Joint Committee On Human Rights Third Report



Private Members' Bills in the House of Lords

PUBLIC SERVICES (DISRUPTION) BILL

60. This Bill has been introduced to the House of Lords by Lord Campbell of Alloway QC (formerly a member of this Committee). As a Private Member's Bill, it does not carry a statement of compatibility with Convention rights under section 19 of the Human Rights Act 1998. The Bill would prevent a trade union from seeking to resolve a dispute by withdrawal of its members' services if that could disrupt a public service, before first subjecting the dispute to arbitration at the Central Arbitration Committee. An award by the Central Arbitration Committee would be binding and legally enforceable only if made an order of the High Court (clause 1). 'Public service' is defined in clause 3(2) and (3). In addition, disruption of a public service by collective industrial action at the instigation of a trade union would be lawful only if the High Court had first adjudged that the disruption proposed would be neither excessive nor disproportionate, i.e. excessive to the resolution of the dispute and occasioning substantial hardship, expense and inconvenience to the general public or substantial damage to the economy (clauses 2 and 3(1)). Our Chair wrote to Lord Campbell of Alloway on 21 January 2003 raising certain issues, and received a reply in a letter of 23 January 2003. The correspondence is reproduced in appendices to this Report.[44]

61. Right of trade unions to represent their members. The Bill would not interfere with the right of trade unions to represent their members.

62. Implied right to strike under ECHR. Insofar as the Bill would restrict the freedom of the unions and their members to withdraw their services in such a way as to disrupt a public service, or to undertake collective industrial action which would excessively or disproportionately disrupt a public service, it would, in our view, engage the right to strike which is an implied right (as a way of facilitating the right to freedom of association to protect workers' interests) under ECHR Article 11.[45] Article 11 provides—

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. 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.

63. The right to strike is subject to restrictions under Article 11. While accepting that it is one of the most important means of facilitating trade unions' representative activities guaranteed under ECHR Article 11, the European Court of Human Rights has pointed out that there are other means of pursuing those activities. The Court has also said that the right to strike, as an implied rather than express right, may be subject to regulation by national law, referring in this regard to the formulation of the right in the European Social Charter (1961).[46] Taking this into account, we consider that the Bill would engage the implied right to strike under ECHR Article 11, but that the restrictions would not deprive people of the very essence of the right, and would be likely to be justifiable by reference to the criteria set out in ECHR Article 11.2.

64. Express right to strike under ESC and ICESCR. As well as being an implied right under the ECHR, the right to strike is expressly recognised[47] in international law in a number of instruments. The UK is party to, and bound by, several of them. They include in particular: the European Social Charter (1961), Article 6(4);[48] and the International Covenant on Economic, Social and Cultural Rights (1976), Article 8.1(d). However, these provisions are subject to various restrictions, including the following.

  • The right to strike recognized in Article 6(4) of the European Social Charter is recognized 'with a view to ensuring the effective exercise of the right to bargain collectively', and is expressed to be 'subject to obligations that might arise out of collective agreements previously entered into'. A number of legal restrictions of the right to strike have been found to violate Article 6(4) in some circumstances.[49] Further restrictions or limitations are permitted under Article 31.1 if, and only if, they are 'prescribed by law and 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'.

  • The UK has undertaken to ensure the right to strike under Article 8.1 of the ICESCR 'provided that it is exercised in conformity with the laws of the particular country'. Furthermore, Article 8.2 provides that the 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'. Other limitations are permissible if 'determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society' (Article 4). Furthermore, the rights under the ICESC may not be interpreted as 'implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant' (Article 5.1).

65. The Bill would clearly affect the right to strike under those instruments. Nevertheless, it seems to us that the restriction of the right would be unlikely to deprive trade union members of the very essence of the right to strike or the right to be represented by trade unions. The conditions under which the Bill's restrictions would apply would be likely to satisfy the tests for justifiable limitations of the right under ECHR Article 11.2, ESC Articles 6(4) and 31, and ICESC Articles 4 and 8.

66. Right to form and join trade unions. The international human rights instruments protect the right to form trade unions.[50] The European Court of Human Rights has recently examined legal arrangements in the UK allowing employers to offer incentives to people to renounce their right to join a trade union. The Court held that the rules unjustifiably limit the ability of people to secure representation by a union and the ability of the union to represent its members, leading to a violation of ECHR Article 11.[51] The Bill would place members of trade unions at a disadvantage in a number of respects compared with workers who act independently of a trade union in relation to the right to strike and to take other forms of collective industrial action affecting public services. This might violate the right to join a trade union under ECHR Article 11. However, we consider it likely that there would be a justification for the interference in the particular circumstances where there is a risk of disruption to public services, satisfying the conditions in ECHR Article 11.2. Alternatively, the risk of unjustifiably interfering with the right to join a trade union might be avoided by amending the Bill so that its provisions applied more generally, instead of applying only to trade unions and people engaged in collective industrial action at the instigation of trade unions.

67. Right to be free of discrimination on the ground of status as member of trade union. The ECHR and the ICESCR also prohibit discrimination on the ground of (among other things) status in the enjoyment or exercise of the rights.[52] By putting members of trade unions at a disadvantage compared to other employees in relation to disputes affecting public services, the Bill threatens the rights to freedom from discrimination on the ground of trade union membership under ECHR Article 14[53] and ICESCR Article 2.2. The case-law of the European Court of Human Rights establishes that differential treatment does not violate the right to be free of discrimination if there is an objective and rational justification for it. Where a dispute could disrupt public services, there might be such a justification. Alternatively, the risk of violating the anti-discrimination provisions might be avoided by amending the Bill so that its provisions applied more generally, instead of applying only to trade unions and people engaged in collective industrial action at the instigation of trade unions.

68. Lord Campbell of Alloway explains in his letter to our Chair that he would not wish to extend the scope of the Bill beyond collective action, and that in his view the distinction between collective and individual action is justified in the light of the scale of potential disruption to public services. He points out that liability under the Bill would arise as a matter of last resort, that it would not attach to individual workers, and that only the High Court would have jurisdiction. We note these safeguards for the rights, and draw them to the attention of each House.


44   Ev 10-11 Back

45   Schmidt and Dahlstrom v. Sweden, Eur. Ct. HR, Series A, No. 21 (1976) Back

46   Schmidt and Dahlstrom v. Sweden, Eur. Ct. HR, Series A, No. 21 (1976). On the European Social Charter, see para. 64, below Back

47   It is also impliedly recognised in a number of others, such as the ILO Convention concerning the Abolition of Forced Labour (1957), Art. 1, prohibiting the use of forced or compulsory labour as punishment for having participated in strikes. Back

48   The same right is recognized in the revised version of the European Social Charter (1996), Art. 6, but the UK has not ratified the revised Charter Back

49   D. J. Harris, The European Social Charter (1984), p. 77 Back

50   ECHR Article 11.1, ESC Article 5, ICESCR Article 8.1(a) Back

51   Wilson and the National Union of Journalists and others v. United Kingdom, Eur. Ct. HR, App. Nos. 30668/96, 30671/96 and 30678/96, judgment of 2 July 2002 Back

52   ECHR Article 14, ICESCR Article 2.2 Back

53   In Wilson and the National Union of Journalists and others v. United Kingdom, above, the Court found it unnecessary to consider the impact of Article 14 taken together with Articles 10 and 11. Back


 
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