Professor Keith Ewing exposes the authoritarian character of the UK governmentâs latest attack on trade unions and why it must be stopped.
Although the Strikes (Minimum Service Levels) Bill is only seven pages long, its implications are enormous â but will be subject to minimal parliamentary scrutiny. The Bill adds to an already intolerable burden of legal restraints on British trade unions. These restraints have their origins in the Thatcher era, and have grown exponentially since. This is despite the fact that the European Court of Human Rights recognises the âright to strikeâ as âone of the most important meansâ available to trade unions to âprotect the occupational interests of their membersâ.
The Bill proposes to give virtually unlimited powers to Grant Shapps, as Secretary of State for Business, Energy and Industrial Strategy, to make what are referred to as âminimum service regulationsâ in relation to ârelevant servicesâ, namely health services, fire and rescue, education, transport, decommissioning of nuclear installations, and border security. The regulations will impose minimum service levels in relation to strikes, with which trade unions will be expected to comply.
Note that the Bill does not impose minimum service levels on employers which could be enforced by the public. So they do not apply if, for example, Avanti announces that trains from Manchester to London will start at Macclesfield, to which passengers will be carried on a replacement bus and from which there will be a reduced service.
A critical feature of what is thus a very one-sided measure is that Shapps gets to decide not only the scope and extent of these potentially extensive six categories, but also what the minimum service levels should be and when they will apply: to all strikes, or to those of more than a prescribed duration, or those involving more than a prescribed number of workers? While there is no attempt to control his power, he is also taking the authority to âamend, repeal or revokeâ any provision made in any Act of Parliament.
In addition, Shappsâ power extends to Acts of the Scottish Parliament and the Senedd respectively, in what is another affront to the authority of both of these bodies and the integrity of the devolution settlement. Not only does Shapps have the power to set aside legislation made by the devolved bodies, but he can do so as part of his general power to interfere with strikes that take place only in Scotland or only in Wales.
Under minimum service regulations, an employer will have the power to issue a work notice to the union. Although there is to be consultation with the union before a work notice is issued, it is for the employer to decide what work is to be done and by whom. The Bill will thus authorise the employer to requisition workers during a strike.
The requisitioning of workers has never been permitted in this country since it was authorised for war purposes under the long-revoked Defence Regulation 58 in 1940. The Bill will thus give employers the power to do something which not even the courts can do, as judges are forbidden by statute to order workers to work against their will during a strike.
Workers who refuse to be requisitioned will be liable to dismissal and will lose protection from unfair dismissal. Worse, there is no protection for shop stewards or branch officials who may be co-ordinating the strike locally. They too can be requisitioned, and as a result required to cross picket lines they have helped to organise, giving local officials the choice of being victimised by their employer, or humiliated before their members.
Duty of trade unionsâ¨After the employer has issued a work notice, trade unions will then be required to take âreasonable steps to ensure that all members of the union who are identified in the work notice comply with the noticeâ. This means that a trade union will be required by an employer â acting with the authority of the State â to take steps actively to undermine its own strike. This is a strike trade union members will have voted for in a ballot with high legal thresholds to support. Such an obligation is unprecedented in British law, and possibly unparalleled in a liberal democracy.
It is, however, unclear what a union can be required to do. For example, does it mean that:
The trade union must notify its members about the work notice? If so, why should the trade union be required to act on the employerâs behalf in this way? â¨The trade union must instruct its members and officials identified in the work notice that they must attend work and cross picket lines if necessary?â¨ The trade union must issue to pickets a list of names of identified workers with an instruction that steps should not be taken to persuade them not to cross picket lines? â¨The trade union must take steps to discipline and if necessary expel any of its members or officials who contrary to its instructions refuse to cross picket lines? â¨This lack of clarity is particularly egregious in view of the severe consequences of a failure to comply. It will be for a court to decide what constitutes reasonable steps for these purposes, without any guidance from Parliament as to what the term means in this context. But if the court decides that the union has not taken reasonable steps, the consequences are wholly disproportionate:An injunction may be granted by a court requiring the strike action to be stopped, despite the fact that all other procedural obligations have been complied with; â¨The strike will be deemed to be unlawful, with the result that all the workers taking part in the strike will lose protection for unfair dismissal.â¨In other words, the individual workerâs right to protection will be lost because of an oversight by the trade union over which the individual has no control.
Authoritarian, illiberal, illegalâ¨The Strikes (Minimum Service Levels) Bill is authoritarian in design, illiberal in effect, and illegal in content as it violates international treaty obligations. It is part of a wider attack on the right to strike which has already seen the removal of the ban on using agency workers as strike-breakers, and the increase to ÂŁ1 million in the damages which employers can recover from trade unions for strike activity.
Shapps has called for still more government power to restrict trade union freedom, including allowing the use of emergency regulations to prohibit strikes. That is an even more chilling prospect: the use of emergency powers to deal with strikes in peacetime has been prohibited since 1920. Unless the Strikes Bill is stopped, it seems likely that there will be more attacks on the way.
Keith Ewing is Professor of Public Law at Kingâs College London and President of the Institute of Employment Rights
This article is based on a presentation given at a rally in defence of the right to strike organised by the Campaign for Trade Union Freedom on 24 January 2023. It was written before the ongoing changes to the Department for Business, Energy and Industrial Strategy and it is unclear how these changes will affect the powers outlined in the Strikes Bill.