Strikes (Minimum Service Levels) Bill

Committee (2nd Day) (Continued)

Schedule: Minimum service levels for certain strikes

Amendment 18A

18A: The Schedule, page 3, line 31, at end insert— “(5) Regulations may not prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action; or create an offence.”Member’s explanatory statement This amendment is intended to ensure that the regulations do not breach Article 11 of the European Convention on Human Rights by permitting the penalisation of individuals for exercising their right to strike.

My Lords, I shall speak to three of the amendments in this group; they bring into discussion matters of international legal obligation. Amendment 18A deals with protection against the excessive use of the regulations.

I ought to begin by reiterating something the noble Lord, Lord Allan, mentioned earlier, which is that we are dealing here with fundamental human rights. The right to strike is a fundamental human right. It has been held to be a right protected by Article 11 of the European convention in a series of cases, beginning with Unison v the United Kingdom. It is protected not only by Article 11 but by many other international treaties ratified by the UK. In fact, it is protected in many national constitutions; more than 80 protect the right to strike. Of course, it is not unlimited and there are always restrictions in one way or another, but its fundamental nature is that it is a human right.

So too is the right to bargain collectively, which was held by the European Court of Human Rights to be an essential element of Article 11 in the case Demir and Baykara v Turkey. The significance of that is that the right to strike is fundamental to the right to bargain collectively—in other words, to the protection of workers’ living standards. As was said 70 or so years ago, collective bargaining without the right to strike is effectively collective begging.

The right to strike has been lawful in the UK since at least the Trade Disputes Act 1906. There is no further justification, after the many Acts restricting that right since 1980, for yet further restrictions or limitations on the capacity of workers to defend their living standards. In particular, the European Court of Human Rights guarantees through Article 11 that strikers shall not be penalised for taking part in a strike. There are many cases to that effect, notably Danilenkov v Russia and Ognevenko V Russia.

The purpose of my Amendment 18A, given the breadth of the power to make regulations in this Bill, is to clarify that the Government will not use that power to impose an obligation not to exercise the right to strike or to penalise strikers specifically by creating a criminal offence. If that is what the Government intend or merely contemplate, the noble Lord will no doubt say so. If that is not what the Government intend, then Amendment 18A will cause no inconvenience.

Turning to Amendment 18B, as I have mentioned, the United Kingdom has ratified numerous treaties protecting the right to strike, in particular the International Labour Organization Convention 87 and Article 6, paragraph 4 of the European Social Charter 1961, which is a charter of the Council of Europe. Reference is also made in the amendment to the trade and co-operation agreement of 2020.

The significance of the trade and co-operation agreement is that it requires that the parties to the agreement—the states of the European Union on the one side, and the United Kingdom on the other—will not regress from such standards. Article 387 requires that there be no regression in a manner which affects trade. I imagine the Minister will say that these provisions do not affect it; that may be a moot point. Beyond that, in paragraph 2 of Article 399, there is a commitment by the parties to

“respecting, promoting and effectively implementing”

the core labour standards. Those include ILO Convention 87 and Article 6, paragraph 4 of the European Social Charter.

We know, because the Minister mentioned it, that legal advice was taken on the standing of this Bill, which was presumably the basis on which the noble Lord was able to make the statement on the face of the Bill that it complies with the European convention. Quite understandably, the legal advice is not publicly available. However, I wonder whether it focused sufficiently on paragraph 2 of Article 399: the obligation to respect, promote and effectively implement those core labour standards in the Bill. My view, for what it is worth, is that this Bill will infringe those standards because it exceeds the limits the ILO imposes on minimum service levels. Of course, others will take a different view. However, as I endeavoured to say on the last occasion, there is a precautionary principle here. If there is a risk that we may be in breach of our international legal obligations, we should not take that risk.

My Amendment 36C would make the proposed minimum service levels conform to those ILO standards and hence to the trade and co-operation agreement. At this point it might be useful if I indicate what the relevant ILO standards are for minimum service levels. It has been said on occasion by those speaking on behalf of the Government that the ILO has accepted minimum service levels, but the problem is that the Bill does not conform to the ILO’s minimum service level requirements.

It will not take more than a few minutes to read out what the International Labour Organization’s committee of experts said about minimum service levels. It said that

“the maintenance of minimum services in the event of a strike should only be possible in certain situations, namely: (i) in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (or essential services ‘in the strict sense of the term’); (ii) in services which are not essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population; or (iii) in public services of fundamental importance.”

It said that minimum service levels

“must genuinely and exclusively be a minimum service, that is one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear; and … since this system restricts one of the essential means of pressure available to workers to defend their … interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities”.

The Bill does not impose those requirements, and I submit that it should.