The Bill was prefigured by an attempt last year to introduce a minimum level service bill for transport. It stalled at second reading in the Commons as the government began to realise it was facing strong commitments to industrial action by more than just railway workers.
This Bill covers
• Health services
• Fire & rescue services
• Transport services
• Decommissioning of nuclear installations and management of radioactive waste and spent fuel and • Border security
These sectors will cut across both the public and private sectors and could include ancillary as well as core operational roles.
The sign of a rushed and badly drafted piece of legislation is when a government minister can’t answer basic questions about it. This is clearly the case. What is covered by transport? Does it include freight and taxi drivers? Which posts are covered in education? A specific question was asked about whether Amazon which is sending out covid tests is covered under health services and these couldn’t be answered.
What we do know about the Bill is that it requires employers to issue Work Notices which outline not just the work to be covered, but specifically who should do that work. This may be specific posts, but it can be named people. If the person required to work chooses to continue to strike, they lose protection from unfair dismissal. This would allow employers to target trade union representatives and anyone they want to get rid of.
This Bill totally misunderstands the relationship between a trade union and its members. For example, it talks about a union’s role in enforcing Work Notices: it prohibits “an act done by the union to induce a person to take part, or to continue to take part, in the strike.” It allows employers to target union funds if they do not force people to work.
Trade unions don’t call strikes, members call strikes. Over the decades Tory governments thought that strikes could be prevented by having paper ballots, and then requiring that ballots be sent to the member’s home address. But these pesky trade unionists do occasionally support strike ballots. It is beyond question that a strike can only take place if a significant percentage of members vote for it.
The authors of this Bill have a fundamental misunderstanding. Trade unions represent their members, they do not police them. It also ignores the fact that during most strikes care is taken to ensure that vulnerable people are protected from harm.
The BMA explains in a briefing that these powers and proposals are not necessary to protect public safety, particularly given that ‘life and limb’ protections, which exempt certain categories of staff from strikes where there may otherwise be a direct danger to any person, already exist in domestic legislation. It is an established principle that healthcare unions will coordinate strike action in a way that allows critical services to continue.
The majority of workers in these areas deliver far more hours than they are contracted on a regular basis. If teachers, doctors and nurses and train drivers worked to rule their services would grind to a halt. They regularly deliver maximum levels of services, not minimum.
The trade union members covering these vital services have long been calling on Governments to ensure safe-staffing levels, but to no avail. It is ironic that the Government is now focusing on minimum staffing levels as a reason to curtail strike action, when protecting services is part of why many workers are striking in the first place. If the public had to choose between the government or the workers to set minimum standards for essential services, I think we can guess who they would trust to do what is in the best interests of service users, and it wouldn’t be this government that has allowed those very services to be driven into the ground.
Every Bill going through Parliament has to give assurances that it meets human rights commitments and be aligned with any treaty obligations. The Joint Committee on Human Rights has stated that this Bill is incompatible with Article 11 of the European Convention on Human Rights which protects people’s right to be part of a trade union. John Hendy, the Labour rights lawyer who is in the Lords has stated that this Bill is in breach of the UK’s commitment to the International Labour Organization: in the 1950s the UK was the first to ratify Convention 87 which protects the right to strike.
The ILO has specified that minimum service levels are permitted under Convention 87, but only subject to four conditions. Firstly, the minimum service level must not be set by the state. Secondly, the minimum service levels should be set on a bipartite basis, through employers’ and union representatives’ negotiations. Thirdly, workers who prefer to strike and who refuse to serve as requisitioned workers for a minimum service level must not be penalised by being sacked. Fourthly, only in certain sectors can minimum service levels be permitted.
Far from bringing the UK in line with other European countries, as the Government have argued, the Bill represents a significant departure from their practices where pay and minimum service levels are typically decided through collective negotiations and agreement, with disputes settled between trade unions and employers. Instead, the Bill makes no reference to collective bargaining nor does it subject minimum service levels to independent arbitration.
Other aspects of this Bill take us into the concerns about our constitution. The Bill is called a skeleton bill. This means that the substance of the legislation is not discussed in parliament but is written up after the Bill has passed into law using the delegated powers process. At some point after the Bill is passed the detail is added with only minimum scrutiny using Statutory Instruments. These have been described as Henry VIII powers and have been used increasingly by this government.
This undermines the supposed sovereignty of Parliament. The Secondary Legislation Scrutiny Committee condemned it in a report entitled Government by Diktat: A call to return power to Parliament. The Committee warned that “the balance of power between Parliament and government has for some time been shifting away from Parliament”. We are experiencing government by the cabinet or even just the prime minister. Not government by parliament. Much is said about the importance of Parliamentary Sovereignty and how it is fundamental to the Union. Well, it is being whittled away in every Bill of this type.
That brings me to final point I want to discuss. The impact for the devolved administrations. The government appears to have given up even pretending that it respects the devolved administrations. There was no consultation with them about this Bill even though it will apply to devolved public services which Welsh and Scottish Ministers are responsible for. Health services, Education, Fire & rescue services, Transport services and the decommissioning of nuclear plants.
The Welsh government is concerned that “If passed, the Bill will provide a UK Minister with sweeping powers to make regulations which set minimum service levels during strikes in areas that are considered to be fully devolved. UK Ministers should not be able to exercise such powers over services over which they have no electoral mandate.”
The Scottish Government quite rightly objects to the Bill interfering with its Fair Work principles that it has negotiated with unions and employers. The overriding of the devolved administration makes the case industrial relations being devolved.
STUC general secretary Roz Foyer said: “We need to see the Scottish Government, in so far as possible, challenge this legislation, whether that be through the Parliament or, if need be, through the courts. Workers in Scotland who are employed by Scottish Government bodies will now be placed in the grotesque position of having a UK Government Secretary of State selectively cherry picking who can and can’t take industrial action."
Beth Winter MP for Cynon Valley in Wales argues that "The purpose of this piece of legislation is to dismantle the trade union movement and workers’ rights, while transferring yet greater powers to the Government and overriding the devolution settlement."
Chris Stephens and a few SNP MPs moved amendments and spoke in Parliament, but I am not getting a sense of powerful opposition by the SNP to the imposition of this Bill on Scotland.
The three candidates for the leadership of the SNP all mouthed the opposition to the Tory plans at the recent hustings for the SNP trade union group, but there is little evidence that any of them would take a strong stand for workers’ rights.
An amendment has been moved by the LibDems for discussion in the House of Lords in late March which would require the Government to consult the Welsh and Scottish Governments on minimum service levels, but such a bill clearly requires more than just "consultation".
The Bill will pass. There may be some opportunity to make small amendments as it passes through the House of Lords, but as I said much of the damage will happen in secondary legislation.
Labour is committed to repeal this Bill and every effort must be made to hold them to that commitment and ensure the repeal is a priority for a Labour government. We should also be demanding the repeal of other legislation that restricts the rights of trade unions.
It is important that trade unions keep their links to the Labour Party. We should remember that after years of resisting the idea of a party of labour and preferring to work with the Liberals the Taff Vale judgement made the unions realise that they needed political as well as industrial muscle. The judgement allowed employers to sue trade unions for damages caused by a dispute.
We are back in Taff Vale territory now and it is vital for both trade unions and Labour that we remember why the party was formed and why the pressures remain the same today.
Pauline Bryan is a Labour Peer and Convener of the Red Paper Collective. This text was originally delivered as an introduction to a Political Education session in Glasgow Kelvin CLP, March 2023.