Minimum service levels are not a game-changer in rail

October 25, 2022

As the RMT announced three new rail strike dates, earlier this week, one of the Truss adminstration’s last acts was to announce a plan to impose “minimum service levels,” MSLs, in future industrial action on the railways.

I helped develop the MSL policy in government, but I and the ministers I served were always clear that it needed to be part of a wider package, not the main focus. MSLs are not a game-changer, at least in rail. They will not, in the words of the then Tory chairman, Jake Berry, “ensure the summer of chaos on our railways [is] a thing of the past.” Truss’s promise that MSLs will “make sure that we have smooth-running rail services” is wrong, too.

Indeed, the  announcement doesn’t actually tell us what the minimum will be. It says the government “will consult with industries on specific levels of service.” Nor, it is clear, will anything happen in time for the current round of strikes; the bill will not become law until “next year.” Even when passed, the bill will only set a “legal framework” for MSLs; there will be a public consultation and further, secondary, legislation to require employers to start work on delivering agreements for the actual minimum service. If the minimum is low, say 20-25 per cent, it won’t make much difference; the railways already operate that service on most strike days, though it could be useful on days when the drivers’ union, Aslef, is out. If it is higher, there will be a legal judgment as what level crosses the threshold of abridging workers’ European Convention right to strike.

Once you’ve done all the primary legislation, the consultation and the secondary legislation, then decided your headline minimum in each industry, the next task is translating that into exactly who, where, and in what jobs must turn up for work to deliver it. In rail, at least, some staff are more important than others; you can’t operate a (say) 40% service simply by requiring 40% of the workforce to come in. The details will need to be specified down to, for instance, individual signal boxes.

The railway companies will then have to negotiate those “minimum service agreements” with – you’re ahead of me here – the same unions that have spent the last 18 months refusing to negotiate seriously about working practices and pay. Involving the unions is probably necessary to fortify the policy against legal challenge, but we should expect endless obstruction and timewasting. When the negotiations fail, as they probably will, and minimum service agreements are imposed by the Central Arbitration Committee, expect court cases.

Most of the latter may well be dismissed; MSLs (usually around 20-30%) operate in several other western democracies, and have been ruled compatible with the European Convention. But the question then becomes: how do you enforce your new minimum service agreement? Will individual staff be subject to civil or criminal sanctions if they refuse to work, will the union, or will it be the employer? In rail, which is on taxpayer life-support, fining the employer would of course be the government fining itself.

We proposed removing the protection against dismissal from workers who refused their MSL obligation to work – but dismissals could, of course, trigger further industrial action. Would it look unfair? Would it create martyrs? What happens if they all just pretend to go sick, a favourite rail union tactic? Can you still fire them then? Would MSLs in fact promote more industrial action than they mitigate? In particular, could they trigger more action short of strikes – overtime bans, working to rule and so on – which aren’t and can’t be covered by MSLs?

Would fining the unions do it? But what if they looked the judge straight in the eye and said, sorry, your Lordship, we told our members to work, we really did, but they just wouldn’t. Could you prove that they were lying?

Reactionary union leadership is perhaps the biggest threat to the railways’ future and therefore their members’ own jobs. Despite a big fall in passenger numbers and revenues, the current strikes essentially demand that the state pays billions to continue unreformed, 30 or 40-year-old practices that make services worse; make the railway less safe; and which reflect a world not just before covid, but before technological and social change. Those billions just won’t come; without reform, the network’s only future is Seventies-style decline.

So it’s important for all concerned that the reform agenda succeeds. But there are other things that will help it better than MSLs, some of which we will describe over the next few weeks.


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