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Legislate in Haste, Repent at Leisure? Anti-Strike Laws in the United Kingdom

In January 2023, following months of Industrial Action undertaken across the United Kingdom, the UK government introduced a new Strikes (Minimum Service Levels) Bill to “ensure crucial public services such as rail, ambulances, and fire services maintain a minimum service during industrial action.”

The UK has had a long tradition of legalising and protecting trade unions from being sued for damages. Most of these laws date from the 1980s and were incorporated in the Trade Union and Labour Relations Act of 1992. In summary, a trade union is required to ballot all its members whom it wishes to call out on strike; a majority must vote in favour of action, with 50% participation required from eligible voters.

The UK Government’s stated rationale for adding further restrictions to the freedom to strike is to protect members of the public who could suffer because of strike action. The Bill will require minimum service levels to be set initially across the fire, ambulance, and rail services. The expectation is that the parties (employers and employees) operating within these sectors will reach an agreement over the minimum service levels. A highly controversial element of the Bill is that if no mutual agreement can be achieved, the government will have the power to step in and act by setting the minimum service levels. The political wrangling over the Bill has been fierce, and focus has been deflected onto what other European countries do or do not have in place to safeguard the public. The expedited introduction of the Strikes Bill is perhaps harder to understand. A potential argument could be that the government has been boxed-in by its responsibility to ensure that high inflation does not become a recurring threat as it did in the 1980s. The short-lived period of economic irresponsibility in autumn 2022 put the Bank of England (BOE) and the money markets firmly in charge of UK economic policy, not the government. The BOE will take whatever action is required, mainly through interest rate increases, to reduce inflation from over 10% back to around 2%. To achieve this, public and private sector pay awards would have to be settled well below 10%, meaning that current pay disputes are unlikely to end soon.

The concern is whether legislation emanating from Parliament is properly scrutinised, precisely drafted, and capable of being implemented. This begs the question: where do statutory laws come from? In the UK, if a government has a majority, it can introduce and enact new laws and repeal old ones. An Act of Parliament (primary legislation) will often provide for secondary legislation to fill in details that may change with time. This is achieved using Statutory Instruments, which essentially allow laws to be altered without the Government having to pass a new Act. A non-contentious example of the use of a statutory instrument would be to add a newly banned substance to the Dangerous Drugs Act.

Given the significance of the new Strikes Bill, it seems appropriate to consider the process of how primary legislation is enacted. The Strikes Bill was brought before the House of Commons for its first reading on 10 January 2023, where the title is merely read aloud and ordered to be printed. Two weeks later, it is published as a House of Commons paper, and the debate begins once it is introduced by the minister responsible for the bill. After the debate, the House of Commons votes to decide on whether the Bill will proceed to the next stage. The Committee stage follows, where each clause and any amendments are normally debated by a Public Bill committee. In this case, the Bill was debated on 30th January 2023 by a Committee of the whole House in a single session. Committees are traditionally made up of a majority of government MPs, but the contributions and discussions are expected to provide cross-party scrutiny. The final stage for the Strikes Bill in the House of Commons was the third reading, also on 30th January 2023 where last minute debate can be brought forward before it goes to the House of Lords. In total, from the first reading to passing to the Lords, the Strikes Bill took only 20 days as the government chose to “fast-track” the process.

The Strikes Bill had its first reading in the House of Lords on 31 January 2023, and the second reading was scheduled for 21 February 2023. The steps in the passage of a bill in the Lords are the same as in the Commons. Once the Bill has completed all the stages in both Houses, it requires Royal Assent to become an Act of Parliament. Royal Assent is the Monarch’s agreement to transform the Bill into an Act.

The courts have no power to set aside or challenge an Act of Parliament. If, however, legislation is not properly scrutinised, accurately drafted, or potentially cuts across an international convention to which the UK is a signatory, it can be challenged in the courts by way of judicial review. A recent example of this is that the High Court granted permission for a legal challenge in December 2022 to protect the right to strike. The Trade Unions Congress (TUC) which represents the majority of trade unions, with a total of 5.5 million members, initiated the case against the government. The TUC has opposed new regulations which allow agency workers to fill in for striking workers. From late March 2023 onwards, there will be a judicial review of the ‘anti-worker’ regulations. If the government loses the argument at the hearing, it would be expected to amend its legislation. The final amendments to the Strikes Bill originally brought to the Commons on 10 January 2023 remain to be seen.

The process to create legislation in the United Kingdom has the benefit of continuity in its favour. Introducing new legislation in a fevered, polarised atmosphere, however, would not logically provide confidence that the published Act will bring about an optimum solution. Does agreeing sensible minimum service levels in three different sectors really require legislation? Employers and Unions regularly cooperate and reach agreement on matters that impact their common interests in maintaining a safe, sustainable, financially viable working environment. The legal alternatives to the heavy-handed use of legislation are mutually agreed employer/employee contract amendments or specific sector or sub-sector agreements. These would take more time, but it would at least be people with profound sector knowledge who would frame the agreements.


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