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31 January 2023

Strikes bill makes a strange union in parliament

Jacob Rees-Mogg and John McDonnell were both critical of the minimum service law.

By Freddie Hayward

The Minimum Service Levels Bill has been voted through the Commons. The bill would mean some workers, including in the rail industry, could be sacked if they refuse to work during industrial action.

The detail in the bill is scarce. What a “minimum service” to be provided in an industry actually means would be decided by ministers through regulation after the bill becomes law. Clause 3 of the bill gives the government the power to amend legislation that is not yet passed, which means that MPs cannot know what future amendments to legislation they are permitting right now.

These wide-ranging powers brought John McDonnell and Jacob Rees-Mogg together in criticising the bill (even if Rees-Mogg, the former business secretary, voted for it regardless). “I’m a supporter of this bill. I think this is a good bill and a proportionate bill. But I think it is a badly written bill,” Rees-Mogg said in his speech.

After rejecting an invitation from McDonnell, who was shadow chancellor under Jeremy Corbyn, to challenge the government in the Commons, Mogg concluded his speech with the point that this poorly written piece of legislation has undemocratic consequences because it invites a greater role for the courts. That’s not the usual narrative, particularly from those in the Conservative Party. Court decisions on political matters are often put down to the assertiveness of judges, the activism of “lefty lawyers” or some mysterious interference from the “deep state”.

Matthew Williams from Oxford University has also argued that the rise in judicial review is not explained by judges taking power for themselves but is simply a consequence of the rising indeterminacy of legislation. (We discussed the argument on this week’s podcast, in relation to whether the list of protected characteristics in the Equality Act should be expanded to include things such as the menopause.) It makes sense: if parliament doesn’t decide the specific meaning of legislation – leaving it up to a minister, for instance – then someone else must, and in the British system that role often falls to the courts.

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If that is the case, then the criticism often levelled at the courts for going beyond their remit should actually be directed at the shoddy work of MPs.

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This piece first appeared in the Morning Call newsletter; subscribe here.

[See also: Is Mick Lynch working class?]

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