Strikes (Minimum Service Levels) Bill Contents

Strikes (Minimum Service Levels) Bill

Introduction

1.The Strikes (Minimum Service Levels) Bill was introduced in the House of Commons on 10 January 2023 and brought to the House of Lords on 31 January 2023. Second reading took place on 21 February 2023 and committee stage is scheduled to begin on 9 March 2023.

2.In the Government’s words, the Bill amends the Trade Union and Labour Relations (Consolidation) Act 1992 to:

3.Services subject to minimum service levels are:

Skeleton legislation

4.The Bill is skeletal in nature and important terms are left to be defined in regulations.

Minimum service regulations

5.The Schedule inserts a new section 234B into the Trade Union and Labour Relations (Consolidation) Act 1992. The new section empowers the Secretary of State to make “minimum service regulations” providing for required levels of service in relevant services in the event of strikes.3 The Secretary of State can specify the relevant services for which minimum service level regulations are being made, provided they are drawn from the list of services above.4

6.Where “minimum service regulations” have been made with respect to a relevant service, an employer may give a “work notice” to a trade union in relation to a strike.5 The work notice must identify the persons required to work during the strike in order to secure minimum service levels and the work those persons are required to carry out in order to ensure that those levels of service are provided.6

7.New section 234C(7) provides that, before giving a work notice, an employer must “consult the union about the number of persons to be identified and the work to be specified in the notice”, and “have regard to any views expressed by the union in response.”7 This consultation duty also applies if the employer varies the work notice.8

8.Regulations under new section 234B are subject to the draft affirmative procedure.9 New section 234F provides that before making regulations under section 234B the Secretary of State must consult such persons as the Secretary of State considers appropriate.10

9.The Government is “of the view that the detail required to set the level of service for each relevant service is not appropriate for primary legislation.”11 On the power to select the services to which a regulation should apply the Government has said:

“the detail required to accurately describe the relevant services under each category of service set out in the Bill is not appropriate for primary legislation. It is also essential to maintain a degree of flexibility in relation to this provision.”12

10.In The Legislative Process: The Delegation of Powers we said:

“Broad or vague powers, or those sought for the convenience of flexibility for the Government, are inappropriate. There must be a compelling justification for delegated powers and it is for Parliament to decide if that justification is acceptable.”13

And:

“Skeleton bills inhibit parliamentary scrutiny and we find it difficult to envisage any circumstances in which their use is acceptable. The Government must provide an exceptional justification for them … it cannot rely on generalised assertions of the need for flexibility or future-proofing.”14

11.We are concerned that there is little attempt in the Bill to define “minimum service levels”. It is not clear whether regulations establishing “minimum service levels” will apply to a particular phase of strike action between particular dates or more broadly to any industrial action undertaken by employees in one of the service areas listed in the Bill. The Bill does not provide any guiding principles on what should constitute minimum service levels (such as, for example, the protection of human health). These factors hinder the ability of Parliament to scrutinise the policy underlying the Bill.

12.Limited parliamentary scrutiny is compounded by the subjective and vague duty on the Secretary of State to consult “such persons as the Secretary of State considers appropriate” when making regulations under new section 234B.

13.We recommend that indicative draft regulations be published during the Bill’s passage through the House so that Parliament can properly assess the Government’s interpretation of the term “minimum service levels” and better scrutinise its application to different services.

Consequential powers

14.Clause 3 contains a Henry VIII power allowing the Secretary of State to make provision that is consequential on the Bill. This may include amending, repealing or revoking primary and secondary legislation.15 This power applies to existing legislation and legislation passed later in this session of Parliament.16 Regulations made under this clause are subject to the draft affirmative procedure if they amend or repeal primary legislation.17

15.The Government’s justification for this clause is:

“The Bill already includes a number of changes to the 1992 Act as a consequence of the provisions in the Bill but it is possible that not all of the necessary consequential amendments have been identified in the Bill’s preparation. The Government considers that it would therefore be prudent for the Bill to contain a power to deal with these in secondary legislation and therefore considers it appropriate to include this power so that full effect can be given to the provisions of the Bill.”18

This does not address the question of why a power to amend Acts passed later in this session is necessary.

16.Most bills include power to make consequential provision. However, the skeletal nature of this Bill risks giving clause 3 a far-reaching effect which is difficult to anticipate.

17.It is now common practice to include in bills a power to amend future Acts to make consequential provision (template wording is included in the Office of the Parliamentary Counsel Drafting Guidance).19 However, as a matter of principle, it is unacceptable to include such a power in legislation unless a satisfactory explanation is provided by the Government.

18.In this case, the Government has provided no explanation for why the prospective consequential power in clause 3(2)(b) is necessary. In a Bill in which delegated powers are already widely framed and uncertain in their reach, extending these further to unpassed law is constitutionally dangerous. The Government should explain why clause 3(2)(b) is necessary. Unless the explanation is satisfactory, it should be removed from the Bill.

Impact assessment

19.No impact assessment on the Bill was published until 21 February 2023, the day on which the Bill received its second reading in the House of Lords. The impact assessment was therefore unavailable during the Bill’s passage through the House of Commons and available to the House of Lords only as the Bill was first debated there.20 The Government’s ‘Guide to Making Legislation’ requires that impact assessments be provided when approval for a bill’s introduction is sought from the Parliamentary Business and Legislation Committee and made available to Parliament on introduction.21

20.Late provision of impact assessments contradicts the Government’s ‘Guide to Making Legislation’ and hinders scrutiny.

Compliance with international obligations

21.Article 11 of the European Convention on Human Rights (ECHR) protects the rights to freedom of association with others, including the right of everyone to “form and to join trade unions for the protection of his interests”.22 This right can be restricted where:

“necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”23

22.Article 14 ECHR stipulates that the rights in the Convention should be enjoyed “without discrimination on any ground”.24

23.Convention 87 of the International Labour Organization guarantees freedom of association and protects the right to organise.25 International Labour Organization jurisprudence deems the establishment of minimum service levels permissible but only in limited circumstances, including “in public services of fundamental importance”.26

24.The Government considers the Bill compatible with the ECHR and convention 87 of the International Labour Organization.27 The Joint Committee on Human Rights has been considering these issues.

25.While we make no determination on the Bill’s compliance with the UK’s international obligations, we emphasise the importance of ensuring that legislation is compliant with those obligations.


3 Strikes (Minimum Service Levels) Bill, Schedule (new section 234B(1))

4 Strikes (Minimum Service Levels) Bill, Schedule (new section 234B(3) and (4))

5 Strikes (Minimum Service Levels) Bill, Schedule (new section 234C(1))

6 Strikes (Minimum Service Levels) Bill, Schedule (new section 234C(4))

7 Strikes (Minimum Service Levels) Bill, Schedule (new section 234C(7))

8 Strikes (Minimum Service Levels) Bill, Schedule (new section 234C(9))

9 Strikes (Minimum Service Levels) Bill, Schedule (new section 234F(4))

10 Strikes (Minimum Service Levels) Bill, Schedule (new section 234F(1))

13 Constitution Committee, The Legislative Process: The Delegation of Powers (16th Report, Session 2017–19, HL Paper 225), para 48

14 Constitution Committee, The Legislative Process: The Delegation of Powers (16th Report, Session 2017–19, HL Paper 225), para 58

19 The Office of the Parliamentary Counsel, Drafting Guidance (June 2020), p 91: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/892409/OPC_drafting_guidance_June_2020-1.pdf [accessed 6 March 2023]

20 Department for Business and Trade, Impact Assessment: Department for Business and Trade (21 February 2023): https://bills.parliament.uk/publications/49906/documents/2979 [accessed 2 March 2023]

26 “[T]he Committee is of the view that the establishment of minimum service in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance.” International Labour Organization, ‘Report No 333’ (March 2004), para 990: https://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2907631 [accessed 2 March 2023]




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