Government’s legislation to stop public sector workers taking effective strike action is unprecedented since wartime, says the Institute of Employment Rights
The Strikes (Minimum Service Levels) Bill has only six pages and, if and when it becomes law, would replace the Transport (Minimum Service Levels) Bill which ran to 19 pages, despite applying only to a single sector.
As well as transport, the new Bill covers health, fire and rescue, education, nuclear decommissioning, and border security.
It is so short because it proposes to delegate all powers to the Secretary of State for Business, Energy and Industrial Strategy “to determine the levels of service in relation to strikes as respects minimum services”.
LONE MINISTER
One person, not Parliament, gets to define what is meant by “health services”, “education services”, “transport,” and more. The scope of restrictions can be as wide as they decide. Equally critically, the lone minister would also define the circumstances in which the right to strike can be exercised in sectors whose boundaries they – not Parliament – define.
The services to be provided, the number of people who are to provide them, the time at which they are to be provided, and the manner in which they are to be provided during a strike are to be determined by the minister – not Parliament.
This form of legislation – in which the content of the law is not in “primary legislation” subject to parliamentary scrutiny, but left to ministers – has long been condemned by jurists.
Two House of Lords committees made excoriating criticisms in reports the titles of which speak for themselves: Democracy Denied and Government by Diktat.
Nevertheless, the Bill is proposing that a minster should have the power to “amend, repeal or revoke provision made by or under primary legislation”.
The Bill gives one minister in Whitehall the power to override laws passed by the Scottish Parliament and the Welsh Senedd
Primary legislation for this purpose is defined to include an Act of the Senedd or the Scottish Parliament as well as the Westminster parliament, giving one minister in Whitehall the power to override, with minimal scrutiny, laws passed by the Scottish Parliament and the Welsh Senedd.
This raises serious constitutional issues and is surely designed to provoke outrage.
It is not only the legal powers the minister would take that causes so much concern. Despite protestations about respecting the right to strike, the powers for a single minister would make “the right to strike” no more than the right to make an ineffective protest.
In the framework proposed by Grant Shapps, Secretary of State for Business, Energy and Industrial Strategy when the Bill was drafted, an employer could issue a “work notice” to a union listing individuals who are required to work and the services they are required to provide.
For the first time since the Second World War, Parliament is being asked to authorise the requisitioning of workers.
A worker who fails to comply with the work order would lose legal protection against unfair dismissal.
Once a work notice is issued, a union is required to take “reasonable steps” to ensure that all members covered comply with it.
A big question is what a union would have to do to show it had taken “reasonable” steps?
Instruct members that they must not strike? Will unions be required to discipline or expel members who refuse to cross a picket line?
Failure by a union to take “reasonable steps” would render the strike unlawful. This, crucially, would remove unfair dismissal protection from every employee on strike.
Yet these employees could in no way be culpable for the supposed failure of the union to take “reasonable steps” to ensure that the requisitioned workers comply with instructions from their bosses.
AFFRONT TO HUMAN RIGHTS
Little wonder that trade unions are enraged. We should all be enraged. The Bill is contemptuous of parliamentary democracy and is an affront to human rights. It affects us all.
In time, no doubt other concerns will be revealed. The Bill goes well beyond the government’s 2019 election manifesto commitments and so lacks any electoral mandate.
This should embolden parliamentarians of all parties to do their constitutional duty: deny ministers the authoritarian powers they crave, and defend the liberties of the people.
