Strikes (Minimum Service Levels) Bill: More Government by Diktat

For the first time since the second world war, Parliament is being asked to authorize the requisitioning of workers.

Commentary icon13 Jan 2023|Comment

Professor Keith Ewing

President of the Institute of Employment Rights

Lord John Hendy KC

Chair of the Institute of Employment Rights

Photo credit: Tim Hammond / No10 Downing Street

The Strikes (Minimum Service Levels) Bill is a short Bill of only six pages:  seven sections (three of which are a single sentence), and a short schedule.   It replaces the now redundant Transport (Minimum Service Levels) Bill which in contrast ran to 19 pages, despite applying to a single sector.   Yet the new Bill extends to health services, fire and rescue services, education services, nuclear decommissioning, and border security, as well as transport.

The reason why the current Bill is so short is because it proposes to delegate all powers to Grant Shapps to make regulations ‘to determine the levels of service in relation to strikes as respects minimum services’.  Shapps – not Parliament – gets to define what is meant by ‘health services’, ‘education services’, ‘transport’, and so on:  the scope of the restrictions can be as wide as he determines.

But equally critically, he also gets to define the circumstances in which the right to strike can be exercised in the sectors whose boundaries he – not Parliament – defines.   So the nature of the services to be provided, the number of people who are to provide them, the time at which they are to be provided, and the manner in which they are to be provided during a strike are to be determined by Shapps – not Parliament.

This form of legislation in which the content of the law is not in primary legislation subject to Parliamentary scrutiny but left to Ministers to stipulate in regulations has long been condemned by jurists.  Most recently it was the subject of excoriating criticism by two important committees of the House of Lords in reports the titles of which speak for themselves: Democracy Denied and Government by Diktat.

Nevertheless, Shapps is proposing that he should have the power to ‘amend, repeal or revoke provision made by or under primary legislation’. Primary legislation for this purpose is defined to include an Act of the Senedd or the Scottish Parliament.  Pause there.  What is being proposed is that Grant Shapps should have the power by regulation to override legislation passed by the Scottish Parliament and the Senedd, and to do so with minimal scrutiny.

The latter proposal raises serious constitutional objections, and is surely designed to provoke outrage.  Not least because it means that Grant Shapps and his officials in Whitehall should have the power to legislate by regulation to interfere in devolved areas, and impose restrictions on the right to strike in the transport, education, health and other public services in Scotland and Wales, where his interference is neither wanted nor appropriate.

But of course it is not only the powers that Shapps is taking that causes so much concern.  Despite his protestations in the Commons about respecting the right to strike, the power taken has the potential to render the right to strike to be no more than a right to make a meaningful but ineffective protest.   There will be a right to strike but only to the extent permitted by Grant Shapps, an extraordinary power in a democracy to bestow on one man.

Where a strike does take place within the framework permitted by Shapps, an employer will be empowered to issue a work notice to the union spelling out the individuals who are required to work and the services they are required to provide.   For the first time since the second world war, Parliament is being asked to authorize the requisitioning of workers.   Those who fail to comply with the work order lose unfair dismissal protection

Once the work notice is issued, the union is then required to take ‘reasonable steps’ to ensure that all members of the union comply with the work notice if they have been included.  A big question is what would a trade union have to do to show it had taken ‘reasonable steps’?  Issue an instruction to relevant members that they must not strike?  Are unions required to discipline or expel members who refuse to cross picket lines?

Failure by the union to take ‘reasonable steps’ will render the strike unlawful.  It is important to emphasise the consequences of this.  If the strike is unlawful as a result of the union’s failure, it will remove unfair dismissal protection from ALL employees on strike.  This is despite the fact that they can be in no way culpable for the alleged failure of the union to take reasonable steps to ensure that the requisitioned workers comply with the employer’s instructions.

Little wonder that trade unions are enraged.  We should all be enraged:  the Bill is contemptuous of parliamentary democracy, and is an affront to human rights.   It affects us all.  In time other concerns will be revealed.  In the meantime, note that the Bill goes well beyond the government’s 2019 election manifesto commitments.  It has no electoral mandate to regulate for minimum service levels in the expanded range of sectors in the new Bill.

This should embolden parliamentarians of all parties to do their constitutional duty:  deny ministers the authoritarian powers they crave, and defend the liberties of the people.

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.