On the 16th January 2023, in an attempt to further wage its destructive campaign against workers rights and trade union strength, the Government substantively introduced the Strikes (Minimum Service Levels) Bill.
The Government has, for many months now, stated they will introduce legislation to curb the impact that trade unions can have through their power to lawfully strike. The Strikes Bill seeks to do this through giving the Government the power to introduce minimum service levels in selected industries through secondary legislation.
The Bill, as it stands, has several significant impacts.
Minimum Service Levels
The Bill would amend the Trade Union and Labour Relations (Consolidation) Act 1992, considered by many to be one of the most fundamental pieces of labour relations legislation in recent years, in that it would create a power for the relevant Secretary of State to implement minimum service levels over a number of industries should members of those industries seek to strike. It is important to note that the Bill itself does not state the minimum level, it simply creates the ability for the Government to implement this later; the Government would be able to change the minimum service level and implement this through such a procedure easier than they would through the standard procedure for implementing legislative change much more easily.
The industries that would be impacted are:
Health services – It is worth noting that, the Bill does not specifically state the NHS, as such, it is possible that this industry could be so broad as to include care homes, charitable drug rehabilitation services, and private medical centres. This would impact at least 1.3 million employees, but depending on the scope of the definition, could be much greater.
Fire and rescue services – This would include all 53 fire and rescue services across the UK, which currently comprises over 40,000 staff.
Education services – This would impact teachers across the spectrum, from nursery to university, public or private. Additionally, it would impact all ancillary staff in the education sector such as admin and support staff. This would impact roughly 1.5 million employees.
Transport services – Obviously aimed towards train staff following the ongoing RMT dispute, this industry would also encompass innumerable additional employees working on trams, the tube, buses, coaches, and again depending on the scope, possibly those working in the aviation industry. It is difficult to state how many people this would impact; however, it is likely to affect not fewer than 500,000.
Decommissioning and radioactive waste – A niche sector to include in the Bill, this would primarily impact those working at nuclear sites across the UK such as Sellafield but would also impact those actively decommissioning the 13 sites across the UK and could also impact many in the private sector. This could impact around 100,000 employees in this sector.
Border security – This industry has the possibility to be extremely broad, it will undoubtedly impact all employees working for Border Force but could go much wider and impact admin and support staff and also private firms providing security to ports and airports across the UK. This would impact a minimum of 10,000 but the number could be much greater.
Work Notices
Following the relevant Secretary of State implementing a minimum service level, an employer within that industry can issue a ‘work notice’ to a trade union in respect of any strike that may be upcoming. This would give the union notice that the employer expects that minimum service level to be met despite the strike. In particular, the employer can specify the exact type of employee and the roles that they do.
The Bill provides that these work notices can be issued as close to a strike as 7 days before it begins. Whilst the work notice must not identify more people than reasonably necessary, this does little to ensure the power will not be woefully abused.
The Bill does state that the employer must consult with the trade union before issuing a work notice but provides no sanction for failing to do so and does not require the employer to put into place anything expressed by the union. In practical terms, this means the employer must give the union a chance to express their opposition but do nothing further.
Further, the employer can further vary this work notice with as few as 4 days’ notice before the strike is to begin.
Unions Liability and Workers Rights
The Bill will make it such that if a union acts in any way against a work notice i.e. strikes to a degree that takes the service level below the minimum level stated in the regulation, the union will be liable for losses suffered by the employer. The law would require the union to take reasonable steps to ensure that those members identified in the notice comply.
Further, the Bill makes it so that any employee who engages in a strike contrary to the work notice, is not protected in respects of unfair dismissal. Essentially, an employee may be risking dismissal for taking part in strike action against any work notice.
General Secretary of the UK’s largest trade union (Unite), Sharon Graham, stated:
“People are dying unnecessarily in the National Health Service because of a decade of cuts and life-threatening austerity. So right now the government isn’t delivering minimum service levels. Not because of strikes by ambulance workers but because the government has created this crisis.”
Power to Regulate
As mentioned above, the Bill would grant the relevant Secretary of State a power to introduce secondary legislation, known as a Statutory Instrument, that would set the minimum service level. This power is extremely broad and is essentially unable to be beaten down by Parliament.
During its first major reading in the House of Commons, Labour MP Barry Gardiner stated:
“The reason the Bill is so short is that it delegates to the Secretary of State the power to set out all the relevant law in regulations through statutory instruments—regulations which receive only the most minimal scrutiny in this place and cannot be amended. So it is the Secretary of State, not Parliament, who will make regulations to determine the levels of service in relation to strikes”
In the 2000 document, A House for the Future, the Royal Commission noted significant problems with legislating through Statutory Instruments. Most notable were that such legislation cannot be amended by Parliament, they can either choose to approve or reject the SI and ‘As they rarely raise major issues of principle, there is a natural reluctance to go to the length of rejecting the whole Instrument’.
Even more worryingly, the Bill includes a provision that the Secretary of State has the power to “amend, repeal or revoke provision made by or under primary legislation” under these secondary legislative powers. These are known as Henry VIII clauses and are an extremely dangerous provision, they allow the Government to change primary Acts of Parliament which go through significant scrutiny, through a procedure which is devoid of such scrutiny. SNP MP, Owen Thompson has stated that these powers:
“Enabling Ministers to amend, repeal or revoke primary legislation not yet passed, should chill the heart of any democrat.”
These powers would allow the Government to change any future legislation that is passed by Parliament in the current session, it, on an extreme explanation, removes the need for Parliament. Regardless of what laws Parliament implement or change, the Government would be empowered to turn around and simply state that they don’t like it, they want to change it, or want to revoke it, and then simply be able to do it.
During the initial debate, numerous MPs stated that these powers were a direct attack on democracy.
Conclusion
In short, the Bill currently before Parliament does little itself but has the power to change everything. As Joshua Rozenberg KC (Hon), one of Britain’s leading legal commentators, put it:
“[the Bill] tells us little about how the legislation is intended to work. It also tells us that the government itself has little idea of how the legislation will work.”
It is likely that, as it stands, and despite the Government’s declaration, the Bill would be an infringement of the European Convention of Human Rights due to its significantly broad and disproportionate power. However, this Government has shown little regard for the ECHR in recent times.
Should this Bill pass into law, it will mark a point of no return in the history of trade unions and workers rights, rights which have been fought for over hundreds of years.
Avaia Williams – Founder
This blog was published on Monday 27th January
Nightingale Rights Initiative 
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