Why is minimum service law not being used for England train strikes?

Train drivers are on strike again this week, bringing services to a halt around England in a series of separate 24-hour stoppages. The government promised in its manifesto to take action to limit the effects of transport strikes by changing the law. But despite new minimum service levels powers to make at least some trains run, no one will be enforcing the legislation this week. What are the new rules – and what is going on?

What are the powers under minimum service levels laws?

Under the Strikes (Minimum Service Levels) Act passed late last year, train operators –and other employers in certain sectors deemed critical – are legally allowed to tell some striking workers to show up for work, in order to provide a minimum service level (MSL). In rail, that has been set as the equivalent of 40% of the normal timetable.

How should MSLs work, and who enforces them?

Unions already had to give two weeks’ notice of a strike under British laws. Now, employers have up to a week to formally consult with unions over their intention to require some of the workforce to turn up regardless, before issuing “work notices” to individual employees at least seven days before the strike. In the case of the rail strikes, the government said the decision was a matter for each train operating company, but ministers made clear that they expected them to use the new powers.

Did anyone attempt to use them?

Only one train operator, LNER – one of three now under direct state control – is understood to have taken clear steps towards using MSLs during the planned rolling strikes by train drivers. The drivers union Aslef responded by calling five additional days of strikes, instead of the originally planned 24-hour action. LNER backed down and Aslef called off the extra strikes.

Was this issue foreseen?

To some extent. At the House of Commons transport select committees examining the issue, representatives from train operators gave evidence that MSLs could worsen industrial relations and said there was a lack of clarity over what exactly should run. Unions said the rules were unworkable. The committee expressed concern that MSLs would give passengers even less certainty over whether trains would run. The government’s own impact assessment said the introduction of the legislation could prolong strikes, with unions calling more stoppages to have the same cumulative impact.

What other sectors could be affected?

The legislation is designed to apply across transport services, as well as health, fire and rescue, education, nuclear energy and border security. Ministers for the respective sectors are responsible for setting the actual minimum services to be applied. The TUC has said it threatens the right to strike and vowed to keep fighting the legislation – and fully back any worker sanctioned under the new powers for remaining on strike.

What do the government and Labour say?

Downing Street on Monday said train operators “should be ready to use [MSLs] to reduce the impact of strikes on passengers – it’s obviously something that we and the public expect to be used.” But the prime minister’s spokesperson added: “It is still for the individual employers to decide – it’s down to them to manage their business effectively.”

Labour has vowed to repeal the legislation immediately in government, raising the possibility in election year that the new powers could be scrapped before train firms ever use them.