The Strikes (Minimum Service Levels) Bill

Abstract

The Strikes (Minimum Service Levels) Bill K D Ewing (bio) and Lord John Hendy KC (bio) The British government has launched yet another attack on British trade unions. At the time of writing, the Strikes (Minimum Service Levels) Bill is currently making its way through Parliament. The Bill will impose, for the first time, minimum service levels ("MSLs"), to be observed in strikes in six sectors of the economy: health services, fire and rescue services, education services, transport services, nuclear decommissioning, and border security. Introduced in response to high levels of industrial action by public service workers in particular, the Bill has been widely condemned. In this article we address three aspects of the Bill which attracted adverse criticism: its form, its content, and its incompatibility with human rights obligations of the British government. But before addressing these questions, it is to be emphasised that the Bill is not to be seen in isolation, but in the context of a wider attack on workers' rights and political freedoms. As put succinctly by a senior Labour MP: the Bill is part of a longer term, anti-democratic trend, and part of a raft of anti-democratic legislation passed by the Government. It is a trend of transferring power away from workers and citizens, and eliminating their limited rights and freedoms in the workplace and across society Constitutional Objections A remarkably short measure of a page and a half plus one appendix of four pages, the Strikes (Minimum Service Levels) Bill replaces the now redundant Transport (Minimum Service Levels) Bill (introduced only months ago) which in contrast ran to 19 pages, despite applying to a single sector. Yet the new Bill extends to five additional sectors. The reason why the current Bill is so short is because it proposes to delegate to ministers the power to set out all the relevant law in regulations. It is true that regulations have to be approved by Parliament in the normal way. But Parliament is not permitted to amend draft regulations, which receive only the most minimal scrutiny. So it is government – not Parliament – which will make regulations "to determine the levels of service in relation to strikes as respects minimum services" in each of the various sectors. Furthermore, it is government, not Parliament, which sets by regulation the boundaries of what is included in each of the very broad sectors. There is no guidance in this skeleton Bill about how ministers are to use these extraordinary powers. The sectors are open-ended, as is the power to set the minimum level of service required. Is it 20 percent normal services? Or 50 percent? Or 90 percent? This is for ministers alone to determine. It is obvious that by reserving the sole authority to ministers to set the MSLs, they can be set at such a high level that any strike will be rendered largely ineffectual. It is a point well made by many trade unionists that whilst the government proposes to impose MSLs on workers and their unions, MSLs for normal times in public services are usually lacking and where they do exist (on the railways and for the ambulance service), are constantly breached – without penalty. There is a real possibility that MSLs will be set in some sectors at a level higher than the service usually provided. Extraordinarily, the Bill also proposes that ministers should have the power (by regulation) to "amend, repeal or revoke provision made by or under primary legislation". So primary legislation passed by Parliament can be amended by secondary legislation drafted by the minister without full Parliamentary scrutiny. This is what lawyers call a "Henry VIII" power, a power which usurps the function of Parliament. The use of skeleton Bills with Henry VIII clauses has been unsurprisingly the subject of excoriating criticism by two important committees of the House of Lords in recent reports, the titles of which speak for themselves: Democracy Denied and Government by Diktat. But it gets worse. The primary legislation which ministers can amend or repeal is defined to include an Act of the Senedd in Wales or the Scottish Parliament. Pause there. What is being proposed is that ministers in the United Kingdom government...