I rise to speak to amendments 115, 116 and 117, which stand in my name. The Joint Committee on Human Rights is about to commence our legislative scrutiny of the Bill but, given the Government’s timetable, any amendments that the Committee recommends at the end of that scrutiny will require to be laid in the Lords. I have therefore tabled these three amendments as a way of probing the Government’s intentions in relation to the three issues I raised on Second Reading: the fact that the Bill is not really about safety levels at all; the inaccuracy of claims that the Bill reflects current practice elsewhere in Europe; and the very real risk that these proposals are in breach of the United Kingdom’s obligations under the European convention on human rights and international labour law.
The Government’s ECHR memorandum acknowledges that the Bill engages article 11 of the ECHR, and that is where our legal analysis should start, not with the ILO. As I said in my speech on Second Reading, it is interesting to compare the ECHR memorandum for this Bill with the ECHR memorandum for the Transport Strikes (Minimum Service Levels) Bill, which I think probably has a slightly more accurate description of the law. I would love to know why the Government changed their position between the two memorandums. No doubt we will not be favoured with that information.
Article 11 protects the right to strike as an aspect of free association. It is, as Members have said, a qualified right, meaning that its protections are not absolute, but any interference with its protections must comply with the requirements set out in article 11(2). Any restrictions on the rights protected under article 11 must be in accordance with the law and must pursue one of the legitimate aims set out in article 11(2). The most recent ECHR memorandum states that minimum service regulations have the legitimate aim of
“protecting the rights and freedoms of others”
because of
“the disproportionately disruptive and harmful impact that strike action has on the public, on their lives and on the national economy”.
In contrast, the Department for Business, Energy and Industrial Strategy’s press release for the Bill said that the new law would reduce risk to life, and Government Ministers and spokespersons have made much of that as a justification for the Bill—the Minister was at it again today. The ECHR memorandum, however, does not list public safety or the protection of health as one of the legitimate aims of the Bill.
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Probing amendment 115 would add a new subsection to limit the levels of service that the Secretary of State could set in regulations to those that the Secretary of State reasonably believes to be necessary to protect life, personal safety or health. If the Government’s true focus is public safety, the amendment should be acceptable to them. If it is not, we need to be clear that the Bill is
about not just reducing risk to life or protecting health, but much more than that. If that is the case, the Government should stop trying to pull the wool over the public’s eyes with false rhetoric and, as my hon. Friend the Member for Glasgow South West (Chris Stephens) said in his excellent speech, without recognising the laws that already exist to protect the public.
I turn to amendment 116. Article 11(2) requires that any restrictions on article 11 rights have to be
“necessary in a democratic society”,
which includes them meeting a pressing social need and being a proportionate means of achieving their aim. One way to increase the likelihood that powers that can result in interference with rights under article 11 are proportionate is to ensure that there are adequate safeguards against their misuse, but those safeguards are missing from the Bill.
The Bill allows the Secretary of State to make minimum service regulations without any obvious safeguards against the minimum service levels being excessive or directed at something other than the essential needs of the public. The International Labour Organisation has stated that any minimum service levels should be
“restricted to the operations which are necessary to satisfy the basic needs of the population or the minimum requirements of the service, while ensuring that the scope of the minimum service does not render the strike ineffective.”
The Bill also allows the Secretary of State to define relevant services without any safeguards beyond a list of very broadly defined potential service sectors—for example, people may think it is funny, but “transport services” could cover taxis. That does not sit well with what the ILO has said about the possibility of minimum service levels in respect of strikes that could result in
“acute national crisis endangering the normal living conditions of the population”
or in respect of strikes
“in public services of fundamental importance.”
Probing amendment 116 would add a new subsection to limit minimum service regulations to the levels indicated as appropriate in the conclusions of the International Labour Organisation’s committee on freedom of association.
Amendment 117 aims to address the problem that a measure that restricts convention rights is unlikely to be proportionate if alternative, less restrictive measures could be taken that would be likely to achieve the same aims. Under the Bill, minimum service levels would be determined by the Secretary of State with no involvement of trade unions or employers. The Transport Strikes (Minimum Service Levels) Bill had the same aim, albeit for just one sector, but proposed an alternative approach to setting minimum service levels that was much more consistent with article 11 rights, as was argued in the original ECHR memorandum.
That Bill imposed a duty on trade unions and employers to take reasonable steps to enter into an agreement on minimum service levels within three months. Where no agreement was reached, it provided for minimum service levels to be determined by an independent central arbitration committee. Under that Bill, therefore, minimum service levels set by the Secretary of State would apply only if none had been agreed by unions and employers or determined by the central arbitration committee.
That is what happens in other European countries. They do not have top-down regulations that are imposed by the Secretary of State or other Ministers without any attempt to reach an agreement through collective bargaining or to put it out to arbitration first. In that context, the International Labour Organisation emphasises the importance of
“adopting explicit legislative provisions on the participation of the organizations concerned in the definition of minimum services”,
and says that,
“any disagreement on minimum services should be resolved…by a joint or independent body which has the confidence of the parties”.
A Bill that does not allow for collective bargaining or independent arbitration therefore does not fit with what the ILO stipulates and would not be proportionate under article 11. Amendment 117 would prevent the Secretary of State making minimum service regulations in respect of a strike unless the trade union and employer have had an opportunity to reach a negotiated agreement on those levels, and an independent body has had the opportunity to determine the levels in the absence of an agreement.
I will ask the question that I asked earlier, and I want the Minister to answer it when he speaks at the end. Can he point me to any other country in Europe that would sack people for taking part in a strike that breached top-down imposed minimum service levels, without any negotiation or arbitration beforehand? Does he really want to be in the same company—the same wee club—as Hungary or Russia when it comes to workers’ rights?