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King’s Votes & King’s Court: Clearing up the UK’s Anti-Strike Bill

Picture credits: Maggie Sully - Alamy Photos

Staff writer Filipa Fonseca discusses the contentious Anti-Strike Bill making its way through Westminster and the impact its passing could have.

Since passing into the House of Lords in late January 2023, there’s been widespread outcry and reporting on the UK’s Strikes (Minimum Service Levels) Bill, colloquially termed the Anti-Strike Bill. 

What will it do?

The Anti-Strike Bill is legislation that calls for the imposition of minimum service requirements during strikes in the following sectors:

  • health services;
  • fire and rescue services;
  • education services (including further education);
  • transport services;
  • decommissioning of nuclear installations and management of radioactive waste and spent fuel; and
  • border security.

A minimum service level is the level of functioning that workers must guarantee during industrial action. 

Under the bill, employers would be able to submit work notices after industrial action is announced, identifying the workers that are required to work during the strike up until a week before the earliest strike day. If employees listed on the work notice do not comply, their strike action is no longer protected, meaning that workers who do not comply can be sacked by their employers. The Bill includes amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 that removes protections from unfair dismissal under these circumstances. In cases where the relevant union doesn’t take reasonable steps to ensure all workers comply with work notices, every employee (not just those that act contrary to the work notices) who takes part in the strike action would lose their protection from unfair dismissal.

The provisions for minimum service requirements would be decided by Business Minister Grant Shapps, as opposed to collective agreement between employers and unions.

The Department for Business, Energy and Industrial Strategy and Minister Shapps have expressed that they aim to begin implementing the Bill, should it pass, with fire, ambulance and rail services, only extending to other sectors if that should become necessary, expecting ‘parties in these sectors to reach a sensible and voluntary agreement between each other on delivering a reasonable level of service when there is strike action’.

Why?

This clampdown is a response to UK rail and Transport for London (TFL) strikes ongoing since Spring 2022, as well as multiple other public sectors striking in 2022. The Bill claims its goal is “protecting the public” from the effects of the strikes.

However, the most recent steps towards passing the legislation only emerged under Liz Truss’ leadership, through then Transport Minister and current Business Minister Shapps’ 16-point plan to curb “militant trade unions”. Since the plan’s introduction, two of its points have been implemented (allowing agency staff to temporarily replace workers during strikes; and increasing the fines for unlawful action), with the Strikes Bill 2022-2023 in line with achieving another of its points, implementing minimum service levels during strikes. 

Other questionable points on this plan include imposing absolute limits on numbers attending pickets, prohibiting use of inflammatory language on pickets, and limiting the ballot mandate to one event of strike action (under current legislation, unions can freely organise any number of strikes within a six month period). Prime Minister Rishi Sunak supports the introduction of minimum services, but it is still unclear whether he supports the 16-point plan in its entirety.

Beyond the fact that the Anti-Strike Bill has already been widely decried by union leaders as “undemocratic, unworkable and illegal”, it is increasingly dubious whether it doesn’t violate “certain obligations” (as so generously quoted on the Bill’s briefing page) that the UK is bound to uphold under international law. 

Concerns with International Law

For example, under Article 11 of Convention 87 of the International Labour Organisation (ILO), the government is required to ‘take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.’ Additionally, as the president of the King’s College London (KCL) branch of the University and College Union (UCU), Ewan McGaughey, points out in an LSE blog article: “the ILO does not “support” minimum service levels. It has never said a plan like the Shapps Bill is a “proportionate” balance. It requires that for any minimum service levels at all, unions “must be able to participate” in setting them. Only if that is not possible it should be settled by “an independent body having the confidence of the parties”, not a minister or employer (ILO 2018, §§882-3).”

Yet another wrench in the gears of the bill includes the post-Brexit trade deal with the EU, which mandates that the UK and EU “respect” the ILO’s conventions, including the freedom to strike. Another is that the head of the UN’s agency for workers’ rights has recently denied that the organisation backs the UK’s new strike laws. Unions are also taking legal action against the Bill based on human rights law, and several have filed a complaint with the ILO to get a verdict on whether the UK is in breach of international worker rights laws. It is also expected that the legislation will face greater difficulty passing in the House of Lords, likely kicking back the possibility of minimum service levels for another several months. 

According to Shapps, however, this bill is a “very moderate” approach, pointing out that in some countries the emergency services are banned from going on strike in the first place. 

If the Bill does pass, it is not clear as to whether it would actually provide an effective solution for its cause; Transport Secretary Mark Harper stated before Parliament in December that it “may well improve the service passengers receive on strike days” in the future but it would not “help with the industrial action that we face today”.

What about EU Countries with Minimum Service Laws?

The Bill also maintains that these changes to legislation regarding minimum service levels are already present in other European countries, such as Spain, France and Italy. What it does not mention is that these countries have comparatively fewer obstacles in the way of workers organising strikes. To illustrate:

According to the European Public Service Union’s (EPSU) factsheet, Spain only imposes minimum service levels on strikes held in “essential public services”; those understood under the ILO to only concern the services that “the interruption of which would endanger the life, personal safety or health of the whole or part of the population”. Under the UK’s Trade Union Act 2016, “essential public services” changed to the less limiting “important public services” (which raised concerns over possibly violating international law during its committee stage). This includes health services, education of those aged under 17 (this has been amended in the Strikes Bill 2022-2023 to now include all education services), fire services (amended to fire and rescue services in the Strikes Bill), transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security.

In Spain and Italy, strikes in the public sector only require 10 days’ notice to be lawful. In the UK, two weeks’ notice is required. As Ewan McGaughey compares, “In France, the so called “minimum service” laws simply require 48 hours’ notice for transport unions to strike (e.g., Transport Code article L1324-7), or five days for health workers (Labour Code article L-2512-2).” 

Workers’ ‘freedom’ to strike in the UK, were the bill to pass, would not be on equal footing to France, nor Italy, nor Spain. 

Other reasons given for the implementation of this Bill include the record-high days lost to strike action and its subsequent impact on the economy. According to the Office for National Statistics (ONS), from June to December 2022, almost 2.5 million days were lost due to strike action in the UK. 

Mysteriously, the fact that it would have been cheaper to settle union disputes (specifically relating to the UK rail strike) with pay rather than refuse their conditions, as per the Guardian’s report, was absent from the Bill’s briefing page.

Response from the House of Lords

The Bill was discussed at length during its second reading on February 21 2023, where it was criticised multiple times for several reasons, including its violation of international law, vague phrasing concerning the Bill’s targeted sectors, and its removal of unfair dismissal protections for striking workers.

It was further described as ‘draconian’ and labelled a ‘skeleton bill’ repeatedly, with many members of the House criticising its Henry VIII clause. This clause allows the Secretary of State to amend or repeal provisions in Acts of Parliament using secondary legislation. This is considered problematic as it shifts powers to the executive, and grants ministers the power to create laws and fill in the Bill’s details after the Bill has been approved, with limited scope for Parliamentary scrutiny. As described by Baroness O’Grady, it “would give the Secretary of State sweeping powers and deny proper parliamentary scrutiny and accountability”. Similarly,  Lord Strasburger felt “this Bill is merely the emaciated skeleton of a Bill because all the meat, all the substance, is for Ministers to decide later, however the mood takes them, after Parliament has had its small say.”

Current running amendments to the Bill include removing the Secretary of State’s power to change primary legislation through later regulations, limiting the Bill to only apply to England, identifying specific sub-sectors that are exempt from minimum service requirements, and ensuring that minimum service levels are agreed upon between employers and trade unions. The Bill’s committee stage, where amendments will be discussed and agreed upon, began on March 9, 2023 and will have a second sitting on March 23. Currently no amendments to the Bill have been passed.

Of course, it is possible that the Anti-Strike Bill will not pass into law or will be heavily amended. But it is worth bearing in mind that this is what Mr Sunak’s government is working to deliver.

When it gets to the point where refusing to settle pay with unions and resolve disputes costs the economy over 1 billion pounds and UK rail tens of millions per striking week it’s clear that it is no longer about protecting the public or growing the economy. It is not about being “responsible about public sector pay”. It is about cutting labour rights and being openly antagonistic towards fundamental human rights. It is about making the public lose faith in its institutions and crumbling industrial relations. If the Prime Minister’s pledge this year to “grow the economy, creating better-paid jobs and opportunity right across the country” is genuine, this is a very funny way of going about achieving it.

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