Scotland is facing another devolution row over strikes bill - Stuart Neilson

The Strikes (Minimum Service Levels) Bill was introduced into the UK parliament last week and makes provision for minimum service levels to be stipulated for health services, fire and rescue services, education services, transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security, but the detail of the minimum service levels themselves will be outlined in further regulations.

The government has said it is introducing the legislation “to ensure that striking workers don’t put the public’s lives at risk and prevent people getting to work, accessing healthcare, and safely going about their daily lives”.

However, the Trades Union Congress has described the Bill as an “attack” on the right to strike and said the proposals were “undemocratic, unworkable, and almost certainly illegal”.

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The right to strike is enshrined in the European Convention on Human Rights (ECHR). The ECHR is codified in the UK by the Human Rights Act, however, the right to strike is a qualified one.

Stuart Neilson, Partner and employment law expert at Pinsent Masons

Article 11 of the ECHR provides for 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 their interests. The article, however, provides that restrictions can be placed on the exercise of those rights where the restrictions 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”.

On the face of it, there is scope under the ECHR for the UK government to impose minimum service levels during strike action. The real question centres on when any minimum service levels imposed would stray beyond those that are “necessary” to address their purpose - which must align with one of the exemptions provided for in Article 11.

The nature of minimum service level requirements could differ significantly across each of the service sectors. Arguably, the imposition of minimum service levels in the context of the emergency services - fire and ambulance services, for example - will be relatively straightforward for the government to justify in law on health and safety grounds. The protection of health is unlikely to be a core factor in some of the other in-scope service sectors - though it is a factor that could be weighed in the context of teaching provision for vulnerable children - so the government is likely to look to other justifications for imposing minimum service levels in those areas.

The Bill could also raise constitutional issues. In Scotland, for example, powers in the context of health, education and transport are devolved to the Scottish parliament.

Demonstrators protest at Downing Street against the government's bill on minimum service levels during strikes

There is a very real prospect of disagreement between the UK government and Scottish government over the implementation of the Bill in Scotland. Even if the Bill takes effect in Scotland, how it is enforced will fall to employers - and in Scotland, it is the Scottish government that ultimately has responsibility for the NHS, public education, and rail services.

Stuart Neilson, Partner and employment law expert at Pinsent Masons

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