If Mogg says its bad ...it's pretty bad...

 

An unlikely critic of the Conservative's "Strikes (Minimum Service Levels) Bill 2023" emerged in the Commons yesterday when arch-Brexiteer and Singer-of-Songs-About-Singarpore-on-Thames Jacob Rees-Mogg put the boot in.  You know it's bad if Jacob says its bad.

The Bill purports to insist that there should be a minimum service level for the health, education services, fire and rescue, border security and nuclear decommissioning industries during strikes.  But what is a minimum service level?  Initially, there was talk of it only being ~20 per cent of striking workers being named as having to work ... but that doesn't make any sense.  You can't take 80 per cent of workers out of a railway system and expect it to work as obviously jobs are inter-dependent.  Personally I don't understand ... and neither it seems does Jacob who opines that the complete lack of detail in the draft legislation is beyond farcial...

"This is almost so skeletal that you wonder if bits of the bones have been stolen away by wild animals and taken and buried somewhere, as if, you know, in cartoons," says he.

The Bill he also notes contains a lot of sections allowing Ministers to change its provision by statutory instrument (bypassing parliament later).  A process known as using "Henry VIII clauses" because it resembles government by decree.  Mr Rees-Mogg points out that this is "bad constitutional practice".  No doubt its a practice the government got used to during Covid when for emergency reasons legislation was varied by statutory instrument all the time.  Lots of legislation these days is changed by statutory instrument.  The level of the Sovereign Grant for example... However, the Right to Strike seems somewhat more important.

So is Jacob a secret socialist?  Sadly I fear not ... his primary motivation in this matter seems to be the worry that such poorly drafted legislation will end in various embarrassing Judicial Reviews.  Even with the best will in the world this Bill will be difficult to defend legally without clear drafting.  Without a proper pre-implementation impact assessment it's likely to become unstuck on old favorite constitutional obstacle Wednesbury Reasonableness.  

For those of you who haven't spent long periods of your lives in protracted conflicts with local Councils ... basically as a result of "Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948]" a government decision or law can be overturned in the courts when it is...

  "so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"

... a situation that happened to Jacob himself during the prorogation crisis of 2019.  Could it be that Jacob, unlike his colleagues, is able to learn from his mistakes?

Pootling over to the Parliament website here's what I make of the clauses of the Bill as they are now:

Lord Callanan previous Parliamentary Under Secretary of State at the Department for Business, Energy and Industrial Strategy and Minister of State at the Department for Exiting the European Union doesn't think this has any bearing on the European Convention of Human Rights.  You may think that rights are indivisible but Lord Callanan recons they're more divisible for some workers than others

This will restrict the right to strike in the Trade Union and Labour Relations (Consolidation) Act 1992.  This Bill gives Power to make consequential provision to the The Secretary of State may by regulations made by statutory instrument that we haven't thought up yet.  He can also make amend, repeal or revoke provision made by or under primary legislation as the mood takes him.

That said a draft of the instrument has to be laid before, and approved by a resolution of, each House of Parliament for him to exercise this power?  

Primary legislation also means laws made by devolved parliaments within Great Britain but not Northern Ireland because of Brexit.

The Bill then goes into the exact passages to be inserted into the Trade Union and Labour Relations (Consolidation) Act 1992 as new clauses 234B onwards...

234B defines the branches of government affected and when the Bill comes into force and how

234C defines the process for issuing "work notices" saying who has to work instead of strike which must be issued 7 days before the strike.  People who have been identified to work don't have to be Union Members but the unions seem to still be responsible for their actions if they're not?  The employer can change their mind about how many people he needs up to 4 days ahead.  Each strike date requires its own individual work notice notification and implementation process.

234D Oh dear, ... We've just thought about GDPR.

234E If the work notice process isn't done exactly correctly then we can sack anyone striking

234F Before making regulations under section 234B the Secretary of State must consult such persons as he or she recons they should

234G You're still allowed overtime bans.

The rest of the bill is a list of clauses in the Trade Union and Labour Relations (Consolidation) Act 1992 that need to be altered or changed to make the retroactive insertions make grammatical sense and not contradict each other ....

I think...