Consultation outcome

Government response to consultation on border security: minimum service levels during strike action

Updated 14 December 2023

Introduction

This document is the post-consultation report for the consultation on ‘Border security – minimum service levels during strike action’, which took place in the summer of 2023.

It will cover:

• the background to the consultation
• a summary of the consultation responses
• how the responses have influenced policy development

Consultation principles

The principles that government departments and other public bodies should adopt for engaging stakeholders when developing policy and legislation are set out in the Cabinet Office Consultation Principles 2018.

Foreword

The government is focused on making the hard but necessary long-term decisions to deliver the change that the country needs to put the UK on the right path for the future. 

The ability for staff to take strike action is an integral part of industrial relations. However, the security of our borders is something we cannot compromise. We must also consider the disruption caused to – and the costs incurred by – passengers and businesses, who expect essential services they pay for to be there when they need them.

We must also consider the impact on those called in to cover for staff who are going on strike, including the impact on members of our armed forces, who have commendably stepped up to fill vital roles during recent industrial action. It would be irresponsible to rely on such short-term solutions to protect our national security.

Minimum service levels exist in a range of countries within the EU, and globally, as a legitimate mechanism to balance the ability to strike with the needs of the public. Outright bans on striking are usually in place where border security is provided by the police or by members of the armed forces. The exact picture is complex and differs from country to country. Minimum service levels are generally negotiated between employers and unions and can also cover issues like the notice period that has to be given before industrial action takes place.

These new border security minimum service levels will ensure a fair balance between delivering the best possible service to the travelling public, maintaining a secure border and the ability of workers to strike. Unions will be required to work with the government to make sure minimum border security services are met on strike days, to keep our country safe.

Background

The Strikes (Minimum Service Levels) Act 2023 (‘the act’) introduces new powers for employers to require certain employees to work on strike days to deliver Minimum Service Levels (MSLs). These powers will be available to employers across a range of sectors, including health, education, transport, fire and rescue services and border security. They will be available to the Home Office in respect of parts of the Department which provide border security services, most notably Border Force and HM Passport Office.

The Secretary of State has powers under the act to make regulations setting out which services must be provided and what the minimum level of those services should be. However, before making such regulations, the Secretary of State is required to consult such persons as the Secretary of State considers appropriate.

The consultation on border security services opened with the publication of the paper Border security: minimum service levels during strike action on 11 August 2023. The consultation invited comments on defining essential border security services and defining the minimum service level. It also asked for views on how a proposed MSL might impact on individuals with a protected characteristic under the Equality Act 2010, or children or other vulnerable people.

The consultation closed on 21 September 2023. This report summarises the responses, as well as how the feedback influenced policy development.

This response is published alongside the regulations which will convey the border security MSL and updated economic and equality impact assessments.

Summary of responses

The online consultation attracted 69 responses from a range of respondents, including employees of Border Force, industry partners and members of the public.

A further nine written responses were received from organisations such as trade unions, port operators and airlines. We also ran a series of engagement events with interested parties. The Home Office is grateful to everyone who took part.

Defining essential border security services

We asked for views on defining essential border security services and which services should be in scope for a border security MSL. As a starting point, we had already identified what we believed could constitute border security services as set out in existing trade union legislation, that is, the Important Public Services (Border Security) Regulations 2017 (‘the 2017 regulations’), which are made under the Trade Union and Labour Relations (Consolidation) Act 1992.

The majority of respondents thought that the following services from the 2017 Regulations should be included in the border security MSL: the examination of persons arriving in or leaving the UK; the examination of goods imported to or exported from the UK; the examination of goods entered for exportation or brought to any place in the UK for exportation; and the patrol of the sea and other waters within the seaward limits of the territorial sea adjacent to the UK. The majority also agreed with our suggestion that we should build on the 2017 Regulations by including the patrol of the UK’s physical borders.

However, the majority disagreed with our proposals to include the following services set out in the 2017 regulations: the collection and dissemination of intelligence; and the direction and control of those engaged in providing these services. The majority also disagreed with our proposal to build on the 2017 regulations by including the enforcement of health-related protocols, including protocols designed to inhibit the transmission of disease, such as passenger locator forms.

We agree with the majority of respondents that we should include services set out in the 2017 protocols. However, we think we should include the enforcement of health-related protocols, as we consider that this would be a critical border function in the event of a health emergency. This will be captured as part of the ‘examination of persons arriving in or leaving the UK’ service set out above. We also think we should include intelligence services and control and direction services, as envisaged in the 2017 regulations, as without these, we do not think it would be possible to properly maintain border security. Finally, following further consideration of the issues, we consider that we should include such passport services as may be necessary for national security reasons on a strike day, such as the collection and dissemination of intelligence.

We will give consideration to updating the 2017 regulations, to align with this definition, when Parliamentary time allows.

Organisations in scope for border security MSLs

The 2017 regulations relate only to border security functions which are carried out by Border Force. We invited comments on our proposal that Border Force should likewise be in scope for border security MSLs. We invited respondents to identify any additional organisations they think should be in scope and their reasons for this.

The majority responded that only Border Force should be included. Of those who suggested additional organisations, the responses were varied, from HM Revenue and Customs, the Department for Environment, Food and Rural Affairs to the Animal Plant Health Agency.

We agree that the border security MSL should apply to Border Force. As we think it is important to include passport services for national security reasons, we will also include HM Passport Office. But we do not think any other organisations should be in scope.

Consequently, the MSL regulations will apply to employees of Border Force and HM Passport Office (where passport services are required for the purposes of national security). As both of these organisations are part of the Home Office, the regulations are of necessity drafted so as to apply to people providing relevant border security services who are in Crown employment under or for the purposes of the Home Office.

The territorial extent of the 2023 act is England, Wales and Scotland, and so the territorial extent of the new regulations will also be England, Wales and Scotland. This means that the policy will not apply in Northern Ireland.

Reliance upon cover from outside Border Force

We proposed that on a strike day, Border Force should be able to deliver border security services without relying on cover from other parts of the Civil Service or the armed forces.

The majority of respondents agreed.

Following consideration, we have decided to implement this proposal. As and when we use the border security MSL, we will only utilise staff providing relevant border security services who are in Crown employment under or for the purposes of the Home Office.

Provision of essential services (‘business as usual’, slow or stop)

We asked for views on defining MSLs for Border Force and to what extent certain activities could be stopped or slowed down on a strike day.

The majority of respondents who answered this question considered that all activities should be suspended or slowed down on a strike day. Some suggested that general administrative activities and training could be stopped or scaled back.

We have carefully considered all of the responses we received, but for security reasons, we cannot comment further on this.

We remain committed to ensuring that we are able to deliver effective border security services on a strike day. So, for this reason, the regulations will set out that border security services should be provided at a level that means that they are no less effective than if a strike were not taking place.  This will be determined on a strike-by-strike basis, with recent experience of industrial action seeing staffing levels of around 70-75% being delivered by Border Force.

Keeping all ports and airports open

We invited comments on our proposal that every port and airport should remain open on a strike day.

The majority of respondents disagreed with this, with some free text comments that keeping all ports and airports open would undermine the effectiveness of strike action.  

We acknowledge the ability of employees to strike, and employees will continue to have this ability. However, in order to strike the balance between respecting the right to strike and ensuring the security of the border, we consider that all ports and airports should remain open on a strike day.

Staffing level baseline and adjustments

We asked for views on how Border Force could determine staffing levels to provide border security services during strikes. Using personnel data taken during previous strike action, we proposed using 70-75% of rostered staffing as a baseline, but recommending flexibility depending on the location, timing, and duration of any strike.

The majority of respondents disagreed with our suggestions that the baseline could be adjusted depending on these factors, with some free text comments indicating that disagreement was less about these factors in themselves, and more about the policy in general.

Following consideration, we have decided that in the event of a strike, it should be open to the Home Office to consider these and any other relevant factors when making staffing decisions to deliver the required minimum level of service, in accordance with the provisions in the 2023 Act regarding issuing work notices.

Compensatory measures

We recognise that restricting the ability to strike, even in the way we are proposing, means that we need to ensure that compensatory measures are in place.

The government is therefore committing that it will agree to engage in conciliation for national disputes in relation to border security, where the relevant unions agree this would be helpful. This is a significant and appropriate commitment that balances the ability of workers to strike with the safeguarding of our borders.

Impact assessments

Economic impact assessment

An initial economic impact assessment was published at the same time as the consultation paper.

An updated impact assessment has now been published.

Equality impact assessment and impact on vulnerable people

We have considered the potential impact of these changes on two cohorts: Border Force employees and the travelling public.

An initial equality impact assessment was published at the same time as the consultation paper.

An updated impact assessment has now been published.

The initial equality impact assessment identified two sets of potential impacts.

With regards to Border Force employees, we hold management information about the sex and age of Border Force employees, which shows that c. 60% are male and that over 30% of Border Force’s total workforce are aged between 50-59. We do not have data of comparable quality about other protected characteristics. Our assessment is that as the policy will apply to Border Force as a whole, there is no anticipated direct discrimination against any of the nine protected characteristics. We judge that any possible indirect disadvantage on males or those aged 50-59 resulting from this policy would be proportionate and justified to ensure the border remains secure in the event of strike action. Any possibility of indirect impact will not, in our view, amount to indirect discrimination.

Regarding the travelling public, again, the policy will apply to this sector of the population as a whole. There is no anticipated direct or indirect discrimination, however, the policy may have a positive impact on disabled and vulnerable people. This is because disabled people may find it easier to travel on a strike day if MSLs are in place. MSLs will ensure appropriate safeguards in place to support vulnerable people. 

The updated equality impact assessment identifies further potential impacts in the light of the consultation. Consultation responses broadly fall into two categories: responses about potential impacts on the workforce; and responses about potential impacts on the travelling public. The workforce in question is to a greater extent Border Force, albeit that there will be also a lesser impact on HM Passport Office.

Some consultation respondents said that being required to work on a strike day could have a negative impact on employees who have protected characteristics. For example, it was said that there could be a negative impact on disabled employees or on employees who wish to attend religious ceremonies on a strike day. It was also said that there could be a negative impact on employees with caring responsibilities for children, older people or disabled people. Some respondents also said that there could be a negative impact on women in the workforce because women were said to be more likely to be carers than men, and more likely to be part-time workers. However, the impact of these considerations would be no more pronounced on a strike day than it would have been on a normal working day, and would not arise from the introduction of the policy itself.

Some consultation respondents said that the policy could also have negative impacts on the travelling public. It was said that on a strike day, there may not be sufficient staff to provide the appropriate level of support to travellers with a protected characteristic or who are vulnerable. This could mean that disabled travellers or women who are pregnant or who have very young children are not appropriately supported. It could also mean that there are not enough trained staff to provide appropriate support where there are safeguarding concerns or concerns that someone may be a victim of modern slavery. However, the introduction of minimum service levels should mean that there are additional staff available to provide appropriate support to these cohorts.

In response, we will ensure that a further equality impact assessment is undertaken as and when the policy is operationalised. We will plan to identify, mitigate and to monitor potential impacts on the workforce. We will also consider how to use MSLs to ensure that appropriate levels of trained staff are in place on a strike day to mitigate potential risks to the travelling public. This should ensure that on a strike day, there is a positive impact on the cohorts of travellers identified by consultation respondents, who benefit from there being a minimum level of service in place.

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