An affront to democracy and legality

Only a fool will think that they will be the end of the attacks.

Commentary icon25 Jan 2023|Comment

Professor Keith Ewing

President of the Institute of Employment Rights

Lord John Hendy KC

Chair of the Institute of Employment Rights

As workers react to the cost-of-living crisis caused by the cartel of oil and gas producers ramping up the price of energy in order to make billions of dollars of extra profit, the government has reacted. Not by nationalising, requisitioning or even taxing the corporations who inflict this outrageous extraction of wealth but by attacking the resistance of the working class.

This year alone, the Police, Crime, Sentencing and Courts Act criminalised political protest. The Elections Act will disenfranchise millions through voter ID. The Judicial Review and Courts Act limits the power of courts to remedy unlawful Government action. The Nationality and Borders Act may strip citizenship from 6 million inhabitants. And the Government plans to repeal the Human Rights Act to remove fundamental rights.

This is the context within which we address the attacks on workers’ rights. The Retained EU Law (Revocation and Reform) Bill will wipe out an entire body of law on the grounds only that it has its origins in the EU pre-Brexit.  It will not apply to all EU law, but it will apply working time protections, the right to holiday pay, the protection of agency workers, and measures relating to fixed term and part-time workers, and so on.

These rights will automatically come to an end in 11 months’ time, though the government has the power under the Bill to save some them from extinction.  But part of the controversy about the Bill is that the government has failed to indicate whether and if so to what extent this power will be used.  Workers’ right to paid holidays in the future now depends on Grant Shapps who alone has the power to make this decision.

Apart from the fact that it is intolerable that one man should be in a position to determine the future of workers’ rights in this way, it is equally intolerable that this Bill has been introduced despite being in breach of the ‘non-regression’ clause in the post-Brexit Trade and Cooperation Agreement (TCA).   The latter is a treaty which the British government made with the EU, and which Parliament voted only two years ago to support.

The effect of the non-regression clause in the TCA (Article 387) is that employment rights cannot be ‘weakened or reduced’ in a way affecting trade or investment. On the contrary, we must ‘continue to strive to increase their respective labour and social levels of protection’. Additionally, the government undertook to implement all the ILO Conventions the UK has ratified as well as the provisions of the European Social Charter we have accepted (Article 399).

Which brings us to the Strikes (Minimum Service Levels) Bill which will also give unfettered power to Grant Shapps.   Here he can impose further restraints on workers’ rights by setting minimum service levels (MSL) in strikes in health, fire and rescue, education, transport, nuclear decommissioning, and border security. This will add to the layer after layer of restriction on trade union freedom which began under Thatcher in 1980.

When such a strike takes place, an employer will have the duty merely ‘to consult’ the relevant trade union over the number of workers and the work required to be done to fulfil the MSL. Thereafter employer unilaterally identifies the individual workers required to operate the MSL in a daily ‘work notice’. A worker who refuses to comply will lose unfair dismissal protection if dismissed.

The union is then required to take ‘reasonable steps’ to ensure that all members identified in the work notice comply with it.  Such ‘reasonable steps’ are not defined. May it require a union to instruct relevant members that they must not strike on pain of discipline – or even expulsion? Failure by the union to take ‘reasonable steps’ will render the strike unlawful, remove automatic unfair dismissal protection from all strikers.

Moreover, failure by the union to take reasonable steps effectively to help the employer will expose the union to injunctions and claims for damages, with the limit on damages payable by trade unions quadrupled. By Kwasi Kwarting last year when he held the job currently performed by Shapps. Unions will also face the consequential risk of contempt of court proceedings, heavy fines, and the sequestration of the union’s assets in the event of non-compliance.

The Strikes (Minimum Service Levels) Bill is a clear breach of ILO Conventions, giving rise to publicly expressed concerns last week by the ILO Director-General Gilbert Houngbo. And like the Retained EU Law (Revocation and Reform) Bill, it is also a breach as a result of the TCA, which it will be recalled was concluded by the very government now setting out to wreck its terms, revealing that it never intended to honour its word.

These Bills are an affront to democracy and legality. Only a fool will think that they will be the end of the attacks, which will almost certainly grow in intensity. Indeed, Shapps himself published a 16 point manifesto only last year, including the introduction of a power which would enable strikes to be outlawed. Workers’ rights must be respected.  Unlawful government action must be restrained.   The fightback continues.

This article was originally published on Labour Outlook under the title Defend the Right to Strike.

Professor Keith Ewing

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.

Lord John Hendy KC

Lord Hendy KC is Chair of the Institute of Employment Rights. He is a barrister specialising in industrial relations law, based in Old Square Chambers, London. He is President of the International Centre for Trade Union Rights (ICTUR) and a Vice President of the Campaign for Trade Union Freedom.