The latest plans to suppress industrial action are chilling. They are the hallmark of authoritarian government – and worse.
1 Sep 2022|
Government powers to deal with peacetime emergencies are contained in the Civil Contingencies Act 2004, Part II.
The Act applies to war, terrorism, and environmental disasters, as well as to “events or situations” which threaten “serious damage to human welfare.”
Although a strike could in theory cause the Act to be invoked (though it has never happened), emergency regulations may not “prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action.”
That may be about to change following Grant Shapps’s 16-point plan to impose further restrictions on trade unions announced in the Daily Mail last week.
Among a series of eye-catching proposals designed to delay and obstruct strike activity was a measure which would also have the effect of banning strikes, by removing what Shapps refers to as the “prohibition in the Civil Contingencies Act on using emergency regulations to stop strike action where the strike may create a national emergency.”
What would it mean in practice were Shapps’s proposals to be implemented and the Civil Contingencies Act 2004 fully to apply to industrial action?
First, it would allow a minister to assess whether a strike or a series of strikes “threatens serious damage to human welfare.” Damage to human welfare would arise if the strike involves, causes or may cause one (or presumably more) of the following:
• Loss of human life,
• Human illness or injury,
• Homelessness,
• Damage to property,
• Disruption of a supply of money, food, water, energy or fuel,
• Disruption of a system of communication,
• Disruption of facilities for transport, or
• Disruption of services relating to health.
The list can be expanded by government regulation (for example, to deal with strikes by refuse workers).
On the basis of the existing definition, however, the definition of what would constitute damage to human welfare could include not only a rail strike or rail strikes (disruption of facilities for transport), but also strikes by dockers (disruption of food supply), food distribution workers (disruption of food supply), tanker drivers (disruption of fuel supply), postal workers (disruption of a communications system), and health service workers (disruption of health services), and so on.
The question of judgement for ministers and civil servants in any case is whether the damage would be “serious,” a term not defined.
But if so, a minister could make emergency regulations “appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency.”
A general power to make provision of “any kind” would then enable a strike to be banned and for it to be an offence to call or proceed with the strike, or for anyone to participate in or otherwise support the strike.
In addition, the regulations could make it an offence to use union funds to support the strike, and to empower a minister to freeze union funds during the course of the dispute.
The emergency regulations could thereafter provide that anyone convicted of an offence of taking part in an unlawful strike could be punished with either an unlimited fine, or imprisoned for up to three months.
Trade unions could also be the subject of an unlimited fine. The case would be dealt with by the magistrates’ courts.
Apart from the power to create offences, the 2004 Act gives ministers the ability to change existing law, or in the words of the Act to “disapply or modify [an Act of Parliament].” This conceivably could be used in a number of ways in the context of a strike:
• To disapply the Trade Union and Labour Relations (Consolidation) Act 1992, s 145B to enable employers to negotiate with employees directly even though collective bargaining procedures have not been exhausted;
• To disapply the Trade Union and Labour Relations (Consolidation) Act 1992, s 188 which currently requires consultation with a union before contractual changes are introduced, enabling the employer to impose government approved changes; and
• To disapply the Trade Union and Labour Relations (Consolidation) Act 1992, s 238A protecting workers from dismissal for participating in what is protected industrial action, by deeming such dismissals to be fair even where there is victimisation.
These measures speak for themselves. But to emphasise the obvious, they could be used to stop public protests in favour of a strike or strikers, and to prevent people from travelling to such protests.
The ability to “disapply or modify” could also be used to change the law relating to picketing by prohibiting pickets at certain locations during a strike which has been declared illegal under the emergency regulations.
It could also be used further to penalise unions, for example by modifying the law relating to trade union liability in damages by increasing (or even removing altogether) the statutory cap on damages for industrial action deemed illegal by the emergency regulations.
But far-reaching though such provisions may be, that is by no means the whole of it. Other measures enable emergency regulations to be made, for example to
• Prohibit, or enable the prohibition of, movement to or from a specified place;
• Require, or enable the requirement of, movement to or from a specified place;
• Prohibit, or enable the prohibition of, assemblies of specified kinds, at specified places or at specified times;
• Prohibit, or enable the prohibition of, travel at specified times;
• Prohibit, or enable the prohibition of, other specified activities.
These measures speak for themselves. But to emphasise the obvious, they could be used to stop public protests in favour of a strike or strikers, and to prevent people from travelling to such protests. The power to ban “other specified activities” during a strike or in relation thereto is infinite.
Given such far-reaching powers, what are the “democratic” and legal safeguards against abuse? The answer is “very few.”
Ministers can make regulations under the 2004 Act — with the wide-ranging effects outlined above — which come into force before they have been approved by Parliament.
They lapse after seven days without parliamentary approval, which need thus be given only retrospectively. Not that the requirement for parliamentary approval is much of a safeguard these days against ministerial abuse.
True, the 2004 Act provides that emergency regulations may not amend the Human Rights Act 1998, with which the regulations must be compatible.
But the latter is unlikely to be much of a safeguard in emergency circumstances, even where the emergency is a contrived emergency to ban inconvenient strikes.
In any event, the Human Rights Act 1998 is about to be replaced with what is likely to be a flagship British Bill of Rights, a more diluted form of protection for human rights generally.
Introduced to replace the Emergency Powers Act 1920, the Civil Contingencies Act 2004, Part II has never been used for any purpose. It is an extreme measure for extreme circumstances.
The Act contains powers which no government should have in peacetime and which no minister should seek to use except in the most unimaginable circumstances.
They are not appropriate for dictating the outcome of industrial disputes, particularly where the government is a de facto party in these disputes, as is currently the case on the railways.
It is not simply that Shapps’s proposals contain yet another clumsy attempt to attack a fundamental freedom, likely to breach the United Kingdom’s international legal obligations, about which governments give the impression they no longer care.
It is also the means by which it is to be done: what is left of the right to strike will depend on ministerial discretion, with emergency regulations constrained only by empty and largely unenforceable requirements that any restrictions should be “proportionate.”
The suppression of liberty by executive order in this way is the hallmark of authoritarian government and worse. It has no place in a properly functioning parliamentary democracy underpinned by the rule of law.
The foregoing gives some sense of what would be available to government if a supine Parliament agreed to remove the “prohibition in the Civil Contingencies Act 2004 on using emergency regulations to stop strike action where the strike may create a national emergency.” It is a chilling and sinister proposal.
This article was originally published by the Morning Star on the 25th August, here.
Professor Keith Ewing is Professor of Public Law at King's College London. He has written extensively on labour law including recognition procedures and international standards. He is the President of the Institute of Employment Rights and a Vice President of the Campaign for Trade Union Freedom.
