Minimum Service Levels During Strikes and the Misuse of Comparative Law

Abstract

Minimum Service Levels During Strikes and the Misuse of Comparative Law Nicola Countouris (bio) In January 2023, UK Prime Minister Rishi Sunak1 said minimum service levels (MSL) are "present in France, in Italy, in Spain", while then-business secretary Grant Shapps2 claimed the legislation "simply brings us into line […] with many other modern European nations, such as Spain, Italy, France". On more than one occasion, UK government officials have made great use of comparative law arguments to justify the introduction of new, draconian, minimum service level obligations under the Strikes (Minimum Services Levels) Bill 2023, which at the time of writing is nearing its third and final reading in the House of Lords. Almost exactly half a century ago, in June 1973, Sir Otto Kahn-Freund, arguably the founding father of modern UK labour law, delivered a special lecture, later published as an article by the Modern Law Review, entitled "On Uses and Misuses of Comparative Labour Law". In that lecture he warned against the introduction in English law, by means of the 1971 Industrial Relations Act, of a number of "specimens of attempted transatlantic transplantation" (particularly in the domain of collective bargaining, but also some affecting cooling off pauses and compulsory ballots in emergencies) stressing the high risk of "rejection" of these transplants that, the very different British legal, industrial, and political tradition, would most likely identify as a "foreign body" to be expunged. In the case of the key provisions being envisaged by the Strikes (Minimum Services Levels) Bill 2023, it would be perhaps more appropriate to recur to a different metaphor, borrowing not from the science of organ transplant but rather from the literary domain and Mary Shelley's 19th Century three volume novel Frankenstein. In this instance, it is fair to say that the UK government is practicing comparative labour law more or less in the way Dr Frankenstein practices surgery. As the following sections will discuss, the Bill brings together, into a single text and within what is already a rather tormented creature – i.e. the existing British laws on strikes - a selection of restrictions more or less present in other legal systems but that once stitched up together will invariably form a legal abomination, a hideous creature, that will not stand the scrutiny of European and international labour law standards. Poor comparators: Spain and France In a recent commentary3 published by the Institute of Employment Rights, Professor Ewing and Lord John Hendy KC already highlighted the poor choice of comparators for the UK to emulate when introducing MSL legislation. At least since 2018, Spain has been facing complaints before the ILO's Committee of Experts on the Application of Conventions and Recommendations (CEACR) in respect of the "abusive" operation of minimum service levels, ostensibly in breach of Article 3 of Convention 87. More specifically, Spanish unions CCOO and UGT have sent direct requests to the Committee complaining that "in an important number of … essential services, the Government authorities refuse to enter into dialogue with trade unions for the determination of minimum services and instead establish them in a unilateral and abusive manner" something that has "given rise to court judgments finding the determination of minimum services and the replacement of workers abusive"4. In 2023, it was once again put to the CEACR that "the rules on the determination of minimum services continue to be repeatedly violated by the government authorities, and that the CCOO cites, in this regard, 13 recent court rulings that determine, in relation to minimum services, a violation of the right to strike". The Committee has noted "with regret" the Spanish authorities' failures to engage with these allegations in the pasts, reiterating its "requests the Government to provide its comments on the allegations … on the frequent failure by the government authorities to comply with the rules on minimum services". So, to the extent that s.234B of the Bill grants a unilateral and unrestricted power to the Secretary of State to specify minimum service levels, it is safe to suggest that it seeks to transplant within the UK a provision that is already tainted by unlawfulness and incompatibility with international and regional labour standards. France is of...