The new minimum service levels Bill: Consultation for Passenger Rail implementation released

Overview

The Department for Transport (“DfT”) is currently consulting on minimum service levels ( “MSLs”) for passenger rail services during strike action. The consultation document dated February 2023 (the “Consultation Document”) is available here). This consultation is being undertaken in parallel with the passage through Parliament of the Strikes (Minimum Service Levels) Bill (the “Bill”) which was introduced in January 2023 and will establish a framework for MSLs specified by government to be applied during strikes for certain services within designated sectors. Our round up of key points from the Bill for employers can be found here.

The Consultation Document explains that rail strikes can cause significant disruption to the daily lives of passengers (such as not being able to get to work) and highlights that rail strikes caused a £500 million loss in UK economic output between June 2022 and January 2023. The Government proposes introducing MSLs to play an important role in mitigating such impacts, by balancing rail passengers’ travel needs with the ability of rail workers to take strike action.

MSLs are already used in other countries, with Italy and Spain referenced in particular. However the DfT emphasises in the Consultation Document that the operation of rail and employment laws are unique to each country and so MSLs will be designed to ‘work for Great Britain’.

The DfT sees MSLs as a means of enabling more passengers to continue to make essential journeys, for example, to access work and healthcare facilities. Currently rail providers seek to implement a reduced service during a strike often relying on the deployment of contingency staff where this is possible. However, the Government considers the impact of these strikes is too disruptive, as in some cases strike action has seen services cancelled completely or significantly reduced which has significant impacts on the parts of the country where this occurs.

MSLs would be a minimum level of service for passenger rail set by the Secretary of State in regulations, and the legislation would then allow a rail sector employer to issue a notice requiring certain workers to work to achieve that level of service. Striking Trades Unions would then be under an obligation to take reasonable steps to ensure that any of their members covered by any such work notice comply with the requirements of the notice. Failure to do so could result in the Trades Union being exposed to a damages claim.

The Consultation Document seeks further evidence and views on the impact of strikes and the ways MSLs should work. The DfT is particularly keen to hear from industry stakeholders and workers, rail users, businesses and local transport authorities. Responses will be used by the DfT to decide what would be appropriate MSLs considered to be operationally deliverable.

Principles and scope of MSLs for rail

A core focus of the Consultation Document is assessing how rail workers’ right to strike and the rights of passengers can be balanced when setting MSLs. The DfT has proposed some overarching principles to guide the design of MSLs and seeks views on these. The proposed principles revolve around safety and reliability, certainty of services, and a need to balance the ability to strike with passengers’ needs.

The Consultation Document also proposes a defined scope of rail services in respect of which the MSLs will apply. In addition to the DfT-contracted passenger train operating companies, the proposed scope also includes light rail operators (including underground and trams), infrastructure operators, open access train operators, train and tram light maintenance service providers and station service providers. International and freight operations are excluded.

How and where will levels be set?

The DfT is seeking to establish further detail on passengers’ primary rail travel purposes and how previous strike action has impacted their journeys or plans to travel. This includes understanding how often rail travel is used for work, education, healthcare, family and leisure reasons. Whilst the DfT asks for views on how important these reasons to travel are, it is not yet clear if MSLs will aim to mitigate the impact on all these reasons for travelling.

The Consultation Document also includes questions to rail employers on how they have managed strike action operationally, as well as expected resourcing needs and financial implications for a range of minimum service scenarios. This appears to be focussed on testing the extent to which different levels of minimum service could interfere with planned strike action. Trades Unions are invited to engage too on how MSLs could be designed to mitigate the impacts of strike action on passengers whilst still allowing strikes to be effective.

The DfT proposes and seeks views on two specific options for implementing MSLs:

• the first option is a reduced service level based on the existing timetable for that particular date, which would be responsive to travel patterns and passenger needs. The exact level of reduced service would be determined following consideration of the responses to the consultation; and
• the second option is a priority route map. This is the approach Network Rail generally adopts at present where there are strikes affecting its operations. The DfT suggests this option could either be focussed on increased hours of operation compared to what tends to be seen for strikes now, or increased geographical coverage. Again, there is no proposal yet as to what the minimum level of service would be over that priority route map.

Impact on services in devolved areas

The Bill applies to England, Wales and Scotland as it relates to industrial action and employment law which is not devolved to the Welsh and Scottish Government. However, the DfT is seeking to understand the extent to which MSLs should be introduced across both devolved administrations, and also where combined authorities have input or responsibility for rail services. The exact relationship between MSLs and the complexity of devolved authorities’ roles and responsibilities for rail services is clearly still to be decided, and would be shaped by responses received.

Responding and next steps

Any interested respondents have until 15 May 2023 to submit their responses to the consultation. There is no indication yet of when regulations would be laid but the Bill has had a very expedited journey through Parliament (having completed Lords committee stage already) suggesting this is priority legislation that the Government wishes to see implemented.