Strikes Bill on minimum service levels becomes law

The Strikes (Minimum Service Levels) Act 2023 gives the Business Secretary new powers to introduce regulations specifying minimum service levels in respect of a list of public services, including health, fire and rescue, education and transport. This is subject to a statutory duty to consult stakeholders. The new law has been introduced in response to entrenched pay disputes across the UK public sector and railway network – although the need for specific regulations means that it is far from being an instant solution.

We explained the detail of the proposals in our previous article, New Bill to mandate minimum service levels during public service strikes. Although it was then unclear whether the Act would make it through Parliament, the government has succeeded in getting the new law passed despite significant amendments being proposed by the House of Lords a number of times.

This was helped by a government promise to introduce a statutory code of practice to clarify what the obligations of trade unions will be under the Act, in particular on the "reasonable steps" that a trade union must take to ensure that workers comply with a work notice. The government announcement that the Strikes Bill had become law confirmed that there will be public consultation on this code of practice over the summer (although it has not as yet been published). We previously noted that the Bill gave no guidance on what would constitute “reasonable steps”, so this could provide some useful clarity for unions and employers alike.

This represents a major change to UK trade union law. Although the practical impact will depend on the content of future regulations, the Act will allow the government to curtail trades unions’ power to cause mass disruption to public services through lawful industrial action. It is worth noting, however, that the Act does not restrict unions from calling for industrial action short of strike, such as the overtime bans which are still materially impacting services across the railway network.

The Act came into force on 20 July 2023, but the consultation process and drafting of complex new regulations is likely to take some time (although consultations in certain sectors began as long ago as February, such as in the railway sector). It is therefore possible that the Act will only have limited practical effects before the next general election.

In addition, Labour confirmed during debates on the Bill that they would repeal the law if they were in government. It is also important to note that the Act applies to England, Wales and Scotland only (so further widening the gap between strike laws in Great Britain and in Northern Ireland).

The Act is also likely to be challenged. The TUC has already said that they intend to fight the new law using all options, including legal routes, and there is scope for challenges on human rights grounds on the basis of the Act’s potential incompatibility with Article 11 of the European Convention on Human Rights (the right to freedom of association). As is shown by the recent government defeat in relation to the use of agency workers during strikes, the fact the Act has now been passed may not be the end of the story.