Last autumn the Government introduced the Transport Strikes (Minimum Service Levels) Bill. That Bill never even made it as far as its first debate in the Commons because yesterday it was replaced by the Strikes (Minimum Service Levels) Bill. Can you spot the difference?
The first Bill applied to ‘specified transport services’ (without actually specifying them), but the new Bill is much wider. As well as transport, it also applies to health services, fire and rescue, education, the decommissioning of nuclear installations (and management of radioactive waste and spent fuel) and border security.
What does the Bill do? It gives the Secretary of State at BEIS the power to issue regulations specifying minimum service levels that will apply in the event of a strike taking place in any one of those sectors. An employer facing a strike covered by those regulations can then give a ‘work notice’ to the union identifying the employees that it needs in order to meet the service levels required. When a work notice is given the union must then take all reasonable steps to ‘ensure that all members of the union who are identified in the work notice comply with the notice’. If it fails to do so, then the strike is unlawful.
This Bill is less complex than the Transport Strikes Bill it is replacing. The Transport Strikes Bill had provisions allowing employers and unions to agree minimum service levels – with the Central Arbitration Committee required to step in and make a determination if no agreement was reached. The Secretary of State could issue regulations, but these would not apply if there was an agreement or a CAC determination.
In the new Bill, all that has gone. The Secretary of State has to consult before issuing Regulations and the implication is that he may not feel the need to do so in relation to services where an agreement is in place – but the power to make the Regulations is not limited.
The Secretary of State can issue Regulations relating to minimum levels of service but there are no criteria or guiding principles setting out how that minimum level of service is to be determined. The Bill refers to minimum – as opposed to minimal – service levels. There is nothing whatsoever in the Bill that indicates what a minimum service level will be.
While the Government has been emphasising the need for minimum safety levels to be in place when there are strikes affecting key public services, there is no mention of safety anywhere in the Bill. I suspect that there would be some public sympathy for a rule that some level of emergency service should still be maintained when ambulance workers or firefighters go on strike. I’m not sure how volatile industrial relations in the world of decommissioning nuclear power plants is, but I can get behind the idea that a strike that led to an actual meltdown would be undesirable. Nothing in the Bill itself, however, limits the restriction on the right to strike to these emergency situations. The fact that the Bill also covers education makes it clear that the Government is thinking about more than public safety when it comes to limiting industrial action.
So regulations could be made in relation to teachers’ strikes aimed at making sure that schools retain a skeleton staff so that vulnerable children are taken care of. But they could also go much further than that – for example, preventing any interference with GCSE assessments or even the cancellation of classes. Similarly there is nothing to stop the Secretary of State from preventing any transport strikes that interfere with rush hour or result in any hospital appointments being cancelled.
This is bad lawmaking. The Government is granting itself sweeping powers while claiming that it only intends to use them for a limited purpose. This allows it to sidestep any debate about how the tension between the right to strike and impact that strikes have on public services should be navigated. The Bill has yet to be debated and there are many opportunities to amend it as it progresses through its Parliamentary stages. Surely a key issue that needs to be addressed is the criteria that will be used when setting out minimum service levels. The Bill currently gives a blank cheque to the Secretary of State and I don’t see how that can be sustainable.
It is farcical that there has been a consistent refusal to agree minimum level of staffing, for NHS England at least, presumably because there would be financial consequences on chronically underfunded services. But magically a Sec of State can decide on their own what a minimum level of service should be – I suspect this would be higher than the service offered on a bank holiday, just to avoid upsetting the Daily mail. But maybe this legislation is part of the Brexit Bonus we were promised. I despair