Crossing the Rubicon: The Strikes (Minimum Service Levels) Act 2023 as an Authoritarian Crucible

Abstract

In the 1980s and 1990s, Conservative Governments contemplated but ultimately refused direct interventions in strikes in essential services as unenforceable and ineffective. The Strikes (Minimum Service Levels) Act 2023 crosses this Rubicon. It does so not by a participatory framework but by granting Ministers and employers virtually unrestrained powers to restrict (and effectively prohibit by neutralising the impact of) industrial action by imposing minimum service levels. This article offers a critical account of the Act based on three main claims. First, it argues that the Act is shaped by what is termed ‘coercive dual unilateralism’, an authoritarian crucible of three elements: (i) executive unilateralism, (ii) employer unilateralism and (iii) coercion (severe sanctions compounded by chilling legal uncertainty of ill-defined duties). Secondly, it challenges the Government’s claim of the Act’s compliance with ILO standards and Article 11 ECHR as a misconstruction. Thirdly, it finds that the Act satisfies all three authoritarian markers (stifling of dissent, direct state coercion, elevation of social order as an external justification for restrictions) identified in Bogg’s seminal account of the TUA 2016 as a shift away from neo-liberalism to authoritarianism. But it resists a ‘beyond neo-liberalism’ conclusion. Instead, it argues that the Act should be seen as the product of a ‘strong-weak' state (strong in power, weak in securing consent) that seeks to fortify neo-liberalism against a sharpened contestation reflected in the current strike wave.

1. INTRODUCTION

In the 1980s and 1990s, Lord Wedderburn issued two prescient notes of caution. He traced in the contemplated Government restrictions on strikes in essential services ‘the seeds of a dangerously illiberal, even authoritarian, thread in the skein of the market-orientated restriction policy’.¹ And in a direct comment on minimum service strike laws in other European countries, he identified the risk of their abuse as a ‘technique to render the lawful exercise of the right to strike more difficult, if not impossible’.² This future has now arrived. The Strikes (Minimum Services Levels) Act 2023³ crosses the statutory Rubicon.⁴ It does so by granting Ministers and employers for the first time virtually unrestrained power to restrict (and effectively prohibit by neutralising the impact of) industrial action in certain services by minimum service levels (MSL). The Act seems yet another legislative episode in the never-ending ‘death by a thousand cuts’ of UK trade unions’ ability to take effective lawful industrial action. Familiarity with the restrictive pattern should not lead, however, to desensitisation to its ground-breaking implications. The Act is a major escalation in the long ‘axis of advance’ of the restriction method,⁵ a radical manifestation of Wedderburn’s authoritarian thread.

The Bill has already attracted short critical commentaries from a variety of perspectives, including authoritarianism, human rights and international law.⁶ Following a discussion of the Act’s background (Section 2), this article seeks to contribute to the existing and forthcoming labour law literature a novel systematic critical account of the Act based on three main claims.

First, it argues that the Act is shaped by what is termed ‘coercive dual unilateralism’, an authoritarian crucible of three elements: (i) executive unilateralism, (ii) employer unilateralism and (iii) coercion (Section 3). The term dual unilateralism captures the empowerment of Governments and employers as focal institutional poles in MSL governance to the profound exclusion of unions, employees and the Parliament. In essence, the Act injects an ‘executivist political technology’⁷ into the traditional post-1979 strike restriction method. The provision of severe sanctions for non-compliance (dismissal and damages), compounded by the chilling legal uncertainty of unspecified duties, renders this dual unilateralism highly coercive. Secondly, the article challenges the Government’s claim of the Act's compliance with ILO standards and Article 11 ECHR as a misconstruction of those limits (Section 4). Thirdly, it applies the three authoritarian markers identified in Bogg’s seminal account of the TUA 2016 as a shift away from neo-liberalism to authoritarianism⁸ (Section 5). While finding that the Act satisfies all markers, it departs from Bogg’s account in the following ways. It traces areas of innovation of the Act when compared to the TUA 2016 (including the intensification of the use of legal uncertainty as a coercive tool and contestation of the Government’s construction of social order and public interest) as well as identifying more explicitly the constitutional significance of the markers. It also resists a ‘beyond neo-liberalism’ thesis (Section 6). Far from a move beyond neo-liberalism, the Act is argued to be the product of a ‘strong-weak’ state (strong in power, weak in securing consent) seeking to fortify neo-liberalism against a sharpened contestation reflected in the current strike wave. The final section concludes (Section 7).

2. BACKGROUND OF THE ACT

A. Origins of the Act: Thatcher’s Unfinished Business and the Dreaded Rubicon

The overall shift in the 1980s and 1990s from collective to restrictive laissez faire,⁹ reflected in numerous statutory restrictions on industrial action, left one part of the edifice intact: strikes in essential services, which as noted by Wedderburn (in 1983) was ‘an area in which the British liberty to take industrial action had a head start and in practice remains more liberal than most’ continental European countries.¹⁰ This part of the ruined edifice is now attacked by the Act.

It would be erroneous to attribute the Act’s origins to mere short-term opportunistic calculations of a Government intent on legislating away (rather than negotiating) a politically inconvenient wave of industrial action. Or to treat it simply as gesture legislation by which the Government intends to fill a ‘media grid by appearing to be doing something’.¹¹ Instead, the Act is the product of a longer gestation period. The question of how to restrict industrial action in essential services has exercised Conservative politicians for decades and in a sense was Thatcher’s unfinished business. While Conservative Governments in the 1980s and 1990s actively considered proposals for statutory interventions in this area (featured regularly in election manifestos),¹² they ultimately resisted crossing the statutory Rubicon.

This reluctance was more motivated by perceived feasibility than by principle. Four principal reasons could be identified. First, it was thought that in ‘practice it is extremely difficult to formulate proposals that would be effective and enforceable’.¹³ Even for Thatcherites, whose signature move was the confident use of law to restrain industrial action, intervention in this area appeared too risky a proposition. The fear was that a statutory intervention would be unable to defy the gravitational impact of collective laissez faire (CLF) (as demonstrated by the ill-fated IRA 1971) and may prompt a ‘repeat of the winter of discontent’.¹⁴ The normative voluntarist weight of CLF is also discernible in the second reason. Conservative Governments operated on the assumption that any statutory interventions would inevitably require a ‘quid pro quo’, in the form of arbitration, index-linked wages or some other method of compensating those denied recourse to industrial action.¹⁵ And they had no interest in doing the ‘quo’. Thirdly, Davies and Freedland attribute this aversion of Conservative Governments to direct legislative intervention to the undesirable (for them) risk that it ‘would visibly involve them in deciding whether to take executive steps to control each situation of industrial action in essential service industries’.¹⁶ Fourthly, the Conservative Governments clearly hoped that a similar restrictive effect could be achieved by indirect means through what Wedderburn described as ‘enterprise confinement’.¹⁷ Indeed, privatisation, contracting out and the creation of smaller bargaining units in conjunction with ballots¹⁸ (and ‘extremely complex’ and technical notice and information requirements)¹⁹ and the prohibition of solidarity action made it harder to organise effective strikes in public services.²⁰

In the early 1990s, proposals generally entered a dormant stage.²¹ But in 1996 the Conservative Government published a Green Paper²² aimed at ‘containing damage to the public’²³ caused by public sector strikes. While choosing to avoid defining essential services,²⁴ it proposed in language evidently intended to address public sector strikes the prohibition (loss of immunity) of strikes with ‘disproportionate or excessive’ effect.²⁵ This proposal found its way into the 1997 Manifesto²⁶ but no opportunity for immediate implementation arose due to the Conservative Party’s loss of power in 1997.

However, at the next earliest opportunity of a majority Conservative Government a new generation of Conservative politicians moved swiftly towards crossing the statutory Rubicon dreaded by their predecessors. With the TUA 2016 making the small yet critical step of defining ‘important public services’,²⁷ the Conservative Manifesto in 2019 for the first time pledged minimum services during strikes in the transport sector.²⁸ On 20 October 2022, Liz Truss’s Government introduced (in its last days) the Transport Strikes (Minimum Service Levels) Bill,²⁹ which took a step forward in presenting to Parliament a concrete minimum service statutory proposal. It crucially, however, retained the voluntarist element in the form of privileging minimum service agreements between employers and unions and, in case of a failure to agree, providing for a CAC determination.

B. Parliamentary Process: Rapid Pace and House of Lords Brakes

Introduced to Parliament less than three months later (10 January 2023), the Strikes (Minimum Service Levels) Bill dispensed with the voluntarist element or CAC determination of MSL. In contrast to Thatcher’s reluctance to assign the executive a visible role in restricting industrial action, the Bill designated a privileged status for the Government in MSL determination. It also broadened the scope beyond transport. The Government justified this extension by highlighting the Act’s responsive nature to a ‘flare-up of strikes that are putting people’s lives and livelihoods at risk’.³⁰ The ‘flare-up’ refers to the UK experiencing in 2022 the largest wave of strikes (2.4 million days lost) since 1989 (4.1 million days lost)³¹ across the public and private sectors (including rail workers, nurses, doctors, ambulance drivers and teachers).

The Government moved the Bill through House of Commons (HC) at an alarmingly rapid pace. There were no prior consultations with the social partners, let alone commissions or reviews. Two facts perfectly illustrate the Bill’s speed. First, the Bill was presented to the HC without an impact assessment (released on the second reading day in the House of Lords (HL)).³² Secondly, the Government launched in parallel with ongoing legislative deliberations various consultations on regulations in different sectors in an apparent attempt to ensure their implementation as soon as possible after the Bill’s enactment.³³

This process reflects a degradation of key elements of the UK’s (largely) political constitution, including rigorous parliamentary deliberation and effective and careful scrutiny of proposed laws. Speed becomes even more problematic when considering the fundamental rights implications of the Act, or in the Government’s own admission of its effect on changing ‘a key aspect of the industrial action regime’.³⁴ Besides seeking to evade Parliamentary scrutiny, speed is obviously linked to the Government’s intention to benefit from the use of the Act (or from the threat of its use) in the context of the ongoing strike wave. It is notable that the Government (through its HC majority) rejected Lords amendment 2D³⁵ that would have subjected the Ministerial discretion to issue regulations to a more meaningful framework of parliamentary oversight and consultation³⁶ on the grounds that it would lead to an ‘unnecessary delay’³⁷ in the implementation of MSL.

The Act encountered two major hurdles in its legislative passage. First, and most importantly, the HL has played a critical role as an institutional countervailing power. In terms of process, it applied brakes to the legislative pace by subjecting the Bill to extensive scrutiny, delaying its passage by proposing a raft of critical amendments that seek to neutralise its core implications and ultimately engaging in three rounds of ping-pong (twice suggesting amendments). Only one amendment was accepted by the government, which extended the prohibited selection criteria for work notices.³⁸ Besides amendment 2D, other significant rejected amendments concerned the removal of drastic sanctions for unions and workers and restricting the Act’s application to England (excluding Scotland and Wales).³⁹ Secondly, the Joint Committee on Human Rights performed an accountability function producing a report challenging the Government’s claim of the Act’s compatibility with human rights and ILO standards.⁴⁰

C. Rationales and Purposive Ambivalence

The provision of an accessible, clear and well-supported evidence-based justification for legislative intervention is an elementary condition for a well-functioning constitutional democracy and effective Parliamentary scrutiny. In this regard, the Act is deficient. Its text and explanatory notes are silent as to its purpose. It is unclear whether the Act aims at protecting ‘life and limb’ (safety) or more broadly at the disruption inherent in any industrial action. This silence becomes purposive ambivalence in the Government’s statements. While the Act is presented as seeking ‘to maintain a reasonable balance between the ability of workers to strike and the rights of the public, who work hard and expect the essential services that they pay for to be there when they need them’,⁴¹ the scope of this balancing exercise is ambivalent.

A ‘life and limb’ justification is offered by the Minister and Prime Minister (PM) by referring to the Act’s purpose as ensuring ‘minimum safety levels’⁴² or to the Act as ‘minimum safety legislation’.⁴³ However, other statements cast the net much wider. In the impact assessment, the Government formulates the Act’s aim as ‘guard[ing] against disproportionate risks to lives and livelihoods’.⁴⁴ The threat to industrial action is latent in the pernicious verbal slippage from ‘lives to livelihoods’, the latter construed widely. For example, the Government states that MSL are ‘designed to enable people to continue to attend their place of work, access education and healthcare, and go about their daily lives during strikes’.⁴⁵ Hence the legislative target is disruption. The language of negative externality⁴⁶ is crucial here. The Government claims to represent ‘the substantial number of users and economic agents [who] bear the impact of the strike’ but ‘are neither party to any dispute nor have any avenue to have their interests formally represented’.⁴⁷ It thus portrays itself as the exclusive agent for non-striking workers and businesses.

Besides invoking compliance with ILO standards,⁴⁸ the Government cites two other main rationales for legislative intervention. First, it relies heavily on the comparative argument⁴⁹ by presenting the Act as merely bringing UK law ‘into line (…) with many other modern European nations, such as Spain, Italy, France and Ireland’.⁵⁰ Bogg has provided a compelling critique of this reasoning by arguing that in making a ‘selective cherry picking of restrictive elements, superimposed onto an existing body of [UK] restrictive laws, [it] represents a misuse of the comparative method’ which also crucially ignores the more protective constitutional context in other countries’.⁵¹

Secondly, the Government rejects the adequacy of existing voluntary and statutory safeguards. Concerning the existence of the practice of voluntary agreements setting minimum services (such as ‘derogations’), a major theme in the previous Thatcherite reluctance to establish a statutory framework for strikes in essential services, the Government argues that they were proved ‘insufficient’ as mitigating factors because of their alleged inconsistency in recent strikes.⁵² Such a conclusion is supported, however, by anecdotal evidence without an appropriate, careful and balanced consideration of the function of the voluntarist system in this area. Indeed, voluntary minimum service safeguards (often included in union policies)⁵³ were in many cases established as part of a ‘self-restraint’⁵⁴ union approach. This approach gave unions critical leverage to condition the minimum service provision ‘on employers exercising reciprocal self-restraint and not seeking to undermine the unions’ campaign in ways which were considered unacceptable’.⁵⁵ Moreover, the Government does not consider s 240 TULRCA 1992 (which makes a criminal offence when someone strikes when ‘knowing or having reasonable cause to believe’ that the probable consequence would be to ‘endanger human life or serious bodily injury’ or to ‘expose valuable property, whether real or personal, to destruction or serious injury’)⁵⁶ as a ‘sufficient incentive’.⁵⁷

3. COERCIVE DUAL UNILATERALISM: THE ACT’S AUTHORITARIAN CRUCIBLE

MSL determination and application are complex, multi-faceted undertakings fraught with controversies and risks. Chief among them is their misuse as instruments for severely weakening industrial action through neutralising its effect. Due to this danger, their governance model is of neuralgic significance.

The chief defect of the Act is its failure to provide adequate safeguards against abuse. It is shaped by the design of ‘coercive dual unilateralism’, an authoritarian crucible of three elements: (i) executive unilateralism, (ii) employer unilateralism and (iii) coercion (drastic sanctions compounded by chilling legal uncertainty). Each is now considered in turn but their effect is cumulative and synergistic.

A. Executive Unilateralism: Accumulating Far-Reaching Powers with Weak Limits

Section 234B(1) TULRCA 1992 (inserted by the 2023 Act) is the statutory foundation of executive unilateralism, granting Ministers the far-reaching power to set MSL through regulations. The Act sets very weak limits on scope, procedure and substance.

First, it establishes a wide-ranging scope of application. It covers the following ‘categories of services’ formulated in the broadest possible terms: (i) health, (ii) fire and rescue, (iii) education, (iv) transport, (v) decommissioning of nuclear installations and management of radioactive waste and spent fuel and (vi) border security.⁵⁸ This list essentially matches the ‘important public services’ category first introduced by the TUA 2016 for the purpose of applying the most stringent ballot threshold requirements (minimum 40% support for the strike among eligible union members on top of the 50% turnout threshold).⁵⁹ But in one major aspect, it reaches even further. ‘Education services’ is broader than ‘education under the age of 17’ (TUA 2016), being now inclusive of higher and further education institutions. The Act’s expanded scope is notable because one might expect the scope of the legislation to be narrower if the legislation is more intrusive (setting direct rather than indirect constraints in the form of ballot thresholds). A potential paradox may arise with employees covered by work notices but not by the 40% ballot threshold under the TUA 2016. The term ‘categories of service’ is very broad. The Act makes no effort to refer to occupations or categories of employees (even non-exhaustively), or at least replicate the exclusion of employees who are not ‘normally engaged’ in these services as in the TUA 2016.⁶⁰

Turning to procedural limits, the Act displays a minimalist approach. This concerns both Parliamentary and industrial relations processes. Regarding the former, Regulations are subject to the ‘affirmative procedure’ that requires both Houses’ consent to take effect. The Government’s claim, though, that this process offers an ‘appropriate level of parliamentary scrutiny’⁶¹ to a law changing a ‘key aspect of the industrial action regime’⁶² is highly questionable. While more demanding than the negative procedure which does not require the approval of the regulation by both Houses (only provides for its annulment if either House passes a relevant motion) it still offers a rather inadequate form of scrutiny for at least three reasons: (i) Houses cannot propose and consider amendments, (ii) deliberations and scrutiny are very limited (typically in one session without a line-to-line examination) and (iii) it is extremely rare for either House to refuse consent.⁶³ The executive power is further strengthened by ‘supercharged’⁶⁴Henry VIII powers that allow the regulation to change any pre-existing primary law and any other laws in the same parliamentary session subject only to the affirmative procedure.⁶⁵

Industrial relations processes are conspicuous by their absence. The Act neither designates any process for bipartite or tripartite MSL determination nor provides for the involvement of a specialised independent body. It only prescribes the bare minimum, namely a Ministerial duty to ‘consult such persons’ as she ‘considers appropriate’⁶⁶ before making regulations. This duty is in any case prescribed by ordinary judicial review requirements.⁶⁷ Unions are considered undeserving of explicit mention. Rather than being treated as privileged entities, they are external to the Act’s governance model. This stands in sharp contrast to the Transport Strikes (Minimum Service Levels) Bill which provided for negotiated agreements and CAC involvement (if the parties disagree).

The Act’s minimal procedural constraints to executive unilateralism could heighten the vulnerability of regulations to a judicial review claim. This is even more the case given the recent High Court decision to quash the regulation repealing the prohibition on the use of agency workers as strike replacements for breach of the Ministerial duty to consult.⁶⁸ Among the reasons cited by the HC was that the regulation was ‘not informed by, or tested against, the views and the evidence of bodies which were representative of the interests concerned’.⁶⁹ The success of a potential challenge to regulations under the Strikes Act would ultimately depend on how the relevant consultations are conducted. But if the Minister merely follows the minimal statutory process, it is likely that she would have difficulty demonstrating compliance with the duty to consult.

Interestingly, the rejected HL amendment 2D would have made a significant contribution towards safe proofing the regulations in this regard by a more thorough pre-regulation framework of consultation and Parliamentary oversight.⁷⁰ It included a Ministerial duty to consult with the ILO on draft regulations and give ‘due consideration’ to such advice and with representatives of employers and trade unions (and any other interested party) on draft regulations and the matters to be addressed in the impact assessment. The Minister was required to produce a comprehensive impact assessment addressing the regulation’s effect on the services to which it relates.⁷¹ Then the amendment obliged her to lay a report to Parliament on the ILO advice (if provided) and the consultation. This report was to be placed alongside the impact assessment before a Joint Committee of both Houses, which was then to publish its own report. In rejecting this entirely procedural amendment, the Government clearly signals that it treats executive unilateralism as a fundamental and indispensable element of the Act.

Thirdly, the Act does not impose any substantive criteria, limitations or principles to govern executive discretion in MSL setting. The Act does not specify how these MSL should be set, making it a textbook example of a ‘skeletal Bill’. The latter is defined as an Act (or sections of an Act) whose ‘real operation (…) would be entirely by the regulations or orders made under it’⁷² thus close to a ‘license to legislate’.⁷³ Skeletal Bills have raised serious concerns about their threat to parliamentary supremacy⁷⁴ as ‘it is impossible to be sure what limit the legislature intended to impose’.⁷⁵ The Government conceded the Act’s skeletal nature but regarded the detail as ‘not appropriate for primary legislation’.⁷⁶ Nevertheless, this is more assumed than demonstrated. Two problems at least arise with this justification. In the first place, there is no systematic explanation for why the legislature is unable to deal with MSL complexity. Indeed, statutes routinely deal with complex issues and are often very detailed. Moreover, admitting that MSL are intricate does not appear to be in accordance with the governance choice of executive unilateralism. If they are too complex to set, why is a Minister in a better position to set them than Parliament and/or industrial relations actors?

Overall, the executive accumulation of broad far-reaching powers with very weak limits amounts to an almost unrestrained form of executive unilateralism. This is the first element of the authoritarian crucible.

B. Employer Unilateralism: Accumulating Far-Reaching Powers with Weak Limits

Employer unilateralism is the second element of the Act’s authoritarian crucible. To a large extent, it mirrors executive unilateralism. Following the issuance of regulations in specific services, the Act grants employers the unilateral power to give work notices to trade unions. Work notices should provide information about the persons and work required for securing MSL under the regulations.⁷⁷ These notices should be given during the period beginning on the day the standard union notice is given to the employer (under s 234A TULRCA 1992) and ending the 7th day before the earlier strike date (or at any later day agreed by the employer and union).⁷⁸ Should the employer wish to dismiss selected employees, an individual work notice shall be communicated directly to the person concerned (regardless of union membership) before the day required to work.⁷⁹ Therefore, employers constitute the second unilateral pole of dual unilateralism after the Government.

Work notices are the main instrument that lets dual unilateralism bear on workers and trade unions, the point of their contact with the authoritarian crucible. The Act places control of the work notice process in the employer hands, rather than in an independent third party or social partners. The disciplinary psychological effect of this choice on employees shall not be underestimated. It is quite different for an employee to be subject to a work notice issued by her employer than an independent, bipartite or tripartite body.

Employer unilateralism is subject to three weak procedural and substantive constraints. First, the employer is obliged to consult the union ‘about the number of persons to be identified and the work to be specified in the notice’⁸⁰ but need only ‘have regard to any views expressed by the union in response’.⁸¹ Even though unions are explicitly mentioned here (unlike executive unilateralism), they are granted a mere consultative role. Consequently, they experience double marginalisation, at both executive and employer levels. The Act even fails to specify that consultation should be held ‘with view to an agreement’. This could have provided some direction to these consultations and have possibly hinted a duty for the parties to strive to reach a negotiated agreement. Even for a willing Court, it would be difficult to construe such a duty by interpretation of the existing provision.

The second limitation concerns the number of workers subject to work notices given to unions. An employer ‘must not identify more persons than are reasonably necessary for the purpose of providing the levels of service under the minimum service regulations’.⁸² Several remarks could be made about this formulation. To begin with, Courts have described a similar ‘reasonably necessary’ formulation (in the context of steps a union should take to inform its members about a strike ballot result)⁸³ as an ‘awkward’ expression⁸⁴ because it juxtaposes reasonableness with necessity. It was stated that the reference to ‘“reasonableness” in the context of necessity’⁸⁵ seems to ‘diminish the strict ordinary meaning of “necessary,” and to allow for a measure of focus on practical realities’.⁸⁶ The duty was eventually construed as a ‘reasonable best’ duty⁸⁷ not necessarily violated if it is shown that the ‘union could have done more’.⁸⁸ Should the Courts adopt a similar construction for the Act, employers would enjoy considerable latitude in determining what is reasonable necessary. However, it is arguable that this test offers a slightly better opening (compared with the consultation duty) for willing Courts to potentially read a ‘duty to seek an agreement’ as part of a procedural construction of what is reasonably necessary. Whatever its interpretation, however, the duty will generate considerable uncertainty for all parties pending litigation (including as a potential key contentious point for injunctions) to flesh out its precise content.

The third limitation to employer unilateralism concerns the selection criteria for employees named in work notices. Given that the process is controlled by the employer empowered to name specific employees in work notices, there is obvious danger that the process can be misused for the purpose of targeting union activists (or those involved in strike activities) or as a tool for victimisation. What if an employer selects union activists? Or if it selects those leading previous strikes for reducing their effectiveness by moving them from the picket lines to work? The Bill’s initial version provided a thin limitation by merely prohibiting an employer from having regard to trade union membership.⁸⁹ Such a limitation would not cover selections motivated not by trade union membership but by union activities or strike action. Following the Government’s acceptance of an HL amendment, the provision was extended to prohibit work notice selections based also on whether a person has taken part (or not taken part) in union activities, has made (or did not make) use of union services or had (or did not have) a trade union of which he is a member raising issues on his behalf. Therefore, it aligns its content with s 146 TULRCA 1992 (detriment short of dismissal). This will cover as a matter of law practices of work notice selection based on union activism and victimisation cases. However, employers may in fact capitalise on the generously granted by the Act employer unilateralism for making those troubling selections regardless of the legal prohibition by counting on enforcement deficits.

Problems may also arise regarding selection based on (actual or intended) strike activities if we assume for the Strike Act a similar construction to section 146 TULRCA 1992. This is because the CA in Mercer has refused to consider participation in industrial action as a union activity at an ‘appropriate time’⁹⁰ for the purpose of applying section 146. This judgment is currently subject to appeal to the Supreme Court. It is thus likely that the decision may also have implications for the Act.

But does section 146 apply independently? Aside from the Mercer obstacle to the inclusion of strike activities, a question arises as to whether work notice selection amounts to a ‘detriment’. While a common law approach (undiluted by human rights) may struggle with this conclusion (how performing a contract is a ‘detriment’?) if Courts treat the detriment definition under the Equality Act as ‘highly persuasive’⁹¹ (as suggested by Adams et al.) they would not adopt a ‘wholly objective test’⁹² but instead focus on whether ‘a reasonable worker (although not all reasonable workers) might take the view that, in all the circumstances’ the requirement to work was to his detriment.⁹³ In such a case, it is difficult to resist the conclusion that a worker called to work despite his wish would ‘take the view’ that it is to his detriment. This conclusion becomes even stronger when one factors into the analysis that the worker will be deprived of her ability to exercise a human right (under Article 11 ECHR). But even in the case of successful navigation of the various section 146 hurdles, any sanctions are purely financial. They do not directly affect the operation of the provisions of the Strikes Act.

Overall, the employer accumulates far-reaching powers subject to very weak and ill-defined limits thus amounting to a case of almost unrestrained employer unilateralism.

However, a key point should be made here. In many instances, dual unilateralism could collapse into a single executive unilateralism with two faces. This is because in most of the covered service areas the Government is either a de jure employer or possesses various (formal and informal) channels of influence such as (but not limited to) funding or contractual provisions thus being in practice the ‘power behind the employer’.⁹⁴ School education, health, fire/rescue and nuclear decommissioning are obvious examples. But even in the mostly privatised train services, the Government exercises various forms of control. These include dispute-handling clauses contained in franchise agreements consolidated by ‘strong financial rewards and sanctions’ for the companies.⁹⁵ This control means that dual unilateralism could be single unilateralism in disguise, granting the Government two levers of intervention in strike disputes: MSL setting by regulations and through work notices by the employer.

C. The Coercive Element: Drastic Sanctions and Chilling Legal Uncertainty

Coercion is the third element of the Act’s authoritarian crucible that consolidates and strives to secure dual unilateralism. It consists of a comprehensive mix of drastic sanctions attached to non-compliance by workers and unions (dismissal and damages), compounded by chilling legal uncertainty generated by ill-defined duties. Unions and employees face a fundamental imbalance in governance rights/duties. Despite being deprived of meaningful participatory rights in MSL setting, they are assigned multiple duties backed by severe sanctions. These are imposed on three subjects: (i) employees subject to work notices, (ii) unions and (iii) non-selected employees taking part in a strike subject to work notices.

The first duty concerns the selected employees’ obligation to comply with work notices. The sanction for non-compliance is inscribed onto the unfair dismissal framework. A selected employee would lose automatic protection from unfair dismissal unless he did not take part in the industrial action or if he did only to the ‘extent’ complying with the notice.⁹⁶ The significance of this duty cannot be overstated. It functionally approximates a conscription duty (though formally not attached to criminal sanctions) and grants, as Ewing and Hendy rightly note,⁹⁷ an employer the power to request specific performance of the employment contract which is not even granted to the Courts.⁹⁸

However, this sanction is not considered sufficient. The Act also prescribes a union duty to take ‘reasonable steps’ to ensure compliance of selected employees with work notices.⁹⁹ This duty is at the heart of the Act’s authoritarian crucible for several reasons. First, it seeks to drive a wedge between the organic solidarity strike bonds derived from the antagonistic nature of industrial action as an expression of ‘fighting solidarity’¹⁰⁰ (‘with’ co-workers and ‘against’ employers)¹⁰¹ and legality. Tending to occur in adverse circumstances, the strike’s effectiveness depends on the shared goal of maximising its effect, including achieving the highest possible level of strike participation. The Act here establishes a legal duty in direct conflict with this aim. This collision is even more acute when considering the union’s exclusion from MSL setting. Consequently, the Act widens a gap between organic union solidarity and legality which in turn is the next step in an evolving statutory trajectory. This gap was also present in the legal requirement of union repudiation of unofficial industrial action to avoid liability at the risk of exposing participating employees to the risk of dismissal¹⁰² and the legal prohibition of a union expelling/disciplining a member¹⁰³ for not taking part in a union strike. However, the Act brings this trajectory to a new level. While the previous provisions could be argued to embody an ‘individualist’ ethos based on individuals freed by the State from group rules and loyalty in any conflict,¹⁰⁴ the Act here essentially designates unions as policemen of employees’ compliance with work notices. Unions are legally expected to act as coercive entities towards their members against their interests. The Act seeks to incorporate them into a hierarchy of coercion seeking to enforce MSL that restrict the effect of their own industrial action, and which were unilaterally established by the Government and employers (dual unilateralism). In the event that they refuse (or deemed to fail to) fulfil this role, they and their members risk severe sanctions hanging over them like swords of Damocles.

Secondly, the Act’s coercive nature is aggravated by the unspecified nature of this duty. The Act imports an ill-defined reasonableness-type standard into the heart of UK strike law, injecting hefty doses of legal uncertainty attached to drastic sanctions. This contrasts even with s 238A TULRCA 1992, which lists examples of reasonable procedural steps for unfair dismissal protection for strike participation beyond 12 weeks. The Strikes Act here renders the Courts as the third pole of dual unilateralism. To determine the precise duty content in a definitive way, we will most likely have to wait until litigation occurs. And it is unclear how the Courts would interpret ‘reasonableness’, a generally elusive concept in UK strike law. Will they consider the solidarity fighting bonds inherent in industrial action as part of reasonableness? Or will it become a formalistic exercise under common law? Ewing perfectly captures the broad spectrum of interpretative possibilities for ‘reasonable steps’.¹⁰⁵

At the (relatively) minimalist end, it could encompass a union duty to notify its selected members. A notable asymmetry arises here. On the one hand, the Act requires that work notices given to the union provide information about all selected employees, members and non-members alike. On the other hand, the reasonable steps union obligation concerns only compliance by members with work notices. To be sure, the latter makes sense. The duty would be even more problematic if unions were held responsible for non-member actions. But it still raises the question about how selected non-union employees shall be informed. The Act merely requires the employer to give a work notice to an individual employee (including non-union members) until the day before the earlier strike date¹⁰⁶ as an additional condition of the loss of automatic protection from unfair dismissal (on top of the work notice sent to the union).¹⁰⁷ Unless the union decides after receiving the work notice from the employer (by the 7th day before the earlier strike date or later if the parties agree) to notify selected non-member employees despite not being legally obliged to do so¹⁰⁸ (which would be even more practically challenging than informing members and would divert even more union time and resources away from the strike preparation itself), the Act essentially allows a selected non-member employee to learn of his requirement to work on a strike date with the least amount of notice possible, that is the previous day.¹⁰⁹

A more exacting interpretation of ‘reasonable steps’, as Ewing and Hendy note, could assume a union requirement to instruct selected employees to cross picket lines (and issue a list of names to the pickets that they should not be persuaded not to cross them), or in the strictest formulation to demand that the union disciplines or expels any selected member for non-compliance with work notices.¹¹⁰ In the last scenario, the disciplinary process of a voluntary association would in essence be transformed into a pure transmission belt of state coercion.

The severe problems with this duty are compounded by the attachment of powerful sanctions to non-compliance at both collective and individual levels. If the union is deemed not to comply with an unspecified by the statute duty, all employees participating in the industrial action are deprived of automatic unfair dismissal protection. A certain irony exists here. While the Government considers an employee’s ability to attend work as worthy of protection as ‘livelihood’¹¹¹ the Act treats the livelihood of strikers (in terms of job retention) as easily dispensable.

Besides these sanctions, the Act adds to the coercive mix the threat of severe damages for unions failing to take ‘reasonable steps’ which for large unions could amount to up to £1 million.¹¹² In practice, of course, employers are likely to mostly resort to injunctions seeking to prevent (or discontinue) the industrial action altogether.

It should be noted that employees deprived of automatic unfair dismissal protection would also not be able to bring an ordinary unfair dismissal claim unless proving that they had been selectively dismissed. And even in cases of selective dismissal, affected employees would be subject to the standard eligibility criterion of a minimum two-year qualifying period; and the Courts would have to apply the standard procedural and substantive fairness criteria that generally gravitate towards the employer.¹¹³

Given the specific construction of duties and sanctions, combined with heightened legal uncertainty, it is difficult to resist the conclusion that the Act is calculated to have a coercive chilling effect on strike participation. Employees would either behave risk-aversely by abstaining from industrial action or be exposed to severe sanctions. Unions would also face the daunting and almost impossible task of convincing not just employers but also striking employees (potentially worried about the risk of dismissal if the strike is deemed unprotected) that they have taken legally undefined ‘reasonable steps’.

Nonetheless, the Government views the Act’s coercive nature as an indispensable feature, as demonstrated in its statement that acceptance of an HL amendment eliminating these sanctions would leave employers ‘powerless to manage instances of non-compliance’.¹¹⁴

4. MISCONSTRUING THE LEGAL LIMITS: ILO STANDARDS AND ARTICLE 11 ECHR

A key move in the formation of the authoritarian crucible is the misconstruction by the Government of the limits imposed by ILO standards and Article 11 ECHR.¹¹⁵ The focus on these sources here is due to space considerations, their significance (including being utilised by other sources) and their chief status in the Government’s argumentation. Compliance issues, though, may arise regarding multiple other international law sources (such as ESC, ICESCR and trade agreements).¹¹⁶

A. ILO Standards: From Disregard to Misconstruction

The ILO standards on freedom of association impose international law obligations (as a core labour standard and through ratification by the UK of ILO Conventions 87 and 98) and have been cited in the ECtHR Article 11 jurisprudence.

The traditional attitude of Conservative Governments towards ILO standards has been one of disregard. Frequent criticisms of the UK’s strike law as non-compliant have been routinely ignored¹¹⁷ while in 2016 a Conservative Minister described ILO supervisory bodies (CFA and CEACR) as fulfilling a mere ‘informal advisory role’.¹¹⁸ The repeal of the general prohibition on the use of agency workers as strike replacements¹¹⁹ for which the Government failed to even note the ILO position that it is a ‘serious violation’ of freedom of association (outside of essential services in the strict sense of the term)¹²⁰ was only the most recent example¹²¹ before the Strikes Act.

Given this record, the Government’s invocation of ILO standards and the jurisprudence of its supervisory bodies as a justification for the Act is a novel development. In the House of Commons, the PM claimed that the ILO ‘supports minimum service levels’¹²² while the Minister argued that the ILO states that MSL ‘can be a proportionate way of balancing the right to strike with the need to protect the wider public’ before confidently stating that ‘our own unions subscribe to and support the ILO, as do we’.¹²³

To the extent that these statements imply the Act’s compliance with ILO standards, these claims do not stand up to scrutiny. The Act is a blatant violation and misconstruction of ILO standards. To begin with, the absence of consultation in the Act’s pre-legislative process does not align with ILO standards demanding ‘in-depth’ consultations with social partners for any measures related to the scope and exercise of trade union rights.¹²⁴

To be sure, the Act’s scope considered on its own (ie, without considering its cumulative effect discussed below) seemingly complies with ILO standards. Firefighting and rescue, health and nuclear decommissioning would broadly fall (unless subject to an impermissibly broad formulation by regulations) into the ‘essential public services in the strict sense of the term’ category for which minimum services are permitted. It is apparent that ‘their interruption would endanger the life, personal safety or health of the whole or part of the population’.¹²⁵ And even if the transport, rail and education sectors¹²⁶ cannot be deemed essential services in the strict sense (meaning that strikes in those sectors cannot be prohibited), ILO standards treat them as belonging to the ‘intermediate concept’¹²⁷ of ‘fundamental services of public importance’¹²⁸ where minimum services are also permitted. This inclusion was confirmed by a CEACR comment on the TUA 2016.¹²⁹

Nevertheless, it is the Act’s authoritarian design (coercive dual unilateralism) that manifestly deviates from ILO standards on multiple fronts. Pursuant to the recognition that minimum services restrict ‘one of the essential means of pressure available to workers to defend their economic and social interests’,¹³⁰ ILO standards condition their permissibility on specific procedural and substantive constraints.

First, dual unilateralism runs counter to the spirit and letter of ILO standards that privilege a consensual determination and application of minimum services by social partners and distrust government involvement in them. Indeed, the ILO assigns clear priority to a negotiated settlement between the parties¹³¹ by requiring that both sides ‘must be able to participate in determining the minimum services’.¹³² This priority was recently reiterated in the CEACR criticism of the Hungarian minimum service law (passed by Victor Orban’s Government) as failing to establish such participatory structures for unions.¹³³ The participatory safeguard is considered significant because it allows the parties to exchange views on the minimum services ‘that are strictly necessary’¹³⁴ and ‘contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact’.¹³⁵ Here the Government’s claim that the minimal consultation requirement before the regulations amounts to ‘participation’¹³⁶ is a clear misconstruction of ILO standards. It is a major stretch to treat ordinary consultation (with a union lacking a designated privileged role) as participation. Participation calls for more extensive and meaningful involvement than merely submitting a written statement as a non-privileged entity to a general consultation. In addition, ILO standards prohibit unilateral determination of MSL by the employer,¹³⁷ which is at odds with the Act’s employer unilateralism.

Thirdly, ILO bodies assign strong weight to MSL dispute resolution. They require that any disagreement should be resolved by an ‘independent body having the confidence of the parties concerned’¹³⁸ and by a ‘joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application’ of minimum services.¹³⁹ Here the Government may present judicial review as a means of satisfying this condition. Judicial review on its own, though, is hardly adequate. Despite its recent evolution towards increased executive control,¹⁴⁰ it cannot substitute the need for a detailed, fact-specific and sensitive to industrial relations body undertaking the complex assessment of MSL application (in the UK this could be the CAC which had a major role in the previous Transport Strikes Bill). Relatedly, the Act fails to designate any bespoke rapid and direct ways by which workers and unions can challenge work notices.

Fourthly, the ILO also establishes substantive safeguards. Minimum services should ‘not render the strike ineffective’¹⁴¹ or call it into question,¹⁴² and should be restricted ‘to the operations which are necessary to satisfy the basic needs of the population or the minimum requirements of the service’.¹⁴³ These substantive restrictions do not appear in the Act. Beyond ritualistic mentions of the importance of the ability¹⁴⁴ or right to strike,¹⁴⁵ the Act’s explanatory notes or impact assessment fail to provide a detailed and systematic appraisal of the Act’s impact on unions’ ability to undertake effective lawful industrial action.

Last, but certainly not least, ILO rules consider the cumulative effect of a restriction. Even if some domestic rules (for instance on scope) may appear compatible on their own with ILO standards they may be considered violations vis-a-vis their overall effect. ILO supervisory bodies have directly raised the cumulative charge against the UK industrial action law. In 1989, at a time when the UK strike law was far less restrictive, the CEACR noted the ‘complexity of the law’ by stating that there is a ‘point at which the cumulative effect of legislative changes which are in themselves consistent with the principles of freedom of association may nevertheless, by virtue of their complexity and extent, constitute an incursion upon the rights guaranteed’ by Convention 87.¹⁴⁶ More recently, the CEACR expressed in its comments on the TUA 2016 its concern that ‘the expiration of the ballot mandate, coupled with the extensive notice requirements and the current context of a postal ballot, were likely to hinder the capacity of workers’ organizations to exercise their activities free from interference’.¹⁴⁷ The Act would have this hindering effect as minimum services and the associated threat of dismissal, damages and injunctions would cumulatively interact with the numerous existing restrictions as to reduce even more the effectiveness of lawful industrial action or even prevent its occurrence altogether. Successive restrictive statutory layers are enacted without any of the previous ones removed. Moreover, the CEACR noted in 1989 that applicable restrictions ‘generate uncertainty’ which ‘may inhibit lawful industrial action’.¹⁴⁸ The same would hold true for the unclear and unspecified duties set forth in the Act. Interestingly, the Government acknowledges the arguments about the Act’s cumulative effect ‘against the backdrop of existing legislation’¹⁴⁹ but dismisses them on the grounds that restrictions are justified ‘in light of the serious and disproportionate impacts on the wider public’.¹⁵⁰ This point, however, misses the mark. Cumulative rules are about effect, not justification.

Overall, the Act is a blatant violation of ILO standards. The sincerity of the Government’s claim to the contrary and of its promise of continuing to uphold its ‘international obligations as the minimum service regulations are introduced’¹⁵¹ are also called into question by the Government’s refusal to accept an amendment requiring the Minister to consult on draft regulations with the ILO and give ‘due regard’ to any advice proffered.¹⁵² Despite its procedural nature, this condition would have at least ensured a timely authoritative scrutiny of regulations from the perspective of ILO standards.

B. The Act’s Compliance with Article 11 ECHR: Less Straightforward but Problematic on Multiple Fronts

ECHR is a major source of international law obligations for the UK but is also directly applicable to domestic law through HRA 1998. While the assessment of compliance with Article 11 ECHR is not as straightforward as with ILO standards, the Act is nonetheless problematic on multiple fronts.

Given the recognition of industrial action as a clearly ‘protected’ (but not ‘essential’) element of Article 11,¹⁵³ there is little doubt that the Act amounts to an Article 11 interference. Compliance turns entirely on Article 11(2) limits. This assessment involves three questions: (i) is the measure prescribed by law? (ii) does it pursue a legitimate aim (does it correspond to a pressing social need)? and (iii) is it ‘necessary in a democratic society’ (and what margin of appreciation should be afforded to the state in making this determination)?

Serious doubts arise regarding the Act’s compliance with the ‘prescribed by law’ condition. This is because the ECtHR has rejected a formalist approach (based only on the legal source) in favour of a comprehensive and substantive conception of legality, which crucially includes ‘quality of law’ considerations.¹⁵⁴ The law must be ‘adequately accessible’, ‘formulated with sufficient precision to enable the citizen to regulate his conduct’ and the individual must ‘foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail’.¹⁵⁵ For Acts granting executive discretion, the Court requires that their scope and manner of exercise should be ‘indicated with sufficient clarity’ in order ‘to give the individual adequate protection against arbitrary interference’.¹⁵⁶ On the basis of what was previously discussed, it is difficult to argue that an employee or a union could deduce with foreseeability and precision their obligations under the Strikes Act in order to regulate their conduct (eg, in relation to what counts as ‘reasonable steps’) and that they are adequately protected against arbitrary interference in the form of potential dismissal, damages and injunctions.

Assuming that the first criterion is met, the Government must identify a legitimate aim in the form of a ‘pressing social need’. The Government would most certainly argue that the Act aims to strike ‘the correct balance between the right to strike and the protection of the rights and freedoms of the wider general public’.¹⁵⁷ While this could be recognised as a legitimate aim, the Government’s construction of a pressing social need may attract higher scrutiny in light of the Government admission three months before the introduction of the Strikes Bill (in the context of the Transport Strikes Bill) that mitigating factors (both statutory and voluntary) rendered unnecessary any legislative intervention in strikes beyond the transport sector.¹⁵⁸

If a legitimate aim is found, the third question is whether the restriction is ‘necessary in a democratic society’. This is a complex, multi-factorial and fact-specific assessment whose outcome is difficult to predict with absolute certainty. We will confine ourselves to a few observations here.

The first major issue relates to whether the Government should be afforded as it claims a wide margin of appreciation in striking a ‘fair balance’ between competing interests¹⁵⁹ thereby lowering the justificatory hurdle. This would in turn depend on whether the Act is deemed to strike at the very ‘substance’¹⁶⁰ of a union’s freedom of association and thus being regarded as a ‘core’ and not an ‘accessory’ aspect of trade union freedom.¹⁶¹ As Bogg and Ewing rightly note, this distinction has been a ‘slippery one without any clearly fixed meaning’.¹⁶² In RMT, the ECtHR considered that the ‘nature and extent’ of the prohibition of secondary action (an important factor for the core/accessory determination)¹⁶³ was not ‘as invasive’ as the applicant union claimed¹⁶⁴ because the union ‘held a strike, albeit on a limited scale and with limited results’.¹⁶⁵ When applied to the Strikes Act, this reasoning could lead to two possible interpretations. A narrow formalistic construction would recognise a wide margin of appreciation to the UK because MSL fall short of an outright ban on industrial action. This is because they do not (formally) prohibit strikes in their entirety and the union could still (formally) hold a strike albeit with limited results. However, this would ignore the severe functional impact of MSL on unions and workers and their highly invasive nature in terms of risking rendering their ability to defend their interests through strikes grossly inconsequential. Moreover, from an individual perspective, a minimum service notice prevents a particular employee from exercising her right to strike.

Three other factors could undermine the Government’s case for the Act’s compliance with proportionality. First, the overall degradation of the legislative process (late publication of impact assessment after the Bill’s introduction to the HoC, purposive silence and ambivalence, legislative speed) could collide with the Court’s more assertive stance in assessing the quality of parliamentary debates as part of the procedural turn of proportionality.¹⁶⁶ In Ognevenko v Russia, parliamentary deficits had major weight in ruling that a blanket prohibition on the right to strike in the railway sector was incompatible with Article 11.¹⁶⁷

The second factor relates to the Act’s coercive nature. The ECtHR has made frequent references to the ‘chilling effect’ of a restriction as a factor of proportionality¹⁶⁸ with some academics claiming that it has a free-standing effect.¹⁶⁹ For example, in Ognevenko it explicitly referred to the chilling effect of sanctions by highlighting that the threat of dismissal is the ‘most severe penalty’ with a potential ‘chilling effect’¹⁷⁰ on the exercise of the right to strike. For the reasons described above, the coercive element of the Act’s authoritarian crucible (drastic sanctions and legal uncertainty) clearly has such an effect.

Thirdly, the Court tends to assign weight to ILO jurisprudence, although the pattern is far from unilinear or consistent. In Demir and Baykara, the Court relied extensively on ILO sources by dismissing the Convention provisions ‘as the sole framework of reference for the interpretation of the [Convention] rights and freedoms’.¹⁷¹ Similarly, the Court in Ognevenko drew heavily on the ILO jurisprudence that excludes transport/railways from essential services in the strict sense by finding no reason to ‘reject the existing international approach to the definition of an essential service and to consider the railway transport as such’.¹⁷² However, in RMT the Court dismissed an automatic alignment of Article 11 permissible limitations with the ILO jurisprudence by its supervisory bodies.¹⁷³ If the ECtHR decides in a challenge to the Act to align Article 11(2) with ILO jurisprudence the conclusion of a violation is straightforward. But this is only on the condition that the Court would treat the ILO’s permissive stance towards MSL and the conditions/safeguards attached as indivisible. There is an obvious danger here. In Ognevenko the Court highlighted the lack of information as to whether minimum services were considered as an alternative to a ban on railway strikes and noted that the ‘ILO advises the States to require minimum services to be provided during a strike by its participants instead of banning strikes’.¹⁷⁴ It will be profoundly inconsistent with ILO standards if the Court decides to ignore the conditional nature of the ILO’s acceptance of minimum services.

5. THE ACT AS AN AUTHORITARIAN CRUCIBLE: APPLYING BOGG’S MARKERS

This section assesses the Act’s authoritarian nature against Bogg’s three authoritarian markers (stifling dissent; direct state coercion; external justification based on social order).¹⁷⁵ While the Act is argued to satisfy all markers, the analysis locates areas of innovation compared with the TUA 2016 as well as identifying their constitutional significance in a more explicit manner.

A. Stifling Industrial and Political Dissent: An Authoritarian Constitutional Marker

The first marker is stifling (industrial and political) dissent.¹⁷⁶ For Bogg, the TUA 2016 was ‘part of a wider political strategy to suppress political opposition and dissent in the political process and wider civil society’.¹⁷⁷ Strikes are evidently vulnerable to authoritarian regulation because of their operation as a major political, economic and societal ‘infrastructure of dissent’.¹⁷⁸

The Act, both in effect and design, reflects and consolidates this movement. Shaped by the authoritarian crucible of coercive dual unilateralism, Governments and employers accumulate powers to significantly weaken (if not neutralise) the disruptive effect of industrial action. This is explicitly acknowledged by the Government which invokes the Act as a response to a ‘flare-up of strikes’.¹⁷⁹ Most of these strikes are political impact strikes¹⁸⁰ challenging government policies directly or indirectly (including privatisation, austerity, and real wage cuts). Consequently, their restriction would also curb an expression of dissent whose political and industrial elements are in fact tightly intertwined to the point of inseparability. This effect aligns with a broader coercive neo-liberal tendency towards making protest ‘increasingly juridified and hyper-regulated’¹⁸¹ and treating it as an ‘aberration and in need of repression’.¹⁸² Besides the Strikes Act, this tendency is manifested in two recent legislative interventions restricting the right to protest by means of increased criminalisation and enhanced police powers (the Police, Crime, Sentencing and Courts Act 2022 and Public Order Act 2023).

This authoritarian marker i of constitutional nature, a point discussed but not fully explored in Bogg’s TUA 2016 account (due to its predominant focus on Conservative thought evolution).¹⁸³ The Strikes Act could be regarded as attacking what could be termed strikes’ ‘shadow constitutionalist’ (that is to say, limiting executive and legislative power) function. While of key significance to any constitution, the question of executive/legislative limits gains additional urgency to the UK constitution whose ‘keystone’¹⁸⁴ or ‘core legal principle’¹⁸⁵ is Parliamentary supremacy. This is because the latter renders the UK constitution highly susceptible to an authoritarian form of government¹⁸⁶ by way of a Government enjoying a parliamentary majority behaving like an ‘elective dictatorship’ by using constitutional flexibility to break through limits.¹⁸⁷ This danger has been averted because of the vital growth of a ‘pluralist’ informal¹⁸⁸ system of checks on government,¹⁸⁹ to which Governments crucially have considered to be limited by,¹⁹⁰ that helped ‘defer[ring] indefinitely an authoritarian alternative’.¹⁹¹

In this system, strikes are deprived of positive constitutional visibility as evident in the absence of a positive statutory right to strike in the UK. They are recognised only in the negative form of prohibition of political/general strikes due to their perceived threat to parliamentary sovereignty and democracy.¹⁹² However, this is an illusion. Strikes cannot be politically sanitised and placed on the procrustean political/industrial divide. As Wedderburn rightly noted, these lines of division are a ‘reflection of policy, not of philosophical categories’.¹⁹³

The Act primarily targets this shadow constitutionalist function of strikes. Indeed, many strikes (mostly in the public sector) serve as shadow mechanisms of executive accountability.¹⁹⁴ They do so by exerting pressure on the Government to publicly justify its policies challenged (directly/indirectly) by the strikers as a means of legitimating its opposition to these strikes. In playing a ‘deliberative’¹⁹⁵ constitutional function, they complement (or even compensate for the deficits of) the ordinary processes of representative democracy. Thus conceived, the Strikes Act attack gains constitutional significance. In his seminal account, Bogdanor drew attention to the striking contrast between the ‘empowered consumer and the passive citizen’¹⁹⁶ in the UK’s constitution, where people are expected ‘to be passive and deferential’.¹⁹⁷ For him, this power deficit prevents Britain’s constitutional state from becoming ‘a popular constitutional state’.¹⁹⁸ Along similar lines, a recent Labour Party report highlighted that the over-centralised way of governing leaves people ‘complaining they are neglected, ignored, and invisible’.¹⁹⁹ The Act illustrates this deficit. While mobilising the figure of the non-striking ‘empowered consumer’ (in terms of a putative exclusive interest in transactional normality)²⁰⁰ for imposing restrictions on strikers, it immunises (if not exacerbates) this power deficit. It does so by attempting to eliminate (or neutralise) a source of popular participation and executive limits in accordance with the constitutional construction of citizens as passive and deferential. This move is missed only if one adopts a narrow view of electoral participation as sufficient democratic participation.

Thus, the Act marks a regressive constitutional moment as it renders the UK constitution less sensitive to conflict and dissent.

B. Direct State Coercion: Blending Executive Unilateralism with Civil Sanctions

The second of Bogg’s markers focuses on means, namely a ‘marked preference for direct State coercion’.²⁰¹ This refers to the use of direct enforcement ‘through the techniques of the criminal law or direct governmental interference in trade union autonomy’ over the indirect deployment ‘in the enforcement of private rights’.²⁰²

From the perspective of coercion, the Act exhibits continuities with the TUA 2016 but also innovates. Most significantly, it blends an executivist style of governmental interference in trade union autonomy (as expressed in industrial action) with civil (rather than criminal) sanctions. Here Bogg’s tendency to associate authoritarian coercion mostly with criminal sanctions²⁰³ may be too narrow since it would risk under-valuing the authoritarian effect of the coercive combination of executive unilateralism, heightened legal uncertainty and drastic civil sanctions (damages and dismissal).

The Act’s coercive nature shall be seen as the cumulative effect of three processes: (i) enabling executive (and employer) power; (ii) evasion of various limits; (iii) sanctions.

First, the Act enables direct coercion by a significant redrawing of the institutional power-map. Its balance sheet is pristine: the Government and employers are the net winners; trade unions, employees and Parliament are the net losers. Compared with TUA 2016, it substitutes the Government and employer for the Certification Officer as focal coercive institutional poles.

The second process, which is constitutional in nature, involves the evasion of limits to the first’s enabling effect. To begin with, the Act drives coaches and horses through fundamental defences of the UK’s (largely political) constitution. Constitutional norms for effective and rigorous parliamentary debate, clear and appropriate justification and effective scrutiny are ignored or at least complied with to the bare minimum. Very importantly, and in a clear departure from previous restrictive strike laws, the Act mobilises the practice of skeletal Bills in the crudest form, far removed from any emergency pretence, towards centralising more power to the executive with weak and ill-defined limits.

In addition, executive power centralisation also evades the devolution constitutional limits, a ‘key element’²⁰⁴ of the UK’s new constitutional settlement. There are concerns over the Act’s (applicable to both Scotland and Wales) compliance with the (the political but not legally binding)²⁰⁵ ‘Sewell Convention’,²⁰⁶ which requires the consent of Welsh and Scottish Parliaments for any Westminster legislation on devolved matters. While the UK Government argues that the ‘main purpose and substance’ of the Act concerns non-devolved areas (employment rights/duties and industrial relations) with any ‘operational effect’ on devolved areas (such as healthcare, education, fire services, transport and environment) ‘incidental’,²⁰⁷ the Welsh and Scottish Governments maintain that it has a ‘potential to impact’²⁰⁸ or ‘directly affect’²⁰⁹ devolved areas. Regardless of the legal formalities, it is notable that the Government did not have any ‘effective engagement’ with devolved administrations in advance of the legislation²¹⁰ despite its obvious impact on devolved public services delivered by the Scottish and Welsh Governments for which they are accountable.

A third type of evaded limits concerns those imposed by collective laissez faire (CLF), the model that privileged autonomous regulation of employment relations with relatively limited legal intervention.²¹¹ Kahn-Freund traced CLF basis to ‘the rapidly developing pluralistic character of the British Constitution’²¹² while Lord Wedderburn noted that its usage gains in a country with no written constitution a ‘meta-constitutional flavour’.²¹³ Reflecting (but also consolidating) a power balance, strikes underpinned as material guarantees the relative ‘self-limitation’ of the state²¹⁴ in collective relations expressed in CLF. The post-1979 shift away from a social democratic constitution²¹⁵ in the form of de-collectivisation²¹⁶ and reduction of trade union power²¹⁷ involved a multi-frontal assault on CLF. In this trajectory, the Act could be seen as dealing some of the final blows by eroding the ultimate vestiges of CLF, in the surviving self-regulation practice of MSL set up through voluntary agreements. Two ultimate CLF fortresses are invaded. The Government (rather than the law) assumes a direct role in restricting industrial action, in stark contrast to CLF’s voluntarist collectivist philosophy. Furthermore, contrary to CLF’s aversion to juridification and judicial involvement,²¹⁸ the Act juridifies industrial action by establishing vague and undefined reasonableness-like standards for which ordinary courts will be the key arbiters of their meaning. However, CLF’s death knells are equally political and industrial. They signal the rapidly depleting systems of informal checks and balances on executive power. Finally, as previously discussed, the Act evades through misconstruction the legal limits imposed by ILO standards and the ECHR. It also ultimately overcomes the HL resistance. Despite its unelected nature and being ‘immune from mainstream public scrutiny’,²¹⁹ the HL acted as an important defence against the Government’s authoritarianism by slowing down the legislative pace, subjecting the Bill to further debate and scrutiny and having one proposed amendment accepted.

The third process concerns sanctions. Their coercive nature was discussed in detail in Section 3C. What should be only noted here are two Act’s innovations compared with the TUA 2016. The first is the mobilisation of intensified legal uncertainty as a key coercive tool. The second is the direct legal construction of unions (rather than the Certification Officer) as entities obliged to coerce their members towards abstaining from industrial action in compliance with work notices produced by executive and employer unilateralism. While the sanctions are civil and privatised,²²⁰ they form an integral part of an authoritarian complex with executive and employer unilateralism.

C. Social Order as an External Justification: Contested Construction

The third of Bogg’s authoritarian markers relates to the use of the ‘external’ justification of social order for strike restrictions over the ‘internal’ one focussed on union democracy²²¹ based on ‘the underlying axiom that industrial conflict is a pathological disruption of the civic unity that should obtain in a political order’.²²² The Strikes Act is entirely motivated by external concerns.

The Government invokes a typical friend/enemy distinction:²²³ non-striking workers are ‘hard-working’ and their interest in the uninterrupted provision of public services merits Government intervention on their behalf;²²⁴ striking workers contesting real pay cuts in the context of (and against) Government policies (such as under-funding of public services or staff shortages due to austerity) are implicitly construed as enemies threatening social order. While the Government issued statements recognising the importance of the ability to strike,²²⁵ systematic elaborations on strikes’ usefulness are conspicuous by their absence in the impact assessment as previously noted.²²⁶ Strikes appear as meaningless rituals in accordance with a Minister’s statement that ‘it’s a myth’ that they are helpful for workers.²²⁷

The Government distinction between hard-working (non-striking) workers and disruptive (striking) workers shares the non-civic construction of consumption identified by Bogg under the TUA 2016.²²⁸ It assumes a consumer identity exclusively oriented towards transactional predictability as normality.

Here the vulnerability of Kahn-Freund's thesis of the strike (in a tertiarized economy) as an ‘internecine civil war’ between workers as producers and consumers²²⁹ and of employer as ‘the instrument of the public’²³⁰ is apparent. To be sure, Kahn-Freund swiftly qualified this thesis as a ground for union self-restraint rather than legal intervention considered to be ineffective.²³¹ However, the Government in introducing the Act could be seen as merely dispensing with Kahn-Freund’s qualification on the grounds of expedience whilst sharing his conclusions regarding employers as guardians of the public interest and strikes as a civil war between worker-producers and worker-consumers. What Kahn-Freund seems to have missed was the presence of a third mask besides those of a consumer and a worker:²³² that of citizen or an active constitutional participant. Striking workers act as both citizens and workers when, for example, using strikes to voice their opposition to poor working conditions caused by (or at least connected with) Government policies or linking their specific pay levels to an overall perception of an unfair distribution of wealth and resources. And they may attract solidarity from other citizens (who happen not to be on strike) on these grounds. ‘Civic solidarity’²³³ could transcend producer/consumer or friend/enemy divides. Reflecting on solidarity, a striking junior doctor notes that what ‘unites us all in this is the impact austerity has had over the last decade, evident in the driving down of wages, our defunded hospitals, schools, and public services, the ever-expanding wealth of the few, and the entrenched inequality across our society’.²³⁴

Bogg’s discussion on social order can also be enriched by also focussing on contestation. Many strikers do not reject the importance of order and acting in the public interest. They instead challenge their specific construction by the Government. To begin with, they dispute that the employer (which in many instances is the State) represents the public interest by framing their demands regarding their working conditions as constitutive of (rather than in tension with) the public interest. For example, a striking teacher associates strikes with the public interest in quality education by noting that without them ‘we will watch generation after generation [of students] be failed by the system’.²³⁵ The construction of unions as bearers of the general interest and the Government as partial is eloquently put by a Guardian editorial, noting that junior doctors strike ‘also on behalf of the public, who are entitled to be treated by people who are not physically and mentally exhausted, nor financially straitened’.²³⁶

Similarly, the question of what constitutes order/disorder is contested. There are two main versions in contention. For the Government, order is in essence a state of affairs undisturbed by workers’ agency or critique. This is evident in the stated aim of legislation as enabling workers to ‘go about their daily lives during strikes’.²³⁷ Various pathologies (such as long-waiting NHS lists, staff shortages, austerity, under-funding of education and other public services) do not register as disorder or at least they are bracketed as an issue external to the Act. But this is contested by the strikers. Rather than strikes disrupting the ‘normal order’, they present them as an ordered way to challenge and disrupt the ‘normal disorder’.

The following exchange between Conservative MP Greg Smith (GS) and RMT General Secretary Mike Lynch (ML) illustrates this contestation:

• GS: You must agree that by making the railway uncertain in its operation in the eyes of the consumer—the people who pay a lot of money.

• ML: Are you talking about when we are on strike or when we are not on strike?

• GS: When you are on strike.

• ML:What about the days when we are not on strike, when it is absolutely useless as well?

• GS: That is a whole other evidence session.

• ML: No, it is not. Since the timetable change that came in a couple of years ago the whole thing has been a disaster.

• GS: Mr Lynch, you must accept that people are being driven away from the railway because—

• ML: and I think it is your Government’s fault.²³⁸

And it is notable that the Government rejected a legislative intervention on minimum safe staffing levels in the NHS on non-strike days.²³⁹ This leads to the paradox of a MSL being considered feasible during strikes, but not on non-strike days. This implies in turn a divergent assumption concerning the scope (and potency) of statutory intervention. The law is only considered strong enough to establish normality against workers’ agency but not against other structural ‘normal’ deficits (such as staff shortages or under-funding of public services). These deficits are naturalised as part of a complex background that is not easily amenable to statutory intervention. Hence, to use Bauman’s expression, they are construed as belonging to the ‘outer space’ of democratic politics.²⁴⁰

But given the sectors involved, it is difficult for the government to run a friend/enemy construction past the public. The Covid-19 legacy exerts a major influence here. As a striking ambulance worker put it: ‘they clapped for us, they said we were heroes. Fast-forward to now, and we’re seen as militants’.²⁴¹ The Government attempts to exploit the Covid-19 key worker category to justify the scope of the Act as involving ‘key workers’ who are ‘truly the lifeblood’ of the country.²⁴² Key workers face dual exclusion. While their key status is not considered as meriting an inflation-matching rise, it is used for restricting their ability to fight toward this aim.²⁴³ This is on top of the increased virus exposure risk experienced during the pandemic. But the twist from heroes²⁴⁴ during Covid to enemies (as strikers) is a challenging undertaking for the Government. This difficulty could at least partially explain the strong public support for strikes by key workers.²⁴⁵

6. FORTIFYING NEO-LIBERALISM: REVISITING THE ‘BEYOND NEO-LIBERALISM’ THESIS

Since the Act satisfies all of Bogg’s authoritarian markers, it would be tempting to also share his conclusion of a movement ‘beyond neo-liberalism’.²⁴⁶ However, an application of Bogg’s thesis beyond the confines of Conservative political thought evolution shall be resisted. This is because it risks making the Act’s authoritarianism appear to operate in a social and economic vacuum, occluding or disregarding the underlying dynamics and shifts of a sharply contested neo-liberal political economy.

Bogg invokes two principal reasons for his thesis that the TUA 2016 marks a shift away from neo-liberalism to authoritarianism. First, because ‘[i]f the Employment Act 1982, the Employment Relations Act 1999 and the TUA 2016 could all be described as “neo-liberal,” the meaning of “neo-liberal” being deployed probably risks collapsing the term into banality’.²⁴⁷ While Bogg correctly identifies a danger of desensitisation by the frequent use of the term neo-liberalism, if a neo-liberal evaluation is appropriate it cannot be rejected solely based on the possibility of sharing common ground with earlier statutes. Secondly, and very importantly, Bogg views the TUA 2016 as moving beyond neo-liberalism because it reflects a governmental practice and thought that is ‘not a liberal doctrine at all’.²⁴⁸ Neo-liberalism is here presented as averse to public coercion mainly because of Hayek’s scepticism.

While compelling and intellectually coherent, this account has three possible limitations. First, the claim that we have moved beyond neo-liberalism because the underlying doctrine is not liberal carries a risk. It may fail to register the critical tensions and contradictions between different conceptions of liberty (and coercion) in, as Bogg himself has identified, the ‘sheer variety of political positions within the liberal family’.²⁴⁹ For example, Bogg usefully distinguishes between neo-liberals, for whom ‘economic liberties and market institutions play a critical role in the realisation of individual freedom’²⁵⁰ and ‘egalitarian liberals’ for whom ‘economic liberties play an important but subordinate role in the realisation of autonomy’.²⁵¹ At this juncture, a fundamental tension in liberalism may emerge between the overriding need to protect individual economic (or transactional) liberty (which the Government argues to protect by restricting industrial action) justifying coercion as a last resort and the need to ensure the ability to undertake effective industrial action as an important form of civil and political liberty in the pursuit of egalitarian outcomes. Indeed, the collision between the view of industrial action as restricting consumption (and hence threatening other economic users’ liberties) and as an important form of agency occurs at the sharp edge of this tension. These tensions are under severe risk of being theorised away by a single (though normatively attractive) view of (neo)liberal liberty as opposed to coercion,²⁵² perhaps aimed at sanitising liberalism from any internal tendencies towards (or traces of) authoritarianism.

Secondly and relatedly, Bogg’s account risks ignoring the complex and intimate links between authoritarianism and (neo) liberalism. With Heller’s early account of ‘authoritarian liberalism’ capturing the combination of authoritarianism and liberalism in Weimar Germany²⁵³ and Wilkinson more recently viewing it as involving the use of political authoritarianism in ‘defence and pursuit of economically liberal ends’,²⁵⁴ academic literature has well-documented the authoritarian dimension of neo-liberalism. Giroux highlights how neo-liberalism ‘wages an incessant attack on democracy, public goods, and noncommodified values’²⁵⁵ while Brown concludes that ‘throttling democracy was fundamental, not incidental to the broader neoliberal program’.²⁵⁶ Neo-liberalism’s authoritarian dimension has been identified in Thatcherite policies characterised by ‘both violence, and legal foreclosure of protest’,²⁵⁷ with the suppression of the miner’s strike presenting an ‘iconic example’ of this authoritarian state strategy.²⁵⁸ Far from construing authoritarianism and neo-liberalism as mutually exclusive by drawing on the perception of authoritarianism as ‘liberalism’s other’,²⁵⁹ these accounts highlight their often symbiotic and synergistic relationship.

Here a third potential limitation of Bogg’s account arises. It concerns the adoption of a predominant ‘ideational based’ conception of neo-liberalism,²⁶⁰ largely in accordance with Wedderburn’s work.²⁶¹ While granting internal coherence by attaching the ‘beyond neo-liberalism’ thesis to Hayek’s writings, this conception raises two problems. To begin with, Wedderburn himself hinted at (though not systematically articulating) the rejection of this binary in his description of 1980–93 laws as ‘authoritarian’ in their aim to ‘end effective trade union influence in the labour market’²⁶² and in his diagnosis of the seeds of a ‘dangerously illiberal, even authoritarian, thread’ in the strike restriction method.²⁶³ And more importantly, Bogg’s account does not systematically consider neo-liberalisation as a material process with variegated, diverse and often contradictory manifestations.²⁶⁴ But this is not to say that Bogg’s account operates entirely in the realm of ideas. He explicitly talks about Conservative Government ‘practice’²⁶⁵ and ‘statecraft’²⁶⁶ and considers their actual political context. But these are still subordinate to the ideational construction of neo-liberalism dominated by Hayek’s writings. Yet if one understands neo-liberalism not as only a set of ideas but also as a practice or as a class strategy to revive capitalist profitability and hegemony,²⁶⁷ then the Act’s authoritarianism becomes intelligible as a predictable state response in the face of resistance to its hegemony.

Drawing on a richer and more complex understanding of neo-liberalism, an alternative account would retain the finding of increased authoritarianism but refuse to severe the ties to neo-liberalism. For this task, the concept of ‘authoritarian neo-liberalism’ is useful.²⁶⁸ It captures as part of neo-liberalism’s transition from liberal democracy to ‘unstable modalities’ such as authoritarianism²⁶⁹ the increased state reliance upon ‘coercive state practices that discipline, marginalize and criminalize oppositional social forces’²⁷⁰ and ‘the judicial and administrative state apparatuses which limit the avenues in which neoliberal politics can be challenged’.²⁷¹ This provides a more adequate frame for making sense of the Strikes Act’s authoritarianism. As earlier discussed, the legislation seeks to discipline and marginalise opposition forces and fortify neo-liberalism by reconfiguring the administrative apparatus (executive unilateralism) to limit the avenues of challenge to neo-liberal politics through strikes.

The Act’s linkage of authoritarianism with neo-liberalism is manifest at two main levels. The first relates to the Act’s origins. The Act cannot be adequately grasped outside its responsive nature to the sharpened contestation resisting (post-2008) neo-liberalism by the recent strike wave. Since 2008, neo-liberalism as a model of capital accumulation has entered a sustained period of crisis, thus approximating a ‘zombie neo-liberal model’, which is ‘intellectual dead but dominant’.²⁷² One could even view the post-2008 period as an organic crisis,²⁷³ defined by Gramsci as a period of exceptional duration where ‘incurable structural contradictions have revealed themselves’ that cannot be resolved by the hegemonic political forces ‘struggling to conserve and defend the existing structure’.²⁷⁴ This crisis has manifested itself in different forms, but most notably as ‘weak economic growth’,²⁷⁵ ‘deteriorating public services, accelerated in part by a policy of austerity’²⁷⁶ and ‘declining trust in politics’.²⁷⁷

With proximity to a pandemic that exposed the contrast between the key function of essential workers in society (thus challenging the neo-liberal credo of businesses as ‘wealth-creators’) and the frequent lack of decent working conditions and fair pay, the recent cost-of-living crisis acted as a release flashpoint of accumulated discontent. For workers facing another reduction in their living standards, the concrete demand for pay restoration reflected an overall regressive perception that since 2008 ‘we are destined to drift from one “disaster” to the next, from emergency to emergency, from slump to slump, from crisis to crisis’.²⁷⁸ The cost-of-living crisis, which is the context of the pay disputes,²⁷⁹ served as a reminder of the broken promise of ‘labour receiving renewed recognition’.²⁸⁰ In this context, pay demands were projections point of grievances against a chronic failure of neo-liberalism to deliver on its promises. This is visible in union strike demands, which tend to place calls for pay restoration in the broader post-2008 real pay reductions. For example, the BMA calculated that junior doctors had a real pay cut of 26.1% since 2008.²⁸¹ The issue of recognition is pivotal, illustrated by the following quote from a junior doctor.

Are we worth over a quarter less than we were back then [2008]? Is our work protecting the public during the pandemic, subjecting ourselves and our loved ones to a highly contagious and unknown virus with inadequate protective equipment, worth nothing more than empty claps and falling pay?²⁸²

Strikes thus have a disclosure function in defining the ‘dire reality facing the country and what a hopeful future would look like’²⁸³ but also highlighting 'contextual unmentionables', such as ‘extractive private bosses, an ideological legacy of deregulation and defunding’.²⁸⁴ Hence the current strike wave contestation operates within the context of (and against) a dysfunctional neo-liberalism.

This leads us to the second level where authoritarianism-neoliberalism links are evident. The Act is a response to this sharpened contestation, in effect granting executive powers to ‘fortify neo-liberalism’ by attempting to preserve and immunise the dominant neo-liberal power and material distribution from critical forms of contestation. It is part of an effort to legally and coercively enforce the call for workers (as put by a prominent Bank of England economist) to ‘accept they are poorer and stop seeking pay increases’.²⁸⁵ The Act also attempts to challenge any ‘collective’ imaginary of progress²⁸⁶ by presenting strike agency as futile. Here a neo-liberal contradiction also appears. While neo-liberalism was built upon the premise that some companies (such as train and bus operators) do not differ from other companies and hence they could be privatised, their essential function is now invoked as the basis for strike restrictions.

A deeper interrogation would reveal the Act as a product of (to use Poulantzas’ term) a simultaneous ‘strengthening-weakening of the state’²⁸⁷ or a ‘strong-weak’ state’. On the one hand, the Government tightens its grip on industrial action by accumulating unprecedented powers at odds with its previous attitude of avoiding systematic direct interventions in strikes in essential services. In this process, ordinary democratic processes and constitutional guarantees are liquidated. This liquidation aligns with an overall ‘disintegration of neoliberal democracy under the weight of its own internal contradictions’²⁸⁸ prompting evacuated politics²⁸⁹ or post-democracy where elections exist but ‘the mass of citizens plays a passive, quiescent, even apathetic part, responding only to the signals given them’.²⁹⁰

At the same time, though, the Act is also the product of a weak state in terms of securing consent through a shift to coercion.²⁹¹ In contrast to 1980s/1990s trade union legislation riding an ascending neo-liberal wave promising Britain’s salvation, this Act derives from a state failing to generate legitimacy for neo-liberalism. It is arguable that the Act would not have been enacted (at least now) if various other indirect limits (including minimum turnout ballot thresholds) succeeded in containing industrial action. But the scale of wave, mobilisation and contestation was sufficient to overcome the various legislative hurdles (as exemplified in the case of the Royal College of Nursing staging in 2022 the first nationwide strike in its 106-year history). Due to the Government’s inability or unwillingness to negotiate or secure consent, let alone to alter the neo-liberal model of regressive income and wealth distribution, the Government resorts to authoritarianism for defending neo-liberalism by moving the statutory goalposts. This is in accordance with Poulantzas’ prediction that while authoritarian statism ‘clearly strengthens state power at the expense of liberal representative democracy, it also weakens its capacities to secure bourgeois hegemony’.²⁹²

So, the ‘beyond neo-liberalism’ thesis needs revisiting. Far from a step beyond neo-liberalism, the Act is an attempt by a ‘strong-weak’ state to fortify a failing and crisis-prone neo-liberalism by centralising executive power against strikes as a critical form of contestation and dissent.

7. CONCLUSION

The statutory Rubicon is crossed. The comparatively distinct absence of an integrated statutory framework of strikes in essential services in the UK²⁹³ is gone. This Rubicon is crossed not by a participatory framework of setting MSL but by an authoritarian crucible oriented towards suppressing critical conflict and opposition. Hence the Act marks a radical manifestation of Wedderburn’s authoritarian thread. It weaves together two threads traditionally considered separately, namely the neo-liberal marginalisation of trade unions seeking to relegate them to ‘friendly societies’²⁹⁴ (under a strengthened managerial prerogative) and the escalating power of the executive vis à vis the Parliament.²⁹⁵

The article advanced three main arguments/findings. First, it demonstrated that the Act is shaped by ‘coercive disciplinary unilateralism’, an authoritarian crucible of executive unilateralism, employer unilateralism and chilling sanctions accompanied by hefty doses of legal uncertainty. Secondly, it challenged the Government’s claim of the Act’s compliance with ILO standards and Article 11 ECHR as a misconstruction of those limits. Thirdly, while itfound that the Act satisfies Bogg’s authoritarian markers (but it also provided a more explicit discussion of their constitutional significance and highlighted areas of innovation of the Act when compared to the TUA 2016), it called for revisiting the ‘beyond neo-liberalism’ thesis. The Act shall be seen instead as the product of a ‘strong-weak’ state seeking to fortify neo-liberalism against a sharpened contestation of (post-2008) neo-liberalism.

The Act does not only claim uncharted territory for UK strike law. It operates on the broader authoritarian horizon, shaped by a government seeking to immunise itself from opposition as to fortify neo-liberalism. In injecting an ‘executivist political technology’²⁹⁶ into the traditional strike restriction method, it risks piercing the very democratic constitutional fabric itself. To be sure, Britain is still very far from having a fully fledged authoritarian constitution and being a fully fledged authoritarian state. But the Act brings Hailsham’s spectre of ‘elective dictatorship’²⁹⁷ somewhat closer.

The fate of the Act is a major litmus test not just for labour law but also constitutional democracy and human rights. As discovered several times after the 1980s, the drift of the restriction policy²⁹⁸ knows tactical and temporary rather than principled and insuperable constraints. Further restrictions may await bordering even more closely to effective prohibition of industrial action. To paraphrase Sinzheimer, it is apparent that the never-ending restrictive strike trajectory has in fact become a problem not just of UK labour law but of an entire democratic constitutional order²⁹⁹ shackled by a failing neo-liberalism. Is dawn after the darkest hour or will we keep plumbing new depths of the authoritarian abyss of neo-liberalism?

Footnotes

*

I am truly grateful to Alan Bogg, Simon Deakin, Keith Ewing, Tonia Novitz and Elena Radevich-Katsaroumpa for their invaluable insights, comments and suggestions on earlier drafts. My gratitude also goes to the UK Labour Law Blog for hosting an earlier blog where some of the ideas for this article originated.

1

Lord Wedderburn, ‘The New Politics of Labour Law: Immunities or Positive Rights’ in Lord Wedderburn (ed), Employment Rights and Britain and Europe (London: Lawrence and Wishart, 1991) 80. Originally published as an essay in 1985, based on a 1983 lecture.

2

Lord Wedderburn ‘Labour Law and the Individual: Convergence or Diversity?’ in Lord Wedderburn (ed), Labour Law and Freedom (London: Lawrence and Wishart, 1995) 313. Based on a 1993 lecture.

3

2023 c. 39 https://www.legislation.gov.uk/ukpga/2023/39/enacted. In force from 20 July 2023.

4

Previous relevant direct restrictions were limited to the prohibition of industrial action for the police, army and prison officers.

5

Wedderburn ‘Labour Law and the Individual’ (n.2) 291.

6

See among others ‘Ewan McGaughey, The Government’s Anti-strike Bill Violates International Law’, LSE Blog, 16 January 2023 https://blogs.lse.ac.uk/politicsandpolicy/the-governments-anti-strike-bill-violates-international-law/; Ruth Dukes, ‘Blink and You’ll Miss It: The Strikes (Minimum Service Levels) Bill Progresses Quickly through the Commons’, University of Glascow School of Law Blog, 17 January 2023 https://www.uofgschooloflaw.com/blog/2023/1/17/blink-and-youll-miss-it-the-strikes-minimum-service-levels-bill-progresses-quickly-through-the-commons; Tonia Novitz, ‘Minimum Service Levels Legislation: In Conflict with Strikers and with Europe’, UK in a Changing Europe, 23 January 2023 https://ukandeu.ac.uk/minimum-service-levels-legislation-in-conflict-with-strikers-and-with-europe/ and Keith Ewing, ‘The Strikes (Minimum Service Levels) Bill is Authoritarian, Illiberal and Illegal’, IER, 17 February 2023 https://www.ier.org.uk/comments/the-strikes-minimum-service-levels-bill-is-authoritarian-illiberal-and-illegal/.

7

For the term see Günter Frankenberg, ‘Authoritarian constitutionalism: coming to terms with modernity’s nightmares’ in Helena Alviar García and Günter Frankenberg (eds), Authoritarian Constitutionalism (Cheltenham: Edward Elgar, 2019) 13.

8

Alan Bogg, ‘Beyond Neo-Liberalism: The Trade Union Act 2016 and the Authoritarian State’ (2016) 45(3) ILJ 299.

9

Lord Wedderburn, The Worker and the Law, 3rd edn (Harmondsworth: Penguin Books, 1986) 95.

10

Lord Wedderburn, ‘The Right to Strike: Is There a European Standard?’ in Employment Rights and Britain (n.1) 316.

11

Lord Alan HL Deb, vol 827, col 1566 (21 February 2023).

12

References to strikes in essential services featured in the Manifestos in 1979, 1983, 1992 and 1997.

13

Mr Clarke HC Deb, vol 111, cols. 157–158 (24 February 1987).

14

Simon Auerbach, Legislating for Conflict (Oxford: OUP, 1990) 105.

15

Zoe Adams et al, Deakin and Morris’ Labour Law, 7th edn (Oxford: Hart, 2021) 1052.

16

Paul Davies and Mark Freedland, Labour Legislation and Public Policy (Oxford: OUP, 1993) 519.

17

Lord Wedderburn, ‘Freedom of Association and Philosophies of Labour Law’ (1989) 18(1)ILJ 1, 27–30.

18

For example, the 1983 Conservative Party Manifesto stated that the ‘proposal to curb immunity in the absence of pre-strike ballots will reduce the risk of strikes in essential services’.

19

Adams et al (n.15) 1005.

20

Adams et al (ibid.) 1052; see also Gillian Morris, ‘The Regulation of Industrial Action in Essential Services’ (1983) 12 ILJ 69, 83.

21

See Auerbach (n.14) 235.

22

DTI, Green Paper Industrial Action and Trade Union Cm 3470 (1996).

23

Mr Ian Lang HC Dec, vol 285, col 843 (19 November 1996).

24

Ibid.

25

DTI (n.22) 7.

26

Available at http://www.conservativemanifesto.com/1997/1997-conservative-manifesto.shtml.

27

Bogg, ‘Beyond Neo-Liberalism’ (n.8).

28

Conservative Party Manifesto, Get Brexit Done (2019) 27.

29

For the Bill’s text see https://publications.parliament.uk/pa/bills/cbill/58-03/0168/220168.pdf.

30

Grant Shapps HC Deb, vol 726, col 64 (16 January 2023).

31

Richard Partington, ‘Number of days lost to strikes is highest since the Thatcher era’, Guardian, 14 February 2023 https://www.theguardian.com/uk-news/2023/feb/14/nearly-million-days-lost-strikes-december-uk-pay-growth.

32

Strikes (Minimum Service Levels) Bill Impact Assessment (21 February 2023) https://bills.parliament.uk/publications/49906/documents/2979. The Government submitted an impact assessment to the Regulatory Policy Committee for review on 2nd February 2023 (several weeks after the Bill’s introduction to the HoC and after being sent to the HL for the first time).

33

Consultations were launched for ambulance services (9 February 2023), fire and rescue (9 February 2023) and passenger rail (20 February 2023).

34

UK Government, Delegated Powers Memorandum (10 January 2023) [19] https://bills.parliament.uk/publications/49722/documents/2897.

35

For the text of amendment 2D see https://www.publicwhip.org.uk/division.php?date=2023-07-04&house=lords&number=1.

36

See Section 3A below for a more detailed discussion of the amendment.

37

Kevin Hollinrake HC Deb, vol 736, col 713 (17 July 2023).

38

See Section 3B below for a more detailed discussion of the amendment.

39

See Patrick Brione, Strikes (Minimum Service Levels) Bill: Lords stages and amendments (HC Briefing, 18 May 2023).

40

JCHR, Legislative Scrutiny: Strikes (Minimum Service Levels) Bill 2022–2023 (Tenth Report of Session 2022–23).

41

Grant Shapps HC Deb, vol 726, col 54 (16 January 2023). Emphasis added.

42

Grant Shapps HC Deb, vol 725, col 433 (10 January 2023).

43

Rishi Sunak HC Deb, vol 725, col 553 (11 January 2023).

44

Impact Assessment (n.32) 1.

45

Ibid.

46

Ibid. 10.

47

Ibid.

48

See Section 4A below for a detailed discussion.

49

See, for example, Department for BEIS Department, Government Invites Unions to Return to the Table and Call Off Strikes (5 January 2023) and comparative references in the Impact Assessment (n.32).

50

Grant Shapps HC Deb, vol 726, col 63 (16 January 2023).

51

Alan Bogg, ‘The Right to Strike, Minimum Service Levels, and European Values’ (2023) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4410323> Abstract.

52

Impact assessment (n.32) 1 and 13–15.

53

For example see Unison, Industrial Action Handbook <https://www.unison.org.uk/content/uploads/2019/06/25528.pdf 27 and RCN, Industrial Action Handbook ‘Preservation of Life and Limb’ https://www.rcn.org.uk/employment-and-pay/Industrial-Action-Handbook#participatinginindustrialaction.

54

Adams et al (n.15) 1052.

55

Ibid.

56

Impact Assessment (n.32) 15.

57

Ibid. [20–26].

58

s 234B(4) TULRCA 1992 (inserted by the Strikes Act 2023).

59

s 3 TUA 2016.

60

Ibid. s 3(2b).

61

Delegated Powers Memorandum (n.34) [19].

62

Ibid.

63

House of Lords Secondary Legislation Scrutiny Committee, Government by Diktat (HL 2021) 10.

64

Joshua Rozenberg, ‘How the Work Bill Will Work’ (11 January 2023) https://rozenberg.substack.com/p/how-the-work-bill-will-work.

65

s 3 Strikes Act 2023.

66

s 234F(1) TULRCA 1992 (inserted by the Strikes Act 2023).

67

See Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms [1972] 1 All ER 280.

68

R (ASLEF, Unison and NASUW) v the Secretary of State for Business and Trade [2023] EWHC 1781.

69

Ibid. [176].

70

Proposed amendment 2D (n.35).

71

Ibid.

72

House of Lords Delegated Powers and Regulatory Reform Committee, Guidance for Departments on the Role and Requirements of the Committee (November 2021) 5.

73

Philippa Tudor, ‘Secondary Legislation: Second Class or Crucial?’ (2000) 21 Statute Law Review 149, 152.

74

See Anthony Bradley, Keith Ewing and Christopher Knight, Constitutional and Administrative Law (London: Pearson, 2014) Ch 22; Government by Diktat (n.63) and HL Delegated Powers and Regulatory Reform Committee, Democracy Denied? HL Paper 106 (November 2021).

75

Bradley, Ewing and Knight (ibid.) 584.

76

Delegated Powers Memorandum (n.34) [14 and 18].

77

s 234C (4) TULRCA 1992 (inserted by the Strikes Act 2023).

78

Ibid. s 234C (3) (inserted by the Strikes Act 2023). There is a possibility of variation by the employer before the end of the 4th day before the strike date or at a later date if the employer and union agree (s 234C (1)(9) TULRCA 1992 inserted by the Strikes Act 2023).

79

Ibid. s 238A(9) (substituted by the Strikes Act 2023).

80

Ibid. 234C(8) (inserted by the Strikes Act 2023). Emphasis added.

81

Ibid.

82

Ibid. 234C(5) (inserted by the Strikes Act 2023).

83

ss 231 and 231A TULRCA 1992.

84

British Airways PLC v Unite the Union [2010] EWCA Civ 669 [77] (LJ Smith).

85

Ibid. [22].

86

Ibid.

87

Ibid. [76].

88

Ibid. [78].

89

See proposed amendment to s 234C(6) TULRCA 1992 in the original Bill https://publications.parliament.uk/pa/bills/cbill/58-03/0222/220222.pdf.

90

Mercer v Alternative Future Group Ltd & Anor [2022] EWCA Civ 379 (24 March 2022).

91

Adams et al (n.15) 759.

92

Mr D Warburton v The Chief Constable of Northamptonshire Police [2022] EAT 42.

93

Ibid. [51]. Emphasis added.

94

Lord Wedderburn, ‘Industrial Action, the State and the Public Interest’ in Benjamin Aaron and Lord Wedderburn (eds), Industrial Conflict (London: Longman, 1972) 364.

95

See Michael Ford, Advice: In the Matter of the Secretary State and the Rail Strike (24 June 2022) [24].

96

s 238A TULRCA 1992 (inserted by the Strikes Act 2023).

97

Keith Ewing and Lord John Hendy, ‘The minimum service levels Bill – why we should all be furious’, IER, 16 January 2023 https://www.ier.org.uk/comments/the-minimum-service-levels-bill-why-we-should-all-be-furious/.

98

s 236 TULRCA 1992.

99

Ibid. s 234E (inserted by the Strikes Act 2023).

100

Arto Laitinen and Anne Pessi, ‘Solidarity: Theory and Practice. An Introduction’ in Arto Laitinen and Anne Pessi (eds), Solidarity: Theory and Practice (Lanham, MD: Lexington Books, 2014) 10.

101

Richard Hyman ‘Where does solidarity end?’, Eurozine, 20 March 2022 www.eurozine.com/where-does-solidarity-end/.

102

s 237 TULRCA 1992.

103

Ibid. ss 64–67.

104

Wedderburn, ‘Freedom of Association and Philosophies’ (n.17) 25.

105

Ewing, The Strikes (Minimum Service Levels) Bill is Authoritarian, Illiberal and Illegal (n.6).

106

Ibid.

107

s 238A(9)(b) TULRCA 1992 (amended by the Strikes Act 2023).

108

This is the most likely scenario given that one could expect that unions would naturally want to protect all employees from severe sanctions, which is arguably what the Government may have hoped to achieve without mandating so.

109

This will not apply for selected members if we assume that the reasonable steps duty will be interpreted as at least implying a union duty to notify them upon receiving the employer’s notice.

110

Ewing, The Strikes (Minimum Service Levels) Bill is Authoritarian, Illiberal and Illegal (n.6).

111

See Impact Assessment (n.32) 1.

112

s 234E TULRCA 1992 (inserted by the Strikes Act 2023).

113

No systematic case-law exists on the application of the standard fairness criteria (under s 98 ERA 1996) in the context of unprotected official industrial action and selective dismissal/re-engagement. But see Sehmi v Gate Gourmet London Ltd; Sandhu and others v Gate Gourmet London Ltd (EAT/0264/08 & EAT/0265/08) for a generally lax procedural and substantive application of the band of reasonable responses test (for employees dismissed for unofficial industrial action after ceasing taking part in industrial action) favouring the employer.

114

Kevin Hollinrake HC Deb, vol 733, col. 79 (22 May 2023).

115

Strikes (Minimum Service Levels) Bill—Memorandum on European Convention of Human Rights (16 January 2023) https://publications.parliament.uk/pa/bills/cbill/58-03/0222/ECHRMemoStrikes(MinimumServiceLevels)Bill2023.pdf.

116

See Novitz, ‘Minimum Service Levels Legislation’ (n.6).

117

For an excellent summary of the various areas of criticism by ILO’s supervisory bodies see Keith Ewing, ‘The EU-UK Trade and Cooperation Agreement: Implications for ILO Standards and the European Social Charter in the United Kingdom’ (2021) 32(2) KLJ 306, 315–325.

118

Sajid Javid Letter to the Chair of JCHR https://www.parliament.uk/globalassets/documents/joint-committees/humanrights/Letter_from_Sajid_Javid_050116.pdf Annex [2].

119

Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022.

120

Both the impact assessment <https://www.legislation.gov.uk/ukia/2022/67/pdfs/ukia_20220067_en.pdf> and the explanatory memorandum (https://www.legislation.gov.uk/uksi/2022/852/pdfs/uksiem_20220852_en.pdf) do not make any reference to the ILO standards. For the ILO position see ILO, Compilation of decisions of the Committee of Freedom of Association, 6th edn (2018) [ILO Digest] 918; see also CEACR, Direct Request-Eswatini, adopted 2018, published 108th ILC session (2019) https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:3963818.

121

These regulations were quashed by the ASLEF, Unison and NASUW (n.68) High Court decision.

122

Rishi Sunak HC Deb, vol 725, col 553 (11 January 2023).

123

Grant Shapps HC Deb, vol 726, col 63 (16 January 2023).

124

ILO Digest (n.120) [1542].

125

Ibid. [830 and 866].

126

Ibid. [842].

127

Bernard Gernigon, Alberto Odero and Horacio Guido, ‘ILO Principles Concerning the Right to Strike’ (1998) 137(4) ILR 441, 452.

128

ILO Digest (n.120) [866].

129

CEACR, Observation (United Kingdom), adopted 2015, published 105th ILC session (2016) https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:3255351.

130

CEACR, Observation (Hungary), adopted 2017, published at 107th ILC session (2018) https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:3343707,102679,Hungary,2017).

131

ILO Digest (n.120) [878].

132

Ibid. [882].

133

CEACR, Observation (Hungary) (n.130).

134

ILO Digest (n.120) [881].

135

Ibid.

136

Government Letter to the Chair of the Joint Committee on Human Rights (21 February 2023) https://committees.parliament.uk/publications/34078/documents/187455/default/.

137

ILO Digest (n.120) [883].

138

Ibid.

139

CEACR, Observation (Hungary) (n.130).

140

Patrick Elias, ‘Reflections on Judicial Power and Human Rights’ in Alan Bogg, Jacob Rowbottom and Alison Young (eds), The Constitution of Social Democracy (Oxford: Hart, 2020) 3.

141

ILO Digest (n.120) [874].

142

Ibid. [867].

143

Ibid. [874].

144

Grant Shapps, HC, vol 726, col. 54 (16 January 2023).

145

Secretary of State Foreword, Minimum Service Levels in Event of Strike Action: Ambulance Services in England, Scotland and Wales (14 March 2023) https://www.gov.uk/government/consultations/minimum-service-levels-in-event-of-strike-action-ambulance-services/minimum-service-levels-in-event-of-strike-action-ambulance-services-in-england-scotland-and-wales.

146

CEACR, Observation (United Kingdom), adopted in 1989, published at the 76th ILC Session https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:2077801,102651,United%20Kingdom%20of%20Great%20Britain%20and%20Northern%20Ireland,1989.

147

CEACR, Direct Request (United Kingdom), adopted in 2016, published at the 106th ILC session (2017) https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:3299879,102651,United%20Kingdom%20of%20Great%20Britain%20and%20Northern%20Ireland,2016.

148

CEACR, Observation (United Kingdom) (n.146).

149

ECHR Memorandum (n.115) [53].

150

Ibid.

151

Kevin Hollinrake HC Deb, vol 736, col 712 (17 July 2023).

152

Proposed amendment 2D (n.35).

153

See ECtHR, Association of Academics against Iceland (application 2451/16) [24].

154

Nicola Lupo and Giovanni Piccirilli, ‘European Court of Human Rights and the Quality of Legislation: Shifting to a Substantial Concept of “Law”?’ (2012) 6(2) Legisprudence 229.

155

Sunday Times v UK (1979–80) 2 EHRR 245 [49].

156

O’Carroll v United Kingdom (2005) 41 EHRR SE1 [1].

157

ECHR Memorandum (n.115) [23].

158

Transport Strikes (Minimum Service Levels) Bill Memorandum on European Convention of Human Rights [48–53] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1112462/transport-strikes-minimum-service-levels-bill-echr-memorandum.pdf.

159

ECHR Memorandum (n.115) [8] referring to RMT v UK (2012) ECHR 1717, [86].

160

RMT v UK (ibid.) [88].

161

Ibid. [77].

162

Alan Bogg and Keith Ewing, ‘The Implications of the RMT Case’ (2014) 43(3) ILJ 221, 236.

163

RMT v UK (n.159) [86].

164

Ibid.

165

Ibid.

166

See Peter Cumper and Tom Lewis, ‘Blanket Bans, Subsidiarity, and the Procedural Turn of the European Court of Human Rights’ (2019) 68(3) International Comparative & Law Quarterly 611.

167

Ognevenko v Russia App no 44873/09 (ECtHR, 06 May 2019) [76].

168

See Kaperzynski v. Poland App no. 43206/07 (ECtHR, 03 Apr 2012) [70] and the quoted judgments.

169

See Trine Baumbach, ‘Chilling Effect as a European Court of Human Rights’ Concept in Media Law Cases’ (2018) 6(1) Bergen Journal of Criminal Law and Criminal Justice 92.

170

See Ognevenko (n.167) [83].

171

Demir and Baykara v Turkey (2009) 48 EHRR [67].

172

Ognevenko (n.167) [72].

173

RMT (n.159) [98].

174

Ognevenko (n.167) [77].

175

Bogg, ‘Beyond Neo-Liberalism’ (n.8).

176

Ibid. 300.

177

Ibid. 308.

178

Term used in Eric Tucker, ‘Can Worker Voice Strike Back? Law and the Decline and Uncertain Future of Strikes’ in Alan Bogg and Tonia Novitz (eds), Voices at Work (Oxford: OUP, 2014) 463.

179

Grant Shapps HC Deb, vol 726, col 64 (16 January 2023).

180

See Tonia Novitz, International and European Protection of the Right to Strike (Oxford: OUP, 2003) 56–64.

181

Honor Brabazon, ‘Dissent in a Juridified Political Sphere’ in Honor Brabazon (ed), Neo-Liberal Legality (Oxford: OUP, 2016) 65.

182

Balakrishnan Rajagopal, International Law from Below (Cambridge: CUP, 2003) 10.

183

Bogg refers to ‘constitutional constraints’ in the discussion of the friend/enemy distinction [Bogg, ‘Beyond Neo-Liberalism’ (n.8) 336] and devolution [Bogg, ‘Beyond Neo-Liberalism’ (n.8) 326–328].

184

A.V. Dicey, Introductory to the Study of the Law of the Constitution, 8th edn (London: Macmillan, 1915) 25.

185

Keith Ewing, ‘The Resilience of the Political Constitution’ (2019) 14(12) German Law Journal 2111, 2118.

186

F.F. Ridley, ‘There is No British Constitution: A Dangerous Case of the Emperor’s Clothes’ (1988) 41(3) Parliamentary Affairs 340, 361.

187

Lord Hailsham, ‘Elective Dictatorship’, The Listener, 21 October 1976, 497.

188

For the importance of the ‘informal’ political system for Britain see Keith Middlemas, Power Competition and the State, vol 3 (London: MacMillan, 1991).

189

Vernon Bogdanor, The New British Constitution (Hart, 2009) 15.

190

Ibid.

191

Keith Middlemas, Politics in Industrial Society (London: André Deutsch, 1979) 462.

192

See National Sailors’ and Firemen’s Union v. Reed [1926] 1 Ch. 536.

193

Wedderburn, Worker and the Law (n.9) 850.

194

For the issue of executive accountability in the UK see Adam Tomkins, ‘The Struggle to Delimit Executive Power in Britain’ in Paul Craig and Adam Tomkins (eds), The Executive and Public Law (Oxford: OUP, 2005).

195

Alan Bogg, Democratic Aspects of Trade Union Recognition (Oxford: Hart, 2009) 285–286.

196

Bogdanor (n.189) 300. Emphasis added.

197

Ibid. 299.

198

Ibid. Emphasis added.

199

Labour Party, A New Britain (Labour Party, 2022) 2.

200

See Section 5C below.

201

Bogg, ‘Beyond Neo-Liberalism’ (n.8) 306. Emphasis in the original.

202

Ibid. 312.

203

Ibid.

204

Bogdanor (n.189) 89 and generally on devolution Ch 4.

205

As confirmed in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [136–151].

206

Included in the MoU between the UK Government and the Devolved Governments (December 2001) (Cm 5240) [14] and in subsequent updates.

207

Letter from the Minister for Enterprise, Markets and Small Business to the First Minister (of Wales) (10 January 2023) quoted in Welsh Parliament, Legislative Consent Memorandum (09 February 2023) https://senedd.wales/media/tpqld5k0/lcm-ld15659-e.pdf 5.

208

See Legislative Consent Memorandum (ibid.) 3.

209

Scottish Government, Strikes (Minimum Service Levels) Bill: letter to UK Government (24 January 2023) https://www.gov.scot/publications/strikes-minimum-service-levels-bill-letter-to-uk-government/.

210

See ibid. and Welsh Government Letter to the UK Government https://www.gov.wales/sites/default/files/publications/2023-02/letter-strikes-mininum-service-levels-bill.pdf.

211

Otto Kahn-Freund, ‘Labour Law’ in Morris Ginsberg (ed), Law and Opinion in England in the 20th century (London: Stevens & Sons, 1959) 224; For an excellent concise account of CLF and its critiques see Bogg, Democratic Aspects of Trade Union Recognition (n.195) Ch 1.

212

Kahn-Freund (ibid.) 223.

213

Lord Wedderburn, ‘Change, Struggle and Ideology in British Labour Law’ in Labour Law and Freedom (n.2) 34.

214

Davies and Freedland (n.16) 642.

215

Keith Ewing, ‘The Social Democratic Constitution’ in Peter Cane and H. Kumarasingham (eds), The Cambridge Constitutional History of the United Kingdom, vol 1 (Cambridge: CUP, 2023).

216

Paul Smith and Gary Morton, ‘Union Exclusion and the Decollectivization of Industrial Relations in Contemporary Britain’ (1993) 31(1) BJIR 97.

217

Davies and Freedland (n.16) Ch 8.

218

See Jon Clark and Lord Wedderburn, ‘Juridification – A Universal Trend? The British Experience in Labor Law’ in Gunther Teubner (ed), Juridification of Social Spheres (Berlin: de Gruyter, 1987).

219

See Michael Gordon, ‘Parliamentary Sovereignty and Constitutional Futures’ in Constitution of Social Democracy (n.140) 84.

220

See Bogg, ‘Beyond Neo-Liberalism’ (n.8) 312.

221

Ibid. 322 referring to Auerbach (n.14).

222

Bogg, ‘Beyond Neo-Liberalism’ (ibid.) 324–325.

223

Ibid. 335 where Bogg refers to the Carl Schmitt’s famous deployment of the friend/enemy distinction in analysing the TUA 2016.

224

Impact assessment (n.32) 1.

225

Grant Shapps HC Deb, vol 726, col 54 (16 January 2023).

226

See Impact Assessment (n.32).

227

Penny Mordaunt quoted in Ned Simmons, ‘Strikes Do Not Help Striking Workers, Says Penny Mordaunt’, Huffington Post, 19 February 2023 https://www.huffingtonpost.co.uk/entry/strikes-do-not-help-striking-workers-says-penny-mordaunt_uk_63f1e7dae4b0a1ee14948033.

228

Bogg, ‘Beyond Neo-Liberalism’ (n.8).

229

Otto Kahn-Freund, Labour Relations: Heritage and Adjustment (Oxford: OUP, 1979) 78.

230

Ibid. 76.

231

Ibid. 78–81.

232

Ibid. 78.

233

Bogg, ‘Beyond Neo-Liberalism’ (n.8) 309.

234

Dan Zahedi, ‘Junior Doctors Are Preparing for the Fight of their Lives’, Tribune, 9 January 2023 https://tribunemag.co.uk/2023/01/junior-doctors-are-preparing-for-the-fight-of-their-lives.

235

Gawain Little quoted in Elle Hunt, ‘Why We Strike – Eight Workers on their Reasons for Joining the Picket Line in Britain’s New Winter of Discontent’, Guardian, 21 January 2023 https://www.theguardian.com/uk-news/2023/jan/21/why-we-strike-workers-reasons-joining-picket-line-britains-new-winter-discontent.

236

Editorial, ‘The Guardian View on Doctors on Strike: A Symptom of a Deeper Crisis’, Guardian, 12 April 2023 https://www.theguardian.com/commentisfree/2023/apr/12/the-guardian-view-on-doctors-on-strike-a-symptom-of-a-deeper-crisis.

237

Impact assessment (n.32) 1.

238

HC Transport Committee (Oral Evidence) 11 January 2023, HC581 Q321-322. Emphasis added.

239

See Katherine Garratt, The NHS Workforce in England (Research Briefing, HC Library 2023).

240

Zygmunt Bauman, Liquid Modernity (Cambridge: Polity, 2000) 39.

241

Glenn Carrington, Quoted in Elle Hunt (n.235).

242

Grant Shapps HC Deb, vol 725, col 432 (10 January 2023).

243

Keith Ewing and Lord Hendy, ‘Covid-19 and the Failure of Labour Law: Part 1’ (2020) 49(4) ILJ 497.

244

See Ben Lohmeyer and Nik Taylor, ‘War, Heroes and Sacrifice: Masking Neoliberal Violence During the COVID-19 Pandemic’ (2021) 47(4–5) Critical Sociology 625.

245

See Ipsos, ‘British Public More Likely to Support Than Oppose Teachers Going On Strike’, Ipsos, 28 April 2023 https://www.ipsos.com/en-uk/british-public-more-likely-support-oppose-teachers-going-strike.

246

Bogg, ‘Beyond Neo-liberalism’ (n.8).

247

Ibid. 334.

248

Ibid. 335.

249

Bogg, Democratic Aspects of Trade Union Recognition (n.195) 84.

250

Ibid. 83.

251

Ibid.

252

On Hayek’s consequentialist view of coercion and liberty see Andrew Gamble, ‘Hayek and Liberty’ (2013) 25(3–4) Critical Review 342.

253

Herman Heller, ‘Authoritarian Liberalism’ (2015) 21(3) ELJ 295. Originally published in 1933.

254

Michael Wilkinson, ‘Authoritarian Liberalism as Authoritarian Constitutionalism’ in García and Frankenberg (n.7).

255

Henry Giroux, ‘The Terror of Neoliberalism: Rethinking the Significance of Cultural Politics’ (2005) 32(1) College Literature 1, 2.

256

Wendy Brown, In the Ruins of Neoliberalism: The Rise of Antidemocratic Politics in the West (New York: Columbia University Press, 2019) 62.

257

Matthew Ryan, ‘Interrogating “Authoritarian Neoliberalism”: The Problem of Periodization’ (2019) 23(2) Competition & Change 116, 126.

258

Ibid.

259

See Norman Spaulding, ‘States of Authoritarianism in Liberal Democratic Regimes’ in García and Frankenberg (n.7).

260

Damien Cahill, ‘Ideas-Centred Explanations of the Rise of Neoliberalism: A Critique’ (2013) 48(1) Australian Journal of Political Science 71.

261

Wedderburn, ‘Freedom of Association and Philosophies’ (n.17).

262

Wedderburn, ‘Freedom and Frontiers of Labour Law’ in Wedderburn, Labour Law and Freedom (n.2) 352.

263

Wedderburn, ‘The New Politics of Labour Law’ (n.1) 80.

264

See Jamie Peck, ‘Explaining (with) Neoliberalism’ (2013) 1(2) Territory, Politics, Governance 132.

265

Bogg, ‘Beyond Neo-Liberalism’ (n.8) 335.

266

Ibid. 299.

267

Ntina Tzouvala, ‘Continuity and Rupture in Restraining the Right to Strike’ in Neo-liberal Legality (n.181) 18. see further David Harvey, A Brief History of Neoliberalism (Oxford: OUP, 2005).

268

Ian Bruff, ‘The Rise of Authoritarian Neoliberalism’ (2014) 26(1) Rethinking Marxism 113 and Cemal Tansel, ‘Authoritarian Neoliberalism: Towards a New Research Agenda’ in Cemal Tansel (ed), States of Discipline (London: Rowman and Littlefield, 2017).

269

Marco Boffo, Alfredo Saad-Filho and Ben Fine, ‘Neoliberal Capitalism: The Authoritarian Turn’ (2019) 55 Socialist Register 246, 249.

270

Tansel (n.268) 2.

271

Ibid.

272

Jamie Peck, ‘Zombie Neoliberalism and the Ambidextrous State’ (2010) 14(1) Theoretical Criminology 104.

273

See Bob Jessop, ‘The Organic Crisis of the British State: Putting Brexit in its Place’ (2016) 14(1) Globalizations 133.

274

Antonio Gramsci, Selections from the Prison Notebooks Quintin Hoare and Geoffrey Smith trs (London: Lawrence and Wishart, 1971) 178.

275

Labour Party (n.199) 21.

276

Ibid.

277

Ibid.

278

Kalina Arabadjieva et al ‘Introduction’ in Kalina Arabadjieva et al (eds), Transformative Ideas—Ensuring a Just Share of Progress for All (ETUI, 2023) 8.

279

See ONS, The Impact of Strikes in the UK: June 2022 to February 2023’ https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/workplacedisputesandworkingconditions/articles/theimpactofstrikesintheuk/june2022tofebruary2023.

280

Arabadjieva et al (n.278) 7.

281

BMA, ‘The Real Terms (RPI) Pay Detriment Experienced By Junior Doctors in England Since 2008/09’ (BMA, 2023) https://www.bma.org.uk/media/6134/bma-ia-pay-restoration-methodology-13-september-2022.pdf (26.1% real pay cut from 2008 to 2019); see the concise article by Ashley Kirk, ‘How Public Sector Pay has Fallen in Real Terms – in Charts’, Guardian, 19 July 2022 https://www.theguardian.com/society/2022/jul/19/how-public-sector-pay-has-fallen-in-real-terms-in-charts.

282

Zahedi (n.234).

283

Nesrine Malik, ‘Striking Workers are Telling the Truth About Britain. No Wonder Politicians Want to Silence Them’, Guardian, 16 January 2023 <https://www.theguardian.com/commentisfree/2023/jan/16/strike-workers-britain-politicians-tories-labour>

284

Ibid.

285

Graeme Wearden, ‘Britons “Need to Accept” They’re Poorer, Says Bank of England Economist’, Guardian, 25 April 2023 https://www.theguardian.com/business/2023/apr/25/britons-need-to-accept-theyre-poorer-says-bank-of-england-economist.

286

See Marija Bartl, ‘Imaginaries of Prosperity as Constitutional Imaginaries’ in Jan Komarek (ed), European Constitutional Imaginaries: Between Ideology and Utopia (Oxford: OUP, 2023).

287

Nicos Poulantzas, State, Power and Socialism (London: Verso, 1978).

288

Boffo, Saad-Filho and Fine (n.269) 260.

289

Alison Ayers and Alfredo Saad-Filho, ‘Democracy against Neoliberalism: Paradoxes, Limitations, Transcendence’ (2015) 41(4–5) Critical Sociology 597.

290

Colin Crouch, Post-Democracy (Polity Press, 2004) 4.

291

See Bryan Evans et al (eds), From Consent to Coercion: The Continuing Assault on Labour, 4th edn (University of Toronto Press, 2023).

292

Poulantzas (n.287) 241.

293

Wedderburn, ‘The Right to Strike: Is there a European standard’ (n.10) 316.

294

Keith Ewing, ‘The Function of Trade Unions’ (2005) 34(1) ILJ 1.

295

Tomkins (n.194).

296

Frankenberg (n.7) 13.

297

Hailsham (n.187).

298

Wedderburn, ‘The New Politics of Labour Law’ (n.1) 80.

299

Quoted in Wedderburn, ‘Labour Law and the Individual’ (n.2) 286.