No to the Minimum Service Levels Bill: an interview with John Hendy KC

GMLC campaign volunteer Nick Sloan spoke to Lord John Hendy KC about the new Strikes (Minimum Service Levels) Bill and its dangers – with additions and explanation by Jake Marshall.

We spoke to Lord John Hendy KC amidst the backdrop of a strike wave where an estimated 1.5 million workers have taken recent strike action for better pay and conditions – strikes which have been roundly condemned by the government, and which they are legislating against. The Strikes (Minimum Service Levels) Bill and Retained EU Law (Revocation and Reform) Bill, as Hendy and Ewing put it in a recent article, “represent an unprecedented attack on the ability of workers to enjoy a decent, secure and dignified working life”.

The current strike wave

The current strike wave is taking place amidst an unprecedented cost-of-living crisis for working-class people, which Hendy was keen to discuss. “It is clear that pay at the moment is not adequate, and many people are having to choose between heating and eating. The cost-of-living crisis has meant that people are forced to strike, as they need increased pay to survive. The government has not addressed the concerns of working-class people and are out of touch with the reality of the situation.”

We asked if Hendy felt the strikes enjoyed enough public support for the government to have a hard time pushing back against them. He told us: “On the whole the public appear to support the strikes. Many people have been standing with them and expressing their support and solidarity. But the government has not introduced the Bill in order to gain public support. The objective is to satisfy the right-wing of the party. The Conservatives believe that they are likely to lose the next set of local and general elections, so they are not as worried about gaining support from the public at large.”

We asked him why, despite government opposition, he still considers strikes an effective tool for improving pay and conditions at work. “If negotiation and collective bargaining does not work, the workers have little alternative but to strike: they have either to put up with the situation or leave their jobs. The fundamental problem is that workers have less power at the workplace than their employers. The only way of doing anything to redress that imbalance is to negotiate collectively. And in order to bargain collectively, it is necessary to have the right to strike and, when as a last resort, to exercise it. The ability to collectively withdraw their labour is the only real lever in collective bargaining that workers have.”

The Strikes (Minimum Service Levels) Bill

The Strikes (Minimum Service Levels) Bill is currently going through Parliament, introduced in this Parliamentary session as a response to strikes of public sector workers such as transport staff and nurses. If the Bill is passed and implemented as intended, employers receiving notice of strike action would be able to serve a ‘work notice’ requiring staff to work to meet ‘minimum service levels’ set by the government.

Non-compliant staff would lose their automatic protection from unfair dismissal whilst taking part in protected industrial action. This is particularly critical for those without 2 years’ continuous employment, who have no legal protection against unfair dismissal if their dismissal is not ‘automatically’ unfair.

Trade unions who do not take ‘reasonable steps’ to ensure that their members comply with the work notice would render the strike unlawful. That would mean that injunctions and damages claims could be made against the union and all strikers would then lose the limited protection that strikers have against unfair dismissal.

We asked Hendy his thoughts on the Bill. “The Bill is fundamentally flawed both in form and content. As to its form, it grants Henry VIII powers to the relevant Minister to repeal or amend Acts of Parliament and to set unilaterally the minimum service level in each sector without the scrutiny of Parliament. As to content, the Bill violates the right to strike. I suspect the Bill will be severely criticised by the House of Lords, and there will be countless amendments that the government would need to address. Neither workers or employers want this legislation.”

“This Bill is a continuation of the anti-union legislation introduced by Margaret Thatcher in the 1980s, which severely limited the right of strike. Tony Blair said in 1997 that the UK ‘had the most restrictive laws on trade unions in the Western World’. That was true but has been made worse since then by the Trade Union Act 2016. The cumulative effect of this legislation has meant that the UK framework severely limits the right to strike.”

The effect of the Bill as drafted is that even staff not requisitioned to work by a work notice would have their dismissal protection removed if they continued to strike where the trade union failed to take reasonable steps to ensure its members complied with a work notice.

It is up to the Secretary of State to set the minimum service levels applicable to health, transport, fire and rescue, education, nuclear and border security services. It is up to the employer to decide the numbers of staff to meet those minimum service levels. Hendy has commented elsewhere that this gives the Secretary of State the discretion to set high minimum service levels that could render relevant strikes ineffective.

In breach of international law?

The Parliamentary Joint Committee on Human Rights has raised numerous potential breaches of international human rights and workers’ rights law in the new legislation.

The European Convention on Human Rights, brought into UK law through the Human Rights Act 1998, protects the right to strike as an aspect of the right of free association. Any interferences with this must meet a “pressing social need” and be a proportionate means of achieving that aim. The Committee identify the following as potential breaches:

The categories of services targeted by the Bill, including “transport services” are “extremely broad and ill-defined”.
The Bill discriminates against workers of certain service sectors – justifications for the government’s sectoral choices may not be sufficient.
It is not clear that the current law is inadequate to deal with any relevant “pressing social needs” – it is already an offence to take industrial action in the knowledge or belief that human life will be endangered, or serious bodily injury caused, as a consequence.
The International Labour Organisation has stated that “any disagreement on minimum services should be resolved…by a joint or independent body which has the confidence of the parties”. The report queries whether the government setting minimum service levels meets this requirement.
The consequences for unions and individuals failing to comply with a work notice are “potentially very serious” and so may be disproportionate to the government’s aims.
Even staff not named in a work notice are vulnerable to losing their dismissal protection if they are a member of a striking union.

Hendy told us: “The new Bill is clearly in breach of International Labour Organization (ILO) standards on the right to strike. The ILO permits countries to impose minimum service requirements, but only subject to certain stringent conditions which are omitted in the Bill.”

The Retained EU Law (Revocation and Reform) Bill

Another law which threatens workers’ rights is the Retained EU Law (Revocation and Reform) Bill, which would undermine existing protections which originated in EU Law but which have been incorporated into UK legislation.

As Ewing and Hendy summarise elsewhere:

“The Retained EU Law (Revocation and Reform) Bill will wipe out an entire body of law on the ground only that it has its origins in the EU pre-Brexit. It will not apply to all EU law, but mainly to regulations that were introduced under the European Communities Act 1972.

This will include working time protections, the right to holiday pay, the protection of agency workers, and measures relating to fixed term and part-time workers.

These rights will automatically come to an end at the end of December, though the government has the power under the Bill to save some these rights from extinction. Part of the controversy about the Bill is that the government has failed to indicate whether, and if so to what extent, this power will be used. The right to paid holidays in the future now depends on Grant Shapps.”

Strengthening the right to strike

We asked Hendy how strikes could be strengthened by new legislation in future. “Despite these Bills, there is some hope for the future. The Labour Party has put forward proposals to improve the right to strike so as to make it conform to international law. It is essential that they are held to these commitments. Hopefully a change in government will make the necessary changes to the law.”

“The key reform is to free up the right to strike and extend the scope of collective bargaining. This requires many changes to the law, such as simplifying the onerous requirements in relation to strike ballots and allowing workplace and electronic voting. These changes would help to rebalance the unequal balance of power at work.”

And what can readers do? “I would implore anyone reading to stand with the strikes, go out and support them, and lobby against this Bill to stop it going through.”