Joint Committee On Human Rights Third Report


8. Letter from the Chairman to Lord Campbell of Alloway

PUBLIC SERVICES (DISRUPTION) BILL

As you well know, the Committee considers the human rights implications of Private Members' Bills, and offers an opportunity to the Member who has introduced a Bill to comment on any concerns the Committee has on human rights grounds. The Committee is currently examining the Public Services (Disruption) Bill. It has come to the provisional conclusion that, save in respect of the matters mentioned below, the Bill is likely to be compatible with relevant human rights. However, the Committee would be keen to take account of any comments on them that you feel able to offer. There is, of course, no obligation on you to comment, but your views would greatly assist the Committee in its work. The issues we have under review are as follows.

Right to form and join trade unions. The international human rights instruments protect the right to form trade unions.[57] 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.[58] 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. There might 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.

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.[59] By putting members of trade unions at a disadvantage compared to other employees in relation to disputes affecting public services, the Bill might threaten the rights to freedom from discrimination on the ground of trade union membership under ECHR Article 14[60] 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.

Do you wish to expand at all on the reasons underpinning the way the Bill is drafted, and on the possible ways of ensuring that it would not violate the rights mentioned above? Any assistance you can offer to the Committee would be appreciated, although the Committee will entirely understand if you decide not to comment.

21 January 2003


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

58   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

59   ECHR Article 14, ICESCR Article 2.2 Back

60   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


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 31 January 2003