Joint Committee On Human Rights Eighth Report


EIGHTH REPORT


The Joint Committee on Human Rights has agreed to the following Report:

SCRUTINY OF BILLS: FURTHER PROGRESS REPORT

Summary

This Report examines the human rights implications of two Government Bills on which the Committee has not previously reported (the Fire Services Bill and the Health and Social Care (Community Health and Standards) Bill), and gives further consideration to the Community Care (Delayed Discharges etc.) Bill). The Report draws attention to the following matters:

in relation to the Fire Services Bill, the Committee draws attention to questions about the compatibility of the Bill with rights concerned with collecting bargaining under the European Social Charter and ILO Convention No. 151 (paragraphs 11-14 and 17-20);

in relation to the Community Care (Delayed Discharges etc.) Bill, the Committee draws attention to the implications of the Bill in the light of a letter from the Minister of State at the Department of Health (paragraphs 24-25).

The Report then examines a number of private Members' Bills, and notes the positive contribution that a number of them would make to the protection of human rights, while drawing attention to some aspects that could require justification in human rights terms, particularly in the Greenbelt Protection Bill (paragraphs 50-51).

Finally, the Report considers the Government's Draft Corruption Bill and concludes that it is compatible with human rights (paragraph 56).

Introduction

1. This Report first examines several Government Bills. It sets out our preliminary views on the human rights implications of the Fire Services Bill and the Health and Social Care (Community Health and Standards) Bill, and gives further consideration to the Community Care (Delayed Discharges) Bill in the light of correspondence with the Minister of State at the Department of Health, Jacqui Smith MP.

2. We then give preliminary consideration to the following private Members' Bills—

Sustainable Energy Bill[1]

Female Genital Mutilation Bill[2]

Human Fertilisation and Embryology (Deceased Fathers) Bill[3]

Legal Deposit Libraries Bill[4]

High Hedges (No. 2) Bill[5]

Government Powers (Limitation) Bill[6]

Disabled People (Duties of Public Authorities) Bill[7]

Food Labelling Bill[8]

Housing (Overcrowding) Bill[9]

Greenbelt Protection Bill[10]

Sex Discrimination (Clubs and Other Private Associations) Bill[11]

Welfare of Laying Hens (Enriched Cages) Bill[12]

Prevention of Driving Under the Influence of Drugs (Road Traffic Amendment) Bill[13]

Harbours Bill [HL][14]

Prevention of Driving under the Influence of Drugs Bill [HL][15]

3. Finally, we report on our consideration of the Draft Corruption Bill, published by the Government in March 2003.

Fire Services Bill

Background

4. The Fire Services Bill[16] carries a statement of compatibility made by the Deputy Prime Minister, the Rt Hon John Prescott MP, and is published with Explanatory Notes.[17] It is intended to confer power on the Secretary of State to impose a solution to the current firefighters' pay and conditions dispute, but the implications of the Bill are more far-reaching.

5. Clause 1 of the Bill would allow the Secretary of State, by order made by statutory instrument (which would be subject to the negative resolution procedure: clause 1(7))—

  • to fix or modify the conditions of service of fire brigade members, and/or

  • to give specific or general directions to fire authorities about the use or disposal of property or facilities (clause 1(1)).

The order-making power includes power to fix or modify the pay or allowances of fire brigade members either prospectively or retrospectively (although pay and allowances could not be retrospectively reduced): clause 1(5)(a), (6). A fire authority would be under a duty to comply with any order (clause 1(8)).

The human rights engaged by the Bill

6. The Bill seems to engage rights under a number of international human rights treaties to which the United Kingdom is a party, including particularly the right of trade unions to protect the interests of their members (an implied right under Article 11 of the ECHR, Article 6 of the European Social Charter (ESC), and Article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It also engages the obligations of the United Kingdom in respect of the promotion of collective bargaining under Conventions concluded under the aegis of the International Labour Organisation (ILO), especially Article 8 of the Labour Relations (Public Services) Convention (ILO Convention No. 151, 1978). We consider these in turn.

7. European Convention on Human Rights. Article 11 of the ECHR 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 those rights by members of the armed forces, of the police or of the administration of the State.

8. The European Court of Human Rights has interpreted the right to form and joint trade unions under Article 11.1 as including the freedom of those unions to protect the occupational interests of their members by action. This freedom must be permitted by the State. For this purpose, the right of a union to be heard by the employer on behalf of their members is indispensable, but the State has a freedom to regulate other means by which unions protect their members' interests.[18] A right to strike is one means of protecting the interests of their members, but it has so far been held not to be indispensable.[19] Some commentators have questioned this, arguing that 'the freedom to withdraw one's labour is crucial to the proper balance of power in industrial relations in a democratic society'.[20] This has been recognised in the EU Charter of Fundamental Rights. However, the European Court of Human Rights has pointed to the existence of other means of advancing claims on behalf of members of trade unions, and has 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) (see paragraph 11, below).[21] The same applies to the right to negotiate collective agreements.[22] The Bill would interfere with these freedoms by allowing the Secretary of State to impose a legally binding solution to disputes over pay and conditions in the fire services. Nevertheless, in view of the case-law of the European Court of Human Rights, we do not think that the restrictions contained in the Bill would deprive people of the very essence of the freedom conferred by Article 11.1, and we consider that they would be very likely to be justifiable by reference to the criteria set out in the first sentence of Article 11.2.

9. What is more, the Bill's restraint on collective bargaining and striking in support of claims would be likely to fall within the exception contained in the second sentence of Article 11.2. The meaning of the term 'the administration of the State' is somewhat uncertain, but the European Commission of Human Rights held in Council of Civil Service Unions v. United Kingdom[23] that workers at GCHQ fell within it. The term was to be interpreted as including employees of the State whose functions resembled those of the armed forces and the police, groups who are expressly mentioned in Article 11.2. Workers at GCHQ had important national security functions, and so were relevantly similar to the armed forces and the police. The fire services are not as closely analogous as workers at GCHQ were to the position of the armed forces and the police. Nevertheless, the fire services exercise a vital function in protecting public safety, and it is relevant to bear in mind that, when the fire services have gone on strike, the State has had to deploy armed forces personnel to provide fire-fighting cover. In view of their importance to people's safety, we consider that it is appropriate to treat them as being in a different category from those public servants whose work, although important, does not directly affect public safety. In our opinion, therefore, it is proper to regard the fire services as falling within the 'administration of the State' for the purpose of Article 11.2, with the result that their right to strike in the course of disputes about terms and conditions of work can legitimately be more restricted that the similar right of most workers.

10. For these reasons, we take the view that the provisions of the Bill are unlikely to be intrinsically incompatible with rights under ECHR Article 11. The Secretary of State would have to consider, before making any order pursuant to the powers conferred under the Bill, whether the particular order was justified under Article 11.2. An order which was not justifiable would be invalid by virtue of sections 3 and 6 of the Human Rights Act 1998. We conclude that there is no significant risk that the Bill would be incompatible with Convention rights.

11. European Social Charter. By Article 6 of the European Social Charter (1961), the United Kingdom has undertaken to take a number of steps to ensure the effectiveness of the right to bargain collectively. The Bill would interfere with collective negotiation and with the right to strike in support of such negotiations. The same applies to rights under Article 8.1(c) of the International Covenant on Economic, Social and Cultural Rights (1976), the right of trade unions to function freely, which was drafted with a view to allowing free collective bargaining.[24] However, these provisions are subject to various restrictions, including the following.

12. The rights under Article 6 of the European Social Charter are provided 'with a view to ensuring the effective exercise of the right to bargain collectively'. If collective bargaining has broken down or has failed to produce a settlement that would secure the provision of fire services after a reasonable time, the rights might be capable of being limited. In particular, restrictions or limitations are permitted under Article 31.1 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'. Orders made under the Bill might be justifiable on the ground of public interest and public health.

13. However, the Bill would not restrict the use of the power to make orders to circumstances in which there is a public emergency or collective bargaining has failed to produce a satisfactory result. It is therefore possible that an order could be made in circumstances which would not be justifiable under Article 6 of the European Social Charter. No remedy would be available from a court in England and Wales or Northern Ireland in respect of such an order, because Article 6 of the ESC is not made part of national law by the Human Rights Act 1998. The order would therefore be valid and effective in municipal law notwithstanding any such violation.

14. We have therefore written to the Deputy Prime Minister asking whether he considers that the Bill would be compatible with rights under Article 6 of the European Social Charter in the light of the very wide scope of powers under the Bill. We draw this matter to the attention of each House.[25]

15. International Covenant on Economic, Social and Cultural Rights. Article 8.2 of the International Covenant on Economic, Social and Cultural Rights 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'. For reasons outlined in relation to Article 11 of the ECHR (paragraph 9, above), this is likely to avoid incompatibility with rights under Article 8.1. Furthermore, 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 of the Covenant).

16. ILO Convention No. 98. This binds the United Kingdom in international law. Under Article 4, the State has a duty to take appropriate measures in the light of national conditions to encourage and promote machinery for voluntary negotiation between employers and workers with a view to the regulation of terms and conditions of employment by means of collective agreements. However, Convention No. 98 does not deal with the position of 'public servants engaged in the administration of the State': see Article 6. If members of the fire services are regarded as being in this category (as suggested in paragraph 6, above), the obligations under this Convention do not apply to the present Bill.

17. ILO Convention No. 151. This, too, binds the United Kingdom in international law. Under Article 8, settlement of disputes about the terms and conditions of employment of public employees 'shall be sought, as may be appropriate to national conditions, through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved.' Imposing a solution by order of the Secretary of State would not meet the test of being 'independent and impartial machinery'.

18. Paragraphs 2 and 3 of Article 1 allow national laws or regulations to determine the extent to which the guarantees provided for in the Convention apply to high-level policy-making or managerial personnel, employees whose duties are of a highly confidential nature, and the armed forces and the police. There is no similar exception which might cover most members of the fire services.

19. It might be argued that Article 8 only requires that settlement of disputes 'shall be sought' through appropriate collective bargaining arrangements. It could be said that the Article does not prevent the State from imposing a solution by order if collective bargaining has failed to produce agreement.

20. However, the Bill would not restrict the use of the power to make orders to circumstances in which collective bargaining has been attempted and has failed to produce a satisfactory result after a reasonable time. It is therefore possible that an order could be made in circumstances which would give rise to a violation of Article 8 of ILO Convention No. 151. No remedy would be available from a court in England and Wales or Northern Ireland in respect of an order which violated that Article: the order would be valid and effective in municipal law notwithstanding any such violation.

21. We have therefore written to the Deputy Prime Minister asking whether he thinks that an order under the Bill might violate Article 8 of ILO Convention No. 151. We draw this matter to the attention of each House.[26]


1   House of Commons Bill 20, Mr Brian White MP Back

2   House of Commons Bill 21, Ann Clwyd MP, with Explanatory Notes prepared by the Home Office Back

3   House of Commons Bill 25, Mr Stephen McCabe MP, with Explanatory Notes prepared by the Department of Health Back

4   House of Commons Bill 26, Mr Chris Mole MP, with Explanatory Notes prepared by the Department for Culture, Media and Sport Back

5   House of Commons Bill 28, Mr Stephen Pound MP, with Explanatory Notes prepared by the Office of the Deputy Prime Minister Back

6   House of Commons Bill 29, Mr John Bercow MP Back

7   House of Commons Bill 32, Bridget Prentice MP, with Explanatory Notes prepared by the Department of Work and Pensions Back

8   House of Commons Bill 33, Mr Stephen O'Brien MP Back

9   House of Commons Bill 46, Mr Andrew Love MP, with Explanatory Notes prepared by Mr Love Back

10   House of Commons Bill 49, Mr John Baron MP Back

11   House of Commons Bill 53, Mr Parmjit Dhanda MP Back

12   House of Commons Bill 65, Mr Chris Mullin MP Back

13   House of Commons Bill 72, Mr Nick Hawkins MP Back

14   House of Lords Bill 24, Lord Berkeley Back

15   House of Lords Bill 44, Lord Dixon-Smith Back

16   House of Commons Bill 81 Back

17   Bill 81-EN Back

18   See National Union of Belgian Police v. Belgium, Eur. Ct. HR, Series A, No. 19 (1975) at § 39 Back

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

20   D. J. Harris, M. O'Boyle and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995), p 430 Back

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

22   See National Union of Belgian Police v. Belgium, Eur. Ct. HR, Series A, No. 19 (1975); Swedish Engine Drivers' Union v. Sweden, Eur. Ct. HR, Series A, No. 20 (1976); Wilson and others v. United Kingdom (2002) 35 EHRR 523, Eur. Ct. HR, at § 44 Back

23   (1987) 50 DR 228 Back

24   Matthew Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford: Clarendon Press, 1995), p 275 Back

25   The letter is printed as an appendix to this Report, Ev 1-2 Back

26   The letter is printed as an appendix to this Report, Ev 1-2 Back


 
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