Joint Committee On Human Rights Eighth Report


APPENDICES TO THE REPORT

1. Letter from the Chairman, to Rt Hon John Prescott MP, Deputy Prime Minister

FIRE SERVICES BILL

The Joint Committee on Human Rights has carried out an initial examination of the Fire Services Bill, and has formed the provisional opinion that the Bill is compatible with Convention rights under the ECHR and the Human Rights Act 1998. The Committee would, however, be grateful for your comments on the following points relating to other human rights obligations arising under the European Social Charter and the Labour Relations (Public Services) Convention (ILO Convention No. 151). I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act.

I. Article 6 of the 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 collective bargaining. The Bill would interfere with collective negotiation and with the right to strike in support of such negotiations. 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'.

The Committee accepts that orders made under the Bill might be justifiable on the ground of public interest and public health. 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 UK law notwithstanding any violation of Article 6 of the ESC.

In the light of these considerations the Committee seeks the Government's view on whether it considers that the Bill would be compatible with rights under Article 6 of the European Social Charter, and, if so, why.

II. Article 8 of the Labour Relations (Public Services) Convention (ILO Convention No. 151, 1978)

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.' The Committee does not consider that imposing a solution by order of the Secretary of State is likely to meet the test of providing 'independent and impartial machinery' for settling a dispute. Paragraphs 2 and 3 of Article 1 of the Convention 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 seems to be no similar exception which might cover most members of the fire services.

As the Committee recognizes, 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. 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 therefore seems 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 UK law notwithstanding any such violation.

In the light of these considerations, the Committee seeks the Government's view on whether it considers that the Bill would be compatible with rights under Article 8 of ILO Convention No. 151, and, if so, why.

Finally, the Committee seeks information on any representations you have received in connection with this Bill in relation to human rights issues, and to what specific points those representations were directed.

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8th April 2003


 
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