Matthew Bowles: There is a smarter way to deal with doctors’ strikes

Matthew Bowles is a political commentator and Strategic Partnerships Manager at The Institute of Economic Affairs.

In 2023, NHS England logged over half a million cancelled appointments due to industrial action – figures enough to fill Wembley Stadium five times over. For many patients, strikes haven’t just meant delays, but despair as well.

It is little surprise that Kemi Badenoch announced that her Conservative Party would introduce legislation for minimum service levels, thereby preventing doctors from taking widespread industrial action. This is likely to go down well with her base, signalling a toughened stance.

For a party desperate to reassert a sense of control, the promise of standing up to medical unions is both principled and politically savvy. Instead of wielding the nuclear option, however, a reformist government should adopt a more refined, robust model.

Look to New York’s ‘The Public Employees Fair Employment Act’, more commonly known as the Taylor Law. In 1967, following costly transit strikes, then-Governor Nelson Rockefeller established a commission to propose amendments to the 1947 Condon-Wadlin Act, which was deemed far too harsh and allowed the direct firing of any striking public sector employee.

The Taylor Law wasn’t just punitive; it aimed to improve conditions through structure and predictability. It outlaws public sector strikes by pairing prohibition with binding arbitration, strict minimum service mandates, and severe deterrents – penalties for striking include an additional day of pay for each day of a strike, totalling two days’ loss for each strike day, and even potential imprisonment of a union’s president.

Examples of the harsh deterrents being implemented were seen in New York’s 2005 transit strike. In the wake of the strike, the New York State Supreme Court declared TWU Local 100 (New York’s Public Transit Union) in violation of the law, fining them $2.5 million. The president of the union was jailed for four days.

The result of such legislation is that genuine dialogue between state officials and unions occurs, and walkouts are rare. According to data from the NYS Public Employment Relations Board, between 1983 and 2016, there were only 43 confirmed work stoppages by government workers in New York, a mere 1.3 strikes on average per year.

Compare this to the UK, and between February 2022 and February 2024, the monthly count of work stoppages in the public sector averaged 234.

European democracies also strike a more balanced tone. Countries such as France, Italy and Spain enforce minimum service levels during industrial action. But critically, these thresholds emerge from direct negotiation with unions. Unions, therefore, feel as though they have skin in the game, and ministers accept their role in crafting solutions rather than silencing dissent.

The Strikes (Minimum Service Levels) Act 2023 was the last attempt by a Conservative government. It allowed ministers to impose thresholds unilaterally if agreement could not be reached. This approach practically guaranteed antagonism. Labour has already pledged to repeal it.

A process of mandatory arbitration isn’t a radical suggestion. This could ensure a structured negotiation process and would reduce last-minute walkouts.

Badenoch may want to come down hard, but if her goal is disruption-free delivery of public services, especially healthcare, rather than courtroom wrangling, she needs a smarter playbook.

Whilst the Trades Union Congress (TUC) was strongly opposed to the introduction of minimum service levels that arose from the Strikes Act, in healthcare, and hospitals in particular, they do make sense. BMA walkouts in 2023-2024 were cited in five Prevention of Future Death Reports issued by coroners. Some of these cases were put down to neglect. Stoppages should not grind essential care to a halt, and there ought to be legislation in place to assist those in dire need of immediate care.

If the UK continues to pursue a universal healthcare model, then there ought to be NHS-wide industrial forums to create ministerial, managerial, and union representations. A system that enables constructive bargaining prevents strikes and also avoids headlines about unresolved impasses.

But this assumes a level of collaboration between unions and government that has rarely existed in the UK. Historically, relations have been fraught, marked more by confrontation than compromise. Even during Labour’s periods in power, including the much-touted “beer and sandwiches” era, cooperation has been brief. Conservative governments, meanwhile, have often opted for punitive measures. Any new framework will have to reckon with deep-seated mistrust on both sides.

A reform-minded government should attempt to make striking financially and politically unviable so that it becomes a last resort. Support for strikes between 2022 and 2024 has been on a downward trend as the public becomes increasingly tired of public services becoming gridlocked due to industrial action. Most Britons don’t begrudge the voice of unions, but they reject the disruption that holds essential services in limbo.

A blanket ban on doctors would almost certainly invite legal challenge, both under UK law and international conventions. Legal activists could have a field day with Article 11 of the ECHR and the UN’s Labour Inspection Convention. With ‘Lawfare’ being a significant issue, it seems difficult to see how a Conservative government under Badenoch could successfully implement such a policy.

It is far better to build a system where strikes are superfluous and where workers feel represented and heard. Industrial action shouldn’t be a tactic by public sector workers, but neither should politicians use honest grievances as a political football to grandstand to the electorate. Britain needs not a war with unions, but a treaty.