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Henry VIII Powers Won’t Resolve the UK’s Strikes


It’s hard to keep track of which essential services are striking on any given day in Britain. Do you need to avoid an accident that might require an ambulance today or just forget about riding the train? The arrival of Christmas cards in mid-January suggests the Royal Mail is finally catching up after its Christmas strikes. But there is much more disruption to come. 

Around 100,000 civil servants are due to strike on Feb. 1. Students will also get pandemic deja vu for most of February when university staff go on strike and classes are canceled. On Monday evening, the National Education Union, England’s largest teaching union, also voted to strike from next month, adding to strains on primary and secondary school pupils. Most people need to consult color-coded strike calendars and liveblogs to have any hope of keeping up. 

Given the chaos, it makes sense that Prime Minister Rishi Sunak’s first big legislative move of the year is pushing through legislation mandating minimum service requirements during strikes. 

Other European countries have minimum service laws, so the UK would hardly be an outlier. Every life that is lost waiting for an ambulance helps make the government’s case, not to mention the enormous cost of disruption to businesses and taxpayers who pay for public services. The idea was in the Tory manifesto and the government is confident its majority will hold, making it an attractive way of showing some rare party unity.

Unfortunately, while the idea of a minimum services guarantee is perfectly reasonable, its text is confusing, open-ended and flawed. The whole exercise looks political, rather than a serious attempt to rectify a lacuna in the law books.

The bill, introduced by Transport Secretary Grant Shapps, amends the 1992 Trade Union and Labour Relations Act. It requires minimum service levels to be maintained for “relevant services,” which include health, fire and rescue, education, transport, the decommissioning of nuclear installations and management of radioactive waste, and border security. While French transport workers can strike with 48 hours notice, the UK bill requires 14 days. 

One sign of a rush job is that the bill provides little indication of how it would be applied. In the (likely) event that employers and unions can’t reach a minimum service agreement, the details are left up to the Business Secretary to determine and there’s no indication of how that calculation will be made. Will service levels be defined based on a shortened work day or some other formula?

Germany’s unions and employers collectively decide on minimum service levels; if they can’t agree, a court steps in. The UK law instructs employers in striking companies to provide a “work notice” to unions that specifies what service levels apply and can even name individual workers who must continue to provide services. An employee who’s tagged in a work notice is not protected from dismissal if they strike. And unions would be legally obligated to take active steps to stop those workers from striking. 

That has given new fodder to unions and provided an open goal for the Labour Party, which has dubbed it the “sack the nurses” bill. “Rishi Sunak has gone from clapping nurses to sacking them,” is the opposition’s line, pressed in Monday’s heated Commons debate by Shadow cabinet minister Angela Rayner. They also argue that if the government’s real concern is saving lives, the law is unnecessary since health service already ensure minimum provision. 

The bill also includes a clause that allows the secretary of state to amend or revoke future legislation in this parliament without a new parliamentary vote, sometimes called Henry VIII powers. Having certain freedoms make sense when governments need to make minute technical adjustments to ensure laws work efficiently. But the Tories have a habit of larding bills with such blank checks — not a good look for the party that is meant to be skeptical of government overreach. 

This is a battle the government thinks it can ultimately win by staying out of the direct negotiations in the hopes that unions will burn through their cash and public goodwill. A broader teachers’ strike will put that resolve under serious pressure. And while Brits are divided on who they blame for the strikes, when it comes to nurses and ambulance drivers, polls show the majority of people expect the government to act.

Sunak’s other hope is that strikes will become a wedge issue. Sunak has made frequent references to Keir Starmer’s “union paymasters,” implying Labour can’t be trusted on the issue. But Labour can point to the  money flooding into its coffers that doesn’t come from unions. And it can also press the argument that the problem isn’t striking workers but public services that have been poorly funded through 13 years of Tory government. 

If he’s to close the polling gap with Labour, the prime minister needs both a short-term resolution to the strikes and a broader plan for the economic growth that will help resolve some of the dire workforce shortages and pay issues. The danger for Sunak is that the government will get its strikes bill and win the immediate battle with the unions, but lose the broader war for public confidence.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Therese Raphael is a columnist for Bloomberg Opinion covering health care and British politics. Previously, she was editorial page editor of the Wall Street Journal Europe.

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