes (Minimum Service Levels) Bill
