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The Earl of Onslow: My Lords, I believe that it is illegal to strike in the power industry. If things get very bad, there is really serious trouble and the power industrial workers basically say, "We are going to ignore the law and we are going to go on strike", that is a time when emergency powers are genuinely needed.
It would not be very sensible to say, "Oh no, we have got the power strike workers on illegal strike, but we don't have the power to take emergency measures". I find that a little odd. Does not the noble Baroness?
Lord Lester of Herne Hill: My Lords, I would be very grateful if the noble Baroness could help me in her reply. I am genuinely puzzled about why one needs either Clause 23(3)(a) or (3)(b). In Clause 23(5), the Government have sensibly and commendably accepted that,
- "Emergency regulations may not amend . . . the Human Rights Act".
The Human Rights Act protects the fundamental right to be a conscientious objector, for example, which effectively is in Clause 23(3)(a), and the right to strike or take part in industrial action as part of freedom of association, which is in paragraph (b). Of course, those rights are not absolute. They are subject to the public interest, including national security, emergency and so forth.
I do not ask this question from a political perspective; I genuinely seek information. If the Government are to make exceptions of that kind, why do they not make an exception, say, for free speech? The answer is because that is covered by the Human Rights Act. So I do not see why—given that the Human Rights Act will give protection to trade unions and strikers, but subject to a fair balance test, and similarly to conscientious
objectors—those paragraphs have been put in. There must be a very good reason and I am being stupid. I should be grateful to be enlightened on that.
Lord Elton: My Lords, the reason would seem to a layman to be that when the human rights veto, as it were, is withdrawn because of the public interest, the phrases that we are now trying to remove will bite. In other words, even if public interest requires it, the Government still will not be able to,
- "prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action".
As I understand it, it negates the freedom of action given by the limitation in the Human Rights Act.
We are talking about a time when the country is expected to be in extremis. The Government have said again and again that they will do that only if it is the last resort; for example, if national life is in danger, if the threat is serious and if the damage threatened is serious. Then we can start to put in a voluntary limitation beyond that already provided in statute.
I agree with the noble Lord, Lord Lester, who understands this much more than I, that there must be some other motivation. There must have been a deal struck or something that we do not know about. But if that is not the case, there cannot be any proper resistance to this amendment.
Lord Garden: My Lords, in debating this Bill we keep worrying if we put new constraints on our liberties and the like. In all the debates that I have listened to, I have heard nothing that has shown any evidence that having this exemption for trade unions has affected us over the past 80 years when we successfully got through a world war and we were threatened with nuclear annihilation for the best part of 40 years.
We are now into a different regime of security concerns. It seems extraordinary that we should now argue that we want to inhibit one of the liberties that we have enjoyed over that period. From these Benches, I am afraid that, whatever the answer to my noble friend's question, we would not wish to support an amendment that gets rid of a right that has not affected our security in the past.
Lord Elton: My Lords, before the noble Lord sits down, if the right exists already, why is this necessary in the Bill?
Lord Garden: My Lords, I will not respond at length. We are replacing old emergency legislation, which had that right in it, with updated legislation.
Baroness Scotland of Asthal: My Lords, I agree with the noble Lord, Lord Garden, in relation to that matter. As always, I regret any disappointment that I shall cause the noble Baroness, Lady Buscombe, but I
fear that I shall cause her some disappointment today. This is not an amendment that the Government can support. So we will resist its inclusion.Perhaps I may make a number of points clear, in case I was insufficiently clear at Second Reading, in Committee and on Report. Allowing the use of emergency powers to prohibit strikes would risk straying into the realm of political interference rather than emergency response. The Government have deliberately drafted the Bill to avoid the possibility of the powers being used for political purposes.
Prohibiting strike action would weaken that position and open up the possibility of the powers being used for the wrong reasons. I believe that that is something on which the House has been at one and in total agreement. That is something that the Government, Parliament and civil liberties groups have all made very clear must be avoided throughout the development and passage of the Bill.
The right to withdraw labour within the law is a fundamental right that should be protected even during emergencies. The noble Lords, Lord Lester and Lord Garden, are absolutely correct on that point. Emergency powers must comply with the Human Rights Act. The Government believe that that ensures that the fundamental rights of individuals are protected from any possibility of interference by the state. They believe that collective rights, in the form of the right to withdraw labour in accordance with the law, should also be protected.
The Government see that as a clear area in which the powers of the state could be misused in a way that threatens both individual and collective rights. Therefore, that requires express protection. I say to the noble Viscount, Lord Goschen, that there is no coyness in that. It is called respect for democracy.
Aside from civil liberties issues, there are very real practical problems with using emergency powers to ban strikes that may trigger the kinds of emergencies set out in Part 2 of the Bill. It simply does not fit well with the nature of emergency powers or the safeguards set out in the Bill. Given the temporary nature of emergency regulations and the fact that they can be used only where urgently needed, necessary and proportionate—the three areas that we have been talking about—we would risk ending up in a rather ridiculous situation where a strike is called and the powers are invoked to prohibit it. The strike is called off and therefore the powers are no longer justified. The regulations are then revoked, only for industrial action to be launched again now that the prohibition has gone. Are we then to invoke emergency powers again only for the same thing to happen, perhaps time and time again ad infinitum?
Lord Elton: My Lords, I think that the noble Baroness envisages a scenario rather different from ours. She is positing a case where the emergency is constituted by the industrial action. The case we see is where there is another national emergency and, within that framework, an irresponsible trade union decides to exploit its position by calling a strike. The powers
would not be revoked until the emergency was over, and they would not be revoked when the strike was over.
Baroness Scotland of Asthal: My Lords, the noble Lord envisages a position where one would take action under emergency powers to prevent those who wish legitimately and within the law to go on strike doing so. We simply do not think that that is right.
Looking at the history, this action does not seem to be merited. The noble Lord, Lord Lester, asked why we need to provide for these issues. It is fair to say that the right to strike is protected in part by the Human Rights Act, but in this case we think that it is appropriate to go beyond the protection in that Act. Experience shows that strikes can be the kind of situation which may necessitate the use of emergency powers, and it is therefore appropriate to make additional and specific protection for the right to strike.
I should also say that it was present in the 1920 legislation. Here we have simply continued that which was present then because it appears to have worked well. We did not think it appropriate to expunge the provisions when we came to revise the 1920 legislation and to consider again what it was necessary to do.
I see that the noble Lord wishes me to give way.
Lord Lester of Herne Hill: My Lords, I do not completely understand the Government's position and I wonder whether I could have another go. What the Minister has said about the right to strike could apply equally to any other human right such as that to publish newspapers. The logic of the argument would be the same.
I acted for the trade unions before the European Commission on Human Rights when they sought to challenge the ban on GCHQ trade union activities introduced by the government led by the noble Baroness, Lady Thatcher. I am delighted to see the noble Baroness in her place. However, I lost because the commission held that there was a fair balance between the right to strike and the banning of the right to strike in the context of GCHQ.
I understand perfectly that we are following what was provided for in 1920, but in 1920 we did not have the Human Rights Act. Now that we have that legislation, I still do not understand why the fair balance that that Act maintains between collective or individual rights and the general interests of the community, including those in a national emergency, is not sufficient without the need for these two extra provisions. What form of right to strike do the Government have in mind that goes further than the fair balance contained in Article 11 of the convention? It is that which I simply do not understand.
I agree with the noble Baroness in her general approach towards the right to strike, its importance and the need not to interfere with it except in the direst and most exceptional circumstances. However, my
point is about the method, given that the Government concede that the Human Rights Act is to be sovereign in this area.5.15 p.m.
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