Posted: 28/02/2023
With no breakthrough in the various public sector pay negotiations in sight, most legal and political commentators are expecting the UK’s Strikes (Minimum Service Levels) Bill - the ‘Bill’ - to become law. While the House of Lords may delay the legislative process, ultimately the Conservative’s parliamentary majority is such that it could be rushed onto the statute books, much to the dismay of the minority in Parliament and the unions.
It is worth recalling that the Conservative manifesto for the December 2019 general election pledged to introduce legislation to ‘require that a minimum service operates during transport strikes’. Of course, much has changed at the top of the Conservative Party since then, but the new Bill goes much further than the manifesto promise.
The Bill would grant the Secretary of State powers to make ‘minimum service regulations’, which could set minimum service levels required during strikes in any services within six sectors: health services, fire and rescue services, education services, transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security.
In itself the extension of the number of services caught by the Bill is contentious because it is by no means certain that transport and education services should be viewed as ‘essential services.’ Some commentators are highlighting that section 240 of the Trade Union and Labour Relations (Consolidation) Act 1992 already makes it an offence to take industrial action in the knowledge or belief that human life will be endangered or serious bodily injury caused.
So their argument is, if the trains are not running and schools are closed, then how is human life endangered or serious bodily injury caused? This begs the question: why is the Bill needed in this form?
While we await the details, the minimum service regulations will be able to affect any strike taking place from the day after the regulations came into force, even if the relevant strike ballot had taken place before this Bill passes. The retrospective effect is not typical of government legislation. It is challenging to see how the breadth, and the retrospective effect, of the proposed Bill will therefore act as a panacea and improve matters.
This may explain why Labour’s leadership is strongly encouraging the Prime Minister to get round the negotiating table with the unions to resolve the pay and conditions impasse, but also explain his current reticence to become personally involved.
When the Strikes (Minimum Service Levels) Bill becomes law, it would allow an employer to give a ‘work notice’ to a trade union concerning any strike affecting a service subject to the minimum service regulations. The work notice would specify which workers the employer requires to work, to ensure the service levels required by the minimum service regulations are met.
It is foreseeable that this risks being a very contentious issue. Employers would not be permitted to request more workers than ‘reasonably necessary’ to meet the minimum service regulations; however, it is also foreseeable that there will be legal arguments over what is ‘reasonably necessary’. This does, however, presuppose that a trade union member would be prepared to cross the picket line. Would a trade unionist be prepared to do that to striking friends and colleagues?
This seems unlikely, especially if you consider this through the eyes of the workers involved, and the history of the union movement in the UK. The Bill will surely be viewed as an attack on the working classes because it removes automatic protection from unfair dismissal for any employee who takes part in a strike contrary to a valid work notice. Any such employee will not be automatically regarded as unfairly dismissed if the reason, or principal reason, for the dismissal is because they took part in the strike rather than complying with a valid work notice. The ‘attack on the working class’ narrative writes itself.
Whilst the current strike laws are far from perfect, this is a ‘pressure cooker’ scenario that may be best left alone. It is the consequences of breaching a work notice for the unions, not just the employees, that cause concern. Where a union fails to ‘take reasonable steps’ to ensure that all employees requested to work by a work notice comply with that notice, the Bill provides that the union will lose its protection from liability for inducing workers to take part in the strike.
The loss of that protection will result in what ‘take reasonable steps’ actually means quickly becoming the hottest of legal and political issues. Pause to consider what the removal of protected status will mean. In such cases, all workers (not just those who act contrary to work notices) who take part in the strike would lose their protection from unfair dismissal, leading to self-evident tension regarding the wisdom of unions balloting members to strike.
This is where last year’s Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations (that allow businesses to hire agency workers to plug staffing gaps caused by strike action) surely come back into the foreground and could be viewed as a combined attack on the right to strike. But, is it workable for agency workers to cross a picket line in those six sectors given such action undermines the unions? The outcome of the pending judicial review against that new law becomes far more important for the union movement in this context.
Undoubtedly, this would leave the UK trade union movement arguing under international law that the UK has breached obligations to guarantee the right to freedom of assembly and association as per Article 11 of the European Convention on Human Rights (ECHR). For now, the UK is still a participant in the ECHR, and UK human rights cases can still be heard by the European Court of Human Rights (ECtHR).
The commitment was established in 2019 in a political declaration between the EU and the UK, which highlighted the UK’s ongoing commitment to respect the framework of the ECHR. The parties also declared that future arrangements should be underpinned by long-standing commitments to the fundamental rights of individuals, including giving effect to the ECHR. The Brexit trade and co-operation agreement codifies this commitment, but it is worth noting that there is no specific mention of the ECHR and the drafting is vague on the consequences of withdrawing from the commitment.
It follows that the UK’s ongoing commitment to the ECHR is uncertain, as there is nothing to prevent the UK from withdrawing as a participant or limiting the application of the ECHR, eg by repealing or amending the Human Rights Act 1998. Watch out for this in the Conservative and Labour manifestos for the next general election.
In this context, consider that at the end of the transition period (31 December 2020 at 11pm) after leaving the EU, EU law that applied in the UK immediately before that point was retained in our domestic statute book. However, the primary objective of the Retained EU Law (Reform and Revocation) Bill - the ‘REUL’ - is to restore the sovereignty of UK legislation and make it easier for departments to amend, repeal or replace retained EU law that does not work for the UK. This includes a sunset clause that will revoke the majority of retained EU law contained in domestic secondary legislation and retained direct EU legislation on 31 December 2023. This would end the supremacy of EU law on 31 December 2023.
Given the current high-level of legal uncertainty, what happens if, in practice, the UK courts then cannot provide the unions with an effective remedy for the loss of their national right to strike?
It remains unresolved in the International Labour Organisation (ILO) whether ILO Convention 87 on Freedom of Association and Protection of the Right to Organise provides an internationally agreed right to strike requiring those countries that have ratified Convention 87 to implement the right in their national law and practice.
This was an issue that was left unresolved when Convention 87 was originally prepared and negotiated, leaving the scope and conditions of the right to strike to be determined at the national level. Convention 87 itself makes no reference to the right to strike, with some commentators arguing it would be more appropriate for the right to be contained within Convention 98, the Right to Organise and Collective Bargaining convention. After all, Article 2 of Convention 98 requires that both workers and employers' organisations (ie trade unions and business confederations) should not be interfered in their own establishment, functioning or administration
The determinations of the ILO’s Committee on Freedom of Association (CFA) on national strike cases and the non-binding ‘moral authority’ of the ILO’s Committee of Experts on the Application of Conventions and Recommendations (CEACR) ultimately leave the unions utilising the ILO for political purposes to effect legal change, rather than being in a position to insist that the UK strike laws are changed. This will most likely become a long game strategy for the TUC requiring significant international trade union support and favourable support from both governments and employer organisations.
It is entirely foreseeable that the UK union movement will view this situation as an existential threat of the right to strike. Consequently, we may see more, not fewer, organised protests, perhaps as an alternative to strikes. If this does happen, then pause to consider the potential tension we will see if new police powers proposed in the Public Order Bill are passed.
Amongst other new powers, the Secretary of State will be able to apply for an injunction where protest action is causing, or is likely to cause serious disruption to key national infrastructure or access to essential goods or services in England and Wales, which surely will see alignment with the minimum services regulations.
The UK Prime Minister Rishi Sunak has said: “The right to protest is a fundamental principle of our democracy, but this is not absolute. A balance must be struck between the rights of individuals and the rights of the hard-working majority to go about their day-to-day business.
“We cannot have protests conducted by a small minority disrupting the lives of the ordinary public. It’s not acceptable and we’re going to bring it to an end.”
The new laws will in practice, mean:
Ultimately, arresting trade unionists for public order offences surely risks history repeating itself, in particular, the case of the Pentonville Five of 1972. For the unaware, in 1972 five London dockers who had been imprisoned after ignoring a court injunction to stop picketing as part of a campaign to save their jobs, walked free from Pentonville prison. A massive upswell of solidarity from across the labour movement and beyond forced the hand of the Conservative government of the time to avoid a TUC-led general strike.
Given the continuing dissatisfaction with the ‘cost of living’ crisis, and the extent of the strike action across the UK, coupled with an increase in activism generally, the end game for these new proposed strike laws could have general strike consequences many of us never thought we would see in the UK. The question is then: will we see a general strike before the next general election, which some feel will not occur until the autumn of 2024? Interesting times lie ahead.
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