Draft Strikes (Minimum Service Levels: Border Security) Regulations 2023

Joanna Cherry Excerpts

Monday 27th November 2023 General Committees

[Robert Jenrick]

We would not introduce the draft regulations if we believed that we were in contravention of our legal or international obligations. We do not believe that to be the case. It is worth stating that restrictions on the right to strike are common across Europe and signatory countries to the European convention on human rights. Minimum service levels exist in a range of countries in the EU and globally—

[Joanna Cherry (Edinburgh South West) (SNP)]

On that point, will the Minister give way?

[Robert Jenrick]

If I can finish the point, I will come back to the hon. and learned Lady.

Minimum service levels are a legitimate mechanism to implement necessary restrictions to balance the ability to strike with the needs of the general public. I could give examples of countries that have taken similar steps in recent years such as Portugal, France, Spain and others.

The second point to make in answer to the hon. Member for Easington is that nothing in the draft regulations will prohibit the ability of those working in border security to go on strike. The regulations will limit it, and ensure that a minimum level of service can be conducted. There is no general prohibition on the right to strike; we have said, however, that it is absolutely in the interests of the general public—for the free flow of goods and services through a port—and of national security that at all times we maintain a minimum level of service.

As the Minister responsible for border security during recent strike action, I thought it was extremely important to the country that we kept each and every one of our ports open and that we did not compromise national security. That is why I worked closely with the Secretary of State for Defence to ensure that military personnel were available at our ports. They did a fantastic job of achieving that, but it is not a sensible, long-term solution to ask members of our armed forces to step in on such occasions to protect our border security. It is right to put a sustainable solution in place.

[Joanna Cherry]

To take the Minister back to the legal point made by the hon. Member for Easington, he will recall that the Joint Committee on Human Rights produced a report on the Act under which the draft regulations are being made. In an analysis of the law, we in the Committee pointed out that the European Court of Human Rights—in a case, somewhat ironically, against Russia—was clear that article 11 protects the right to strike. The Minister is perfectly right to say that other countries have minimum service-level laws, but they have different legal arrangements from us, with many providing a constitutional right to strike. The real question for the Government should not be whether other countries have minimum service-level regulations, but whether the United Kingdom Government are meeting their human rights requirements under article 11 of the ECHR.

[Robert Jenrick]

The hon. and learned Lady knows that article 11 is a qualified right. We strongly believe that, although there must be a right to strike, it must be balanced—qualified—by the need to protect the general public and ensure national security, and that is the crux of the argument. It is also worth saying that we will introduce compensatory measures, in the form of non-binding conciliation, to compensate the personnel who will be affected for interfering with that qualified right. Taken together, we believe that all of that satisfies our legal obligations.

The regulations stipulate that border security services can be provided only by those who already provide border security services or the relevant passport services required in the interests of national security, which means we will no longer need to rely on outside resource to provide cover. As I have said in answer to interventions, in the past we have used civil servants working elsewhere and, above all, members of the armed forces. We acknowledge and appreciate the efforts of colleagues who provided that cover, but we also recognise that that is not a long-term solution.

--- Later in debate ---

[Joanna Cherry]

It is a pleasure to serve under your chairpersonship, Ms Elliott, and a particular pleasure to follow the speech of the hon. Member for Easington.

I am grateful for the opportunity to make a few remarks about the regulations in my capacity as acting Chair of the Joint Committee on Human Rights. Back in March, we published a legislative scrutiny report on the Strikes (Minimum Service Levels) Bill, as it then was, and raised a number of serious concerns about the Bill’s compatibility with the United Kingdom’s obligations under international law, including in particular the right to freedom of assembly and association guaranteed by article 11 of the European convention on human rights, which of course is part of our domestic law by virtue of the Human Rights Act. As I said in my intervention on the Minister, although article 11 does not expressly refer to the right to strike, the European Court of Human Rights has interpreted it as covering the taking of strike action, for example in the case of Ognevenko v. Russia.

During the passage of the Bill, there were many references to arrangements in other European countries, as there have been today. To my knowledge, no European countries apart from Russia and Hungary impose minimum service levels from the top down, without negotiation or arbitration, in this way. I suggest that that is not company that the United Kingdom Government should wish to keep.

The draft regulations continue to cause the Joint Committee concern. We need to remember that, as we discuss in our report, the consequences of employees failing to work when required to do so by employers that impose minimum service levels through work notices, and of trade unions not taking reasonable steps to ensure that members comply with the work notices, include a loss of automatic protection against dismissal for participating in a strike. That is a major consequence for any individual worker, particularly in today’s climate, which was so ably described by the Member for Easington. In our original report, we expressed concern that such severe consequences may amount to a disproportionate interference with article 11. Having considered the draft regulations, we remain of the view that they could impose a disproportionate interference with article 11.

At the end of last week, in my capacity as acting Chair, I wrote to the Secretary of State for Business and Trade to raise concerns about the border security regulations and the other regulations being debated today. In particular, the border security regulations permit an employer to serve a work notice that requires border services to be “no less effective” on a strike day

“than they would be if the strike were not taking place”.

That kind of defeats the purpose of holding a strike, and therefore arguably completely undermines the right to strike. The Joint Committee on Human Rights recognises the crucial service carried out by border service staff and applauds them for it. But the proposed minimum service level raises a question not only about the ability of many individual employees to participate in a strike, but about the extent to which the strike could serve any purpose at all. As we have heard, particular concerns arise in respect of small ports and airports, where “no less effective” services could result in staff teams being effectively prevented from striking at all. As my hon. Friend the Member for Glasgow Central said, that would have a particular impact in Scotland, which has a number small ports and smaller airports.

The Trades Union Congress is rightly very concerned about the implications of both the Act and the draft regulations. I met with them a couple of weeks ago, after the regulations were laid, to discuss its particular concerns about the border security regulations and the other regulations. The TUC made the point that, in contrast to the other regulations, the border security regulations are very short, but they are very strict. They will mean that probably only one in four workers in this field will be able to go on strike and that services must remain as they are on non-strike days.

The regulations set out that border security services should be provided at a level that means they are no less effective. That will include the examination of people and goods, the patrolling of ports and airports, and the collection and dissemination of intelligence. It goes beyond security issues.

[Grahame Morris]

I am not a barrister or a lawyer, but I do think this is a really important point. Is there an analogy between reasonableness and proportionality? Would it be reasonable to have an independent arbiter of what constitutes a reasonable proportion of the workforce, rather than a Minister?

[Joanna Cherry]

That is what happens in many other European countries. Of course, any interference with the article 11 rights has to be proportionate, and given the extent of these regulations, there is a very real argument as to whether the interference is proportionate. I believe that it is not.

I note—and the TUC drew to my attention—that the Government estimate that the regulations will mean staffing levels of around 70-75% of Border Force. Only one out of four people working for Border Force will be able to exercise their right to strike; that strikes me as rather disproportionate. As my hon. Friend the Member for Glasgow Central said, this is all because the Government say

“all ports and airports should remain open on a strike day.”

As I understand it from the TUC, the Government are committing that they will agree to engage in conciliation for national disputes in relation to border security. Where the relevant unions agree, that would be helpful, but it is not written into the regulations. I wonder why that is not written into them; will the Minister address that?

The impact assessment for the border security minimum service levels warns, not surprisingly, that some people’s rights to strike will be effected. It says:

“As Border Force staff numbers based at some smaller ports and airports are very low, Option 2”

—the one the Government opted for—

“could mean that staff based at these locations are more likely to receive work notices, thus they are less likely to be able to undertake strike action, when compared with other staff. Similarly, the requirement to maintain particular border security functions during strike action could mean that officers trained in critical functions are less likely to be able to undertake strike action than those who have not taken the training.”

The point the TUC made to me is that it is unacceptable that such a profound effect on a fundamental right—that of the right to strike—should not be subject to a more detailed analysis than it has been in the impact assessment.

I have already raised a couple of questions that I want the Minister to address, and I will add two more. The Minister said in response to my earlier intervention about the law that the Government are satisfied that border security workers, particularly those at small ports and airports, will be able to exercise their article 11 rights if these regulations are passed, and the minimum service levels contained in them are imposed. Having regard to the points I have made about the numbers of people who would be prevented from exercising their right to strike—it looks like 75%, and indeed 100% at small ports and airports—will the Minister explain—

[Katherine Fletcher (South Ribble) (Con)]

Will the hon. and learned Lady give way?

[Joanna Cherry]

I will just finish the point.

Will the Minister explain how he is satisfied that preventing 75% of workers across the force, and all workers in certain ports and airports, from striking is a proportionate interference with the right to strike?

[Katherine Fletcher]

I am listening carefully to the hon. and learned Lady’s exposition on the rights of the workers of Border Force. I am just wondering where she thinks the balance is with the right of the British public to be safe. We know that we have some problems with criminality in the UK. Perhaps, for example, a drug dealer realises Border Force is on strike, and he thinks, “Fantastic, I will go to that small port and put 20 kg of children-killing heroin through it.” How can we find the balance of everybody’s rights?

[Joanna Cherry]

It is not for me to say what the balance should be; that is for the law. For the time being—thank goodness—this country is a signatory to the European convention on human rights. For the time being—thank goodness—we still have the Human Rights Act. The jurisprudence of the Court is pretty clear. As I said, it is normally countries such as Russia and Hungary that are taken to the European Court of Human Rights, not this country. We actually have a pretty good record in the European Court of Human Rights—[Interruption.] Let me just expand on this point. That will not continue to be the case if we pass these regulations.

It is a question of proportionality. The right to strike is not absolute; it can be restricted in accordance with law, but it has to be a proportionate interference. My point—

[Katherine Fletcher]

What about the rights of people in this country?

[Joanna Cherry]

The hon. Lady is going on about the rights of the public. Yes, of course the public have rights. The public have the same rights as the workers—in fact, many members of the public are workers. There is not some sort of strange grouping called “trade union members” and “workers”, and then the “public”. Many members of the public in this country are still trade union members. Many of my constituents are trade union members. Many of the hon. Lady’s constituents will be trade union members. These rights are rights of members of the public.

I think the hon. Lady is talking about the rights of the service users. Yes, the law does balance the rights, but it has to be a proportionate interference. My point is that when some workers are being prevented from striking altogether, and when in other cases 75% of the workforce are being prevented from striking, that is not a proportionate interference. We will not see such interference in other European democracies unless we care to dignify countries like Russia and Hungary with the word democracy—I do not think many of us would. That is the company we will be keeping. This is draconian. To suggest otherwise is simply, factually incorrect.

[Grahame Morris]

The hon. and learned Lady is making an excellent point, and making it far better than I could. I would like to reinforce the point. Article 11 states:

“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.”

The right for trade unions to take industrial action is further enshrined in the International Labour Organisation’s convention 87 and article 6(4) of the European social charter. The legislation seems to disregard those legal obligations.

[Joanna Cherry]

I am grateful to the hon. Gentleman for that intervention—[Interruption.]

[The Chair]

Can we keep the volume down? I am struggling to hear the contributions.

[Joanna Cherry]

Thank you, Ms Elliott.

Article 11 goes on to say that there can be an interference with that right only in accordance with law in a way that is “proportionate”. The whole point that I am trying to make is that this is not a proportionate interference with the right to strike. I am not saying that there should not be minimum service levels, and there are minimum service levels across Europe. We already have minimum service levels imposed by sectoral agreements in various areas of public service across the United Kingdom. We should be trying to reach those minimum service levels by agreement, and where agreement cannot be reached between the unions and the employers, then there should be arbitration. That is the proportionate way in which to do it.

I would like to wind up. If anyone is interested in the balance of rights, we addressed it in some detail in the Joint Committee on Human Rights report published earlier this year. First, how is the Minister satisfied that the regulations are a proportionate interference with the right to strike, when in some cases they will prevent all workers from striking, and in some cases it will be 75%? Secondly, what assessment have the Government made of the extent to which effective strike action is still possible in cases where services must be no less effective than if no strike were taking place? On what basis does the Government conclude that restricting strike action in this way amounts to a proportionate interference with article 11, both generally and specifically for those individuals identified in a work notice?