The minimum service levels Bill – why we should all be furious

The Strikes (Minimum Service Levels) Bill is extraordinary for the power it gives to the government to deny to workers what is universally regarded as a fundamental human right.

The Bill will apply to strikes in six sectors: health services, fire and rescue services, education services, transport services, nuclear decommissioning, and border security.

These are the six services identified in the Tories’ Trade Union Act 2016 which required strike mandates in these services to have the support of at least 40 per cent of those eligible to vote as well as a majority of those voting.

Those working in these services were clapped for their heroism during Covid — they are now rewarded by offers of sub-inflationary wage increases and the threat of denial of one of their human rights, this Bill adding to the cumulative weight of restrictions on industrial action.

In 1997 a former prime minister stated, correctly, that Britain has “the most restrictive laws on trade unions in the Western world.”

Since then further extensive restrictions have been introduced not only by the Trade Union Act 2016, but also regulations (i) permitting agency workers to be hired to break strikes, and (ii) quadrupling the limit on damages payable by trade unions.

Unlike the now redundant Transport (Minimum Service Levels) Bill introduced only last October, the current Bill not only expands the workforces required to have minimum service levels (MSL).

It also does away with the requirement in the earlier Bill that the MSL for each sector should be negotiated by agreement between trade unions and employers, (with any disagreements to be resolved by the Central Arbitration Committee).

Instead, the new Bill gives complete and unfettered discretion to Grant Shapps to set the MSL in each of the six services.

The MSLs are to be set out in regulations, which will have to be approved by Parliament in the normal way. But Parliament is not permitted to amend such regulations, which will inevitably be subject only to the most minimal scrutiny.

It is obvious that by reserving the sole authority to the Secretary of State to set the MSLs, they can be set at such a high level that any strike will be rendered largely ineffectual.

The only constraint on Shapps is likely to be that in many of the six sectors, chronic underfunding and short-staffing, will mean that only low MSLs are capable of fulfilment even in normal times when there is no strike.

The ambulance service and Avanti trains exemplify that, and highlight the glaring lack of reciprocity in requiring workers but not employers to fulfil MSLs. Shapps surely cannot set MSLs at a level higher than the service currently provided.

Ministerial power apart, the Bill is a worrying symptom of how the Department for Business, Energy and Industrial Strategy (BEIS) has become not only the friend of employers but also an instrument of the coercive state.

Despite his protestations in the Commons about respecting the right to strike, Shapps and his civil servants are proposing to take the authority to render the right to strike to be no more than a right to make a meaningful but ineffective protest.

That authority will be reinforced by wholly disproportionate sanctions to ensure obedience to the will of the state. There will be a right to strike only to the extent permitted by BEIS.

Thus, where a strike does take place within the framework permitted by the already restrictive current law, an employer (which may have provoked the strike, for example by “fire and rehire”) will have the duty merely “to consult” the relevant trade union over the number of workers required and the work required to be done to fulfil the MSL pre-determined by Shapps.

Having consulted but without securing the agreement of the union, the employer then has the right to identify in a “work notice” the individual workers required to operate the MSL. A worker who refuses to comply after having been requisitioned in this way will lose unfair dismissal protection if dismissed.

Although not as far-reaching as the Essential Work Orders in force during the second world war, this Bill proposes for the first time since then a statutory provision the effect of which is to enable employers with the authority of the state to requisition workers.

In so doing the government is authorising employers to do what not not even a court in this country can do.

Under the Trade Union and Labour Relations (Consolidation) Act 1992, section 236, no court can “compel an employee to do any work or attend at any place for the doing of any work.”

Having notified the union of the identity of the workers to be requisitioned, the Bill then requires the union to take “reasonable steps” to ensure that all members of the union identified in the work notice comply with it.

The 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? An instruction that they must cross picket lines?

That, of course would place the individual worker in an invidious and humiliating position, particularly for someone who was a branch official or shop steward (for whom there are no exceptions in the Bill).

It is easy to foresee employers arguing in court that the union failed to take “reasonable steps” because it did not discipline or expel a member who refused to comply with a work notice, particularly if the failure was persistent.

We thus we face the following paradoxical situation. Since 1988 legislation has provided that a trade union is prohibited by law from disciplining or expelling a member who refuses to take part in a strike.

Under the Bill, however, the same trade union may be required by an obligation to the employer to discipline or expel another member who does take part in the strike.

Failure by the union to take “reasonable steps” will render the strike unlawful, remove automatic unfair dismissal protection from ALL strikers, and expose the union to injunctions and claims for damages with 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 only way by which this can be avoided is for trade unions on behalf of the state to operate as instruments of coercion over their own members, a role which they have never in the past been required to perform, and which they should not now be required to perform.

It is implausible that such an authoritarian turn in our labour law is consistent with the United Kingdom’s international legal obligations.

These include Article 11 of the European Convention on Human Rights; Article 3 of Convention 87 of the ILO; Article 8 of the International Covenant on Economic, Social and Cultural Rights; Article 6(4) of the European Social Charter 1961.

The government reaffirmed its commitment to several of these treaties in the EU-UK Trade and Co-operation Agreement 2021, the effectiveness of which will no doubt be tested in the months to come.

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.

Its purpose is to weaken the power of workers and increase the power of employers. In the absence of an effective right to strike, pay, terms and conditions are set by employers without the input of workers.

The existence of the right to strike (whether exercised or not) is the one way in which power at the workplace can be balanced. The importance of this Bill is that it exposes that equation.

By enhancing the coercive power of the state and the personal power of ministers in the manner proposed, the Bill will do nothing to resolve the underlying disputes but simply exacerbate feelings of injustice.

The problem for the government is that coercion does not resolve disputes or deal with injustice.

As we learned from the experience of banning strikes during war, if workers feel they are deprived of the right to strike, they will find other ways to express their discontent which are much harder to control, making disputes much more difficult to resolve as a result.

There is talk of litigation to challenge the Bill but in our view it needs to be defeated by a political campaign without the need for the courts — just as the Industrial Relations Act 1971 was defeated 50 years ago.

With this in mind, the Bill goes well beyond the government’s 2019 election manifesto commitments. It has no mandate to regulate for MSLs 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.

It should also embolden trade unionists, faced with a fall in the real value of wages and an increase in the costs of eating and heating.

Trade unionists will of course heed the TUC’s call for protest against the Bill on February 1. There will be a rally called by the Campaign for Trade Union Freedom and the Institute of Employment Rights and supported by Enough is Enough, Arise and the People’s Assembly.

The details will be announced in the Morning Star and elsewhere in due course. We hope to see you there.

This article was first published in the Morning Star. We thank them for their kind permission to reproduce it here.