New anti-strike legislation to deliver the biggest blow to worker rights in a generation

Right now, across the UK, the economic situation is dire. Nurses are using foodbanks, the NHS is critically understaffed and underfunded, and thousands are struggling to stay afloat as the cost of living soars.

Subsequently, strike action has been taken by a wide cross-section of union workers from different sectors over the last few months, including NHS staff, teachers, transport workers, and postal workers. While all have their own individual requests, the common theme amongst those striking, or threatening strike action, is a call for better working conditions and pay.

Industrial action has led to countless achievements and the continual safeguarding of the rights and freedoms of workers: minimum wage, the two-day weekend, and the push toward equal pay all included. Now, however, Rishi Sunak’s government is seeking to put an end to strike action, with the Strike (Minimum Service Levels) Bill, the biggest assault on worker’s rights in UK history. As Angela Rayner astutely points out, the Conservative government is no longer clapping for nurses, it’s threatening them with the sack.

The introduction of anti-striking legislation

Since last June, union workers have been taking action against low wages and poor working conditions, however strike action ramped up just before the Christmas period. Just recently, the unions announced that 6 February is likely to witness the biggest strike action the NHS has ever experienced. Likewise, nine out of 10 teacher members of the NEU recently voted for strike action, meaning that teachers are also set to strike next month.

The right to strike is an essential facet of democracy and is legally protected when carried out in accordance with the rules laid down in the Trade Union and Labour Relations (Consolidation) Act 1992, interpreted in line with Article 11 ECHR:

• The right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of their interests.

With the biggest fall in living standards on record, and the government’s continued failure to address the cost of living crisis, the ability to hold industrial action to fight for better pay and working conditions has never been more essential. Yet, instead of addressing the core issues at play and alleviating the financial pressures that so many are facing, the government has introduced a bill that seeks to stop workers from raising their voices and fighting for fairness. That said, with its introduction of the Strike (Minimum Service Levels) Bill, the Conservative government’s most recent attack on rights comes as little surprise and follows a succession of increasingly authoritarian pieces of legislation.

The Public Order Bill, the Bill of Rights Bill, the Retained EU Law (Revocation and Reform) Bill, and the Online Safety Bill, are just some of the proposed pieces of legislation that seek to silence dissent, and strengthen the government’s powers. The Strike Bill itself, has been advertised as a way “to protect the lives and livelihoods” of those in Britain, when in fact, it does the opposite.

The bill has now passed its second reading by 309 votes to 249, and if introduced would see the government enforce “minimum service levels” in key public services. The six sectors covered by the legislation, include:

• Health,
• Rail,
• Education,
• Fire,
• Border security, and
• Nuclear.

As per the legislation, if the ‘minimum service levels,’ are not met, employers would have the ability to sue unions and fire workers. Further to this, as seen in many of the draconian bills proposed recently, the government has used deliberately vague language when setting out the parameters of the legislation. For example, no detail is given regarding the limit of these ‘service levels.’ However, it is clear that the legislation would compel people who have democratically and legally voted for strike action to go to work on strike days.

The bill also affords employers the right to issue ‘work notices’ to the union outlining how many people are required to work, and the kind of work to be performed during the strike to meet the ‘minimum service level.’ As per the bill, this must be issued seven days before the strike, and as little as four days in certain circumstances. The union then must take ‘reasonable steps’ to ensure all union members comply with the notice, or face litigation.

Finally, the bill would amend the 1992 Trade Union and Labour Relations (Consolidation) Act, which protects workers from being penalised if they strike. If passed, a worker could be sacked for not complying with a work notice.

Widespread opposition and party pledges to defeat bill

Unions across the country have voiced their utter dismay at the bill, which builds on similar policies brought in under former Prime Minister David Cameron, including the introduction of minimum turnouts on strike ballots, and the recent law allowing companies to recruit temporary workers to cover for those striking. Leaked emails show that Sunak was considering another disturbing layer to this, which would have seen thousands banned from union membership.

Responding to the government’s introduction of the bill, Rail, Maritime and Transport (RMT) leader Mick Lynch called the legislation a “violation of democratic norms and values” and said that it will be strongly opposed by his union and the entire labour movement “in parliament, the courts and the workplace, if it is put on the statute books”.

Meanwhile, Ewan McGaughey, a Reader in Law, specialising in employment law and enterprise law, at King’s College, London, argues that the bill’s provisions amount to forced labour and further to this, violates international law. This, of course, contradicts the claims made by Grant Shapps, who said that the UK would be coming in line with other countries within Europe with this bill. As TUC outlines, the European unions themselves disagree. For example, the European Trades Union Congress stated: “The UK already has among the most draconian restrictions on the right to strike in Europe, and the UK government’s plans would push it even further away from normal, democratic practice across Europe.”

Charles Umney, Professor in International Work and Employment at the University of Leeds, and Ian Greer, Research Professor and Director of the Ithaca Co-Lab at Cornell University’s School of Industrial and Labor Relations, argue that this most recent clampdown on rights is part of a “wider shift towards a strategy of class discipline.”

Jun Pang, Policy and Campaigns Officer at rights organisation, Liberty, said: “We should all be able to stand up for what we believe in and make our voices heard. Today’s proposals completely undermine the purpose of striking, and will make it much harder for workers to exercise their basic rights. In the face of an unprecedented cost of living crisis, it’s never been more important to protect everybody’s rights to freedom of association and assembly.”

Adding: “These new restrictions must be seen in the context of the Policing Act and Public Order Bill, both of which dramatically curtail the right to protest. Time and time again, this Government has demonstrated its determination to undermine our rights. We must fight back against this power grab and defend our right to organise and strike.”

Both Labour and the Liberal Democrats have positioned themselves in opposition to the bill, and have vowed to vote against it. The former also said that if voted into government, the Labour Party would repeal the legislation. Labour leader Keir Starmer said: “Obviously we will look at what they bring forward. But if it is further restrictions, then we would repeal it and the reason for that is I do not think that legislation is the way that you bring an end to industrial disputes.”

Meanwhile, backbencher Richard Burgon MP stated that the bill is not only a “shameful attack on the democratic right to strike” but also “part of a worrying pattern.” “It’s clear that, faced with mounting unpopularity, the government is curtailing some of the basic freedoms that we have in a democratic society to oppose its decisions: at the ballot box, through peaceful protest and through strike action. This should alarm us all,” he said.

Government watchdog, the Regulatory Policy Committee, a group of independent experts brought together by the Department for Business, Energy and Industrial Strategy, has also criticised the government’s proposals, and its failure to carry out an impact assessment. In a statement, it said: “Government departments are expected to submit IAs to the RPC before the relevant bill is laid before Parliament and in time for the RPC to issue an opinion alongside the publication of the IA. An IA for this Bill has not yet been submitted for RPC scrutiny; nor has one been published despite the Bill being currently considered by Parliament.”

Government shelves plans for workers’ rights watchdog

As the government continues to strip away workers’ protections, elsewhere, it is dragging its feet on creating an independent body to oversee workers’ rights. This delay was announced in early December, after plans were initially set out in June 2021. Back then, the government had outlined that the body would serve as a watchdog, combining the work done by the Gangmasters and Labour Abuse Authority, the Employment Agency Standards Inspectorate and HM Revenue & Customs’ national minimum wage enforcement team.

Rather conveniently, business secretary Grant Shapps, told the House of Commons (HoC) business committee that following Covid, the government instead wanted to focus on the regulatory bodies that “are already there” ensuring that they are “operating effectively.”

In conversation with HRMagazine, Ben Sellers, director at the Institute of Employment Rights (IER), said that the move indicated that the government has never been serious about addressing labour market inequalities or the gaps in employment law. Sellers called both the watchdog and the Employment Bill, “sticking plasters” at best. Further to this, Sellers outlined that the current industrial unrest is a consequence of the poor state of employment law, which he called out of date.

The road ahead

It appears that in the UK, the Conservative government’s tenure in office can no longer be viewed through a lens of just creeping authoritarianism. This bill and others like it spell the beginning of the end for UK democracy, which has already been chipped away at in recent years. Having already passed through its second reading, this piece of legislation is hurtling through the chambers at lightning speed. Likewise, some have criticised the Labour Party for failing to take a stand against the anti-strike legislation with real leadership. Further to this, those on the front line, including Matt Wrack, the general secretary of the Fire Brigades Union (FBU), have outlined that the only way the bill will be defeated is if the public fights it too – casting doubt on the ability of a legal challenge to do the job, fearing that by the time it’s filed and processed it will be too late.

On the 20th of January, it was announced that the Joint Committee on Human Rights would be scrutinising the bill, particularly assessing the human rights implications and how it engages with Article 11 of the European Convention on Human Rights and the right to strike in other international agreements the UK has ratified. It has launched a call for evidence from interested individuals and groups. The deadline for submissions is Friday, 10 February 2023.