Strikes (Minimum Service Levels) Bill
12.This Bill came to the House of Lords on 31 January 2023. The Bill’s long title states that the Bill makes provision about minimum service levels in connection with the taking by trade unions of strike action relating to certain services. The (then) Department for Business, Energy and Industrial Strategy furnished us with a delegated powers memorandum (“the Memorandum”).
13.We draw attention to two delegated powers in the Schedule to the Bill.
New section 234B(1) of the Trade Union and Labour Relations (Consolidation) Act 1992
14.Paragraph 2 of the Schedule introduces a new section 234B(1) in the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”):
“(1) The Secretary of State may, for the purpose of enabling work notices under section 234C to be given, make provision by regulations for levels of service in relation to strikes as respects relevant services (“minimum service regulations”).”
15.This is a Bill that deals with minimum service levels during strikes. Yet there is nothing in the Bill saying what those minimum service levels are. We shall only know when Ministers make regulations after the Bill is enacted. This is small comfort to Parliament, which is considering the matter right now.
16.The Memorandum says that new section 234B(1) of the 1992 Act empowers the Secretary of State to make regulations setting out levels of service that an employer can require its workers to provide in relation to strikes as respects relevant services.2 Paragraph 14 of the Memorandum offers a mere nine lines of justification for a power that imposes a significant legal restriction on the right to strike.
17.First, the Government are “of the view that the detail required to set the level of service for each relevant service is not appropriate for primary legislation”. But the Memorandum does not explain why setting out any detail on the face of the Bill would be inappropriate. Parliament is not allergic to matters of detail, particularly where it relates to an important matter such as the right to strike.
18.Second, the Memorandum mentions that the regulations will be made after mandatory consultation. But if the Government had undertaken pre-legislative scrutiny, the Bill could have contained appropriate detail and had the benefit of consultation.
19.The Government have chosen to put no detail in the Bill in relation to minimum service levels, leaving the matter entirely to regulations. Important matters of detail should be included on the face of the Bill, perhaps with a power to supplement those matters in regulations.
20.Third, the Memorandum acknowledges that this is a significant power because it will introduce a key provision in the industrial action regime.3 This is true. But rather than being a reason for the regulations to be subject to the affirmative procedure, it is a reason why this matter should be on the face of the Bill rather than be left entirely to regulations (even affirmative regulations).
21.Fourth, the Memorandum offers just the one example of what minimum service levels might contain: “the level of service in the transport sector might need to have regard to the service requirements at different times of day and at weekend or bank holidays”.4 Further examples in the Memorandum would have afforded more context for Parliament. The regulation-making power in new section 234B(1) of the 1992 Act could have set out an exhaustive or non-exhaustive list of the matters that could be included in regulations. This is common practice. But it was not followed here.
22.Finally, if indicative draft regulations had been published alongside the Bill, it would have assisted Parliament’s scrutiny of the Bill. Indicative draft regulations can demonstrate that matters have (or have not) been properly left to secondary legislation. And the Government must have some idea how they propose to exercise these powers.
23.Given the absence of an exhaustive or non-exhaustive list in the Bill of the matters that can be included in regulations, the unconvincing reasons for this power in the Memorandum, and the absence of indicative draft regulations illustrating how the power might be exercised, the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels in new section 234B(1) of the 1992 Act is likely to be exercised. In the absence of a satisfactory explanation, we regard the power as inappropriate.
New section 234B(3) of the 1992 Act
24.This Bill relates to minimum service levels in relation to relevant services. We have seen that the Bill does not define, or give any indication of, what is meant by minimum service levels. As for the meaning of “relevant services” we know nothing save that they must fall within one of six categories: health, fire and rescue, education, transport, nuclear, and border security.
25.The services covered by the Bill are as fundamental as the minimum levels of that service. Once again, the reasons offered by the Memorandum are not convincing.
26.First, the Memorandum says that the detail required accurately to describe the relevant services under each category of service set out in the Bill is not appropriate for primary legislation. But the Memorandum does not explain why setting out at least some detail on the face of the Bill would be inappropriate.
27.Second, regulations will enable the Secretary of State to make the decision at the appropriate time, after consultation and in the light of relevant evidence. But if the Government had undertaken pre-legislative scrutiny, the Bill could have contained appropriate detail and had the benefit of consultation.
28.Third, regulations will allow modifications to the list of relevant services as circumstances change. However, were the Bill to define more fully the meaning of relevant services, it would be possible to incorporate a power to make changes by regulations rather than the Bill being completely silent on the matter with everything left to regulations. Once again, indicative draft regulations would have assisted us in scrutinising the powers in this Bill.
29.The Memorandum offers a precedent for the new power in section 234B(3). Under section 226(2E) of the 1992 Act, an enhanced majority is necessary in strike ballots (40% of those entitled to vote must have voted in favour) in relation to “important public services”, a term that is defined in regulations.
30.We are not convinced by this precedent. The 40% enhanced majority appears on the face of the 1992 Act, albeit with a power to apply it to important public services. By contrast, the limitations on the right to strike in relation to minimum levels of relevant services do not appear on the Bill at all and are left to regulations.
31.The meaning of “relevant services” is as important as the meaning of “minimum levels of service”. For the reasons given earlier in relation to the power in new section 234B(1) of the 1992 Act, the House may wish to press the Minister to provide an explanation of how the power to define “relevant services” in new section 234B(3) of the 1992 Act is likely to be exercised. In the absence of a satisfactory explanation, we regard this power as inappropriate.
2 Para 12.
3 Para 15.
4 Para 14.