Grant Shapps’ Latest Anti-Union Law ‘Likely to Be Struck Down’ in Embarrassing Blow
The Minimum Service Levels Bill is ‘almost certainly’ against international law – meaning any fines or sackings would be thrown out, according to a leading labour lawyer
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The Government’s latest anti-strike legislation stands a high chance of being struck down as illegal under international law, a leading global labour lawyer has told Byline Times.
It comes as ministers push ahead with the Minimum Service Levels Bill, which is being rushed through Parliament and has been branded as a form of ‘conscription’ by unions.
The bill would force a certain percentage of workers who had voted for strike action in any of six sectors – including education, health and transport – to go into work. The bill doesn’t set out how high the threshold will be, leading to fears it could be anywhere between 30% and 80% of ‘normal’ service.
Jeffrey Vogt, co-Founder of the International Lawyers Assisting Workers Network (ILAW) – a leading coalition of 900 workers’ rights lawyers from around the world – told Byline Times the legislation was likely to breach International Labour Organisation (ILO) conventions.
“While the ILO does recognise that there can be in some sectors a requirement of a minimum service, these are usually things that are negotiated with trade unions,” he said. “There’s nothing in the bill suggesting that there needs to be any negotiation with the trade union to establish what the minimum service level is.”
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He said international case law is “pretty clear” that there has to be a process of negotiation with the unions and governments can’t set a minimum service level so high as to make the strike essentially pointless.
Crucially, according to Vogt, if the law is deemed illegal by the ILO, any fines which are issued to unions for not encouraging their members to cross their own picket lines would also be illegal.
“If they’re suing unions on the basis of a law, which isn’t in line with international standards, then any fines that would result from such a law, would also equally be a violation of international law,” he said. “You can’t take an unconstitutional law, in the sense of in this case, and then use that as a basis for penalties.”
The same applies to anyone fired for refusing to cross a picket line if they were part of the percentage of staff that was meant to go into work on a strike day: “If [employers] don’t have the legal authority, under international law to do what they’re doing, then any consequences that would be a result would also violate those international obligations.”
Vogt’s comments come as a report, published today, by the Joint Committee on Human Rights has found Government plans to impose minimum service levels on public services during strike action are likely to be incompatible with human rights law in their current form.
SNP MP Joanna Cherry KC, the committee’s chair, said the Bill “is likely to be incompatible with human rights law which provides a right to association and with it, protection for strike action. The Government needs to think again and come back with legislation that better respects the protections guaranteed by the European Convention on Human Rights.”
Henry VIII Powers
A major concern with the bill is that Business Secretary Grant Shapps will have all the power to decide what the minimum services should be set at and who participates in a minimum service. For instance, would transport as a “critical” sector include all bus, taxi, airport and train staff or just those actually operating the vehicles?
“There’s nothing in the bill… that even gives criteria to ascertain what the minimum service should be,” Vogt added. “So it gives the Government, acting as both a regulator and employer, a free hand to set that level practically at whatever they want.”
The lawyer believes the bill is part of a “pushback” in the UK – and more widely – on the exercise of the right to strike. “You’ve seen in the UK other efforts prior to this one, to weaken the ability of people to effectively strike,” he told Byline Times. “This Minimum Service Levels Bill is particularly… striking.”
Last year, the Government ended a ban on agency workers being brought in to replace strikers, triggering safety fears in sectors like rail.
The Fine Print
The ILO’s Committee on Freedom of Association has handled around 3,500 international disputes – and the question of what counts as essential services, and how they should operate, has come up in the past.
“Minimum service levels have to be discussed with the trade unions involved,” Vogt said. “And whatever the minimum services that are set out, it has to be one that obviously doesn’t undermine the purpose of the strike. You still have to be able to strike. There’s no denying that.”
Minimum services legislation should also not render the strike ineffective. “You still need to be able to have an effective strike,” he said.
Asked what level would constitute an illegally high bar, the labour expert said: “I can guarantee you an 80% minimum service level would be thrown out by the ILO, and any fine against the union or individuals for that matter would also be legally suspended.”
Could the threshold drop to 60%? “It’s always fact-based,” he said. “There’s no magic number. But I would still think that would be quite high. If you’re setting a rate at a level that is going to render the strike effective, the ILO will find it to be a violation of the principles of freedom of association.”
In most countries, education and transport are not deemed essential public services and workers in these sectors can strike, meaning this is another part of the bill that could be struck down.
The European Convention on Human Rights – incorporated into UK law through the Human Rights Act – could also deem the bill being held as illegal on human rights grounds.
The Trade Union Congress is understood to have already filed a complaint with the ILO Committee on Freedom of Association. A separate complaint to the European Court of Human Rights is also possible, but would likely need to go through the UK courts first.
“There’s pretty well developed jurisprudence at the European Court of Human Rights which generally tracks with the ILO but not entirely [and it would likely be thrown out]” Vogt said.
It is unlikely that a decision will come out of the Committee on Freedom of Association until this autumn at the earliest, and it could stretch to next spring – long after the bill is passed.
What would happen if the ILO struck down the law?
“Nobody is going to come from Geneva and force the Government to do anything,” Vogt told Byline Times. “But it does, again, send a clear, legally grounded signal to the Government that they are in breach of a convention. There is an expectation that they follow up on that, and that there will be other ways that the ILO will continue to monitor to see whether the Government is following up on it, and continue to remind them of their non-compliance.
In the end, it’s for trade unions and others to use that language from the ILO and campaign to get the law changed.”
Rishi Sunak recently came under fire for suggesting he consulted the ILO before going ahead with the bill – a point strongly disputed by the global watchdog’s leadership. Sunak later U-turned on his comments.
Other Legal Challenges
The EU has also laid the ground for legal action if the UK Government breaches its commitment to workers’ rights under the Brexit deal.
The European Parliament has adopted a report backing the “enforcement and implementation” of the UK Withdrawal Agreement and the EU-UK Trade and Cooperation Agreement.
The Withdrawal Agreement committed the UK to protecting “labour conditions”. The subsequent 2021 Trade Agreement enshrined a “commitment to uphold their respective high levels of protection in the areas of labour and social standards, environment, the fight against climate change, and taxation”.
It commits the EU and the UK not to “weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards”.
Labour protections specifically include “fundamental rights at work”, of which the right to strike is one, set out by the International Labour Organisation and the European Convention on Human Rights.
Now the EU is laying out its plans to enforce protections set out in its agreements with the UK, in a move which could bring the UK Government’s Minimum Service Levels Bill into sharp relief.
And a Government-appointed body has already given the Government’s impact assessment for the bill the red card, branding it “not fit for purpose”.
The statement from the Regulatory Policy Committee – a group of independent experts brought together by the Department for Business to examine the impact of regulation on business and civil society – said that the Government has failed to provide sufficient evidence in its assessment of the legislation and instead relied on assumptions. It slapped a rare “red” rating on the document.
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