Consultation outcome

Border security: minimum service levels during strike action

Updated 14 December 2023

About this consultation

The Secretary of State is required to consult before making statutory regulations setting out what relevant services are in scope for border security for the purposes of minimum service levels (MSLs) and also before making statutory regulations setting out the actual border security MSL. The Home Secretary has launched this consultation in order to meet these requirements in respect of border security.

The Strikes (Minimum Service Levels) Act 2023 applies to England, Scotland and Wales. The act does not apply to Northern Ireland. Whilst industrial relations are devolved in Northern Ireland, border security is reserved to the UK Parliament.

The consultation will last for 6 weeks and will end on Thursday 21 September 2023.

This consultation is aimed at:

• employees of Border Force
• members of the public (passengers)
• businesses concerned in passenger travel or the importation or exportation of goods, including port and airport operators
• individuals and organisations with an interest in border security
• members of organisations, for example the armed forces, who have in the past provided cover for border security services during industrial action
• members and officers of relevant trade unions

Next steps

We expect to lay the statutory regulations which will convey the border security MSL in late 2023 or early 2024, with a view to making the MSL available for use at the earliest possible date thereafter.

These timings are subject to the outcome of this consultation and the will of Parliament.

Publication of responses

A paper summarising responses to this consultation will be published on GOV.UK in due course.

The government’s response to this consultation will also be published on GOV.UK.

Extra copies and accessibly

Further paper copies of this consultation can be obtained from this email address and it is also available online.

If you use assistive technology (such as a screen reader) and need a version of this document in a more accessible format, please email:

BorderSecurityMSLConsultation@homeoffice.gov.uk.

Please tell us what format you need. It will help us if you say what assistive technology you use.

Representative groups

Representative groups are asked to give a summary of the people and organisations they represent when they respond.

Confidentiality

Information provided in response to this consultation, including personal information, may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 2018 (DPA), the UK General Data Protection Regulation (GDPR) and the Environmental Information Regulations 2004).

If you want the information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Home Office.

The Home Office will process your personal data in accordance with the DPA and in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.

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 consultation principles.

Foreword

The security of our borders is essential to our security and prosperity as a nation. We depend on skilled professionals to ensure – 24 hours a day, 365 days a year – that our borders are strong and effective. Immigration controls mean we are able to welcome visitors from around the world while protecting our communities from those with no right to be in the UK. Customs checks ensure that goods can flow into and out of our country, supporting the development of international trade, the delivery of critical goods (including food, medicines and medical equipment) and protecting the exchequer – while preventing contraband, including drugs and weapons, from reaching criminal hands. The physical security and integrity of our border is delivered through patrols at our airports and patrols of our seas and waterways. The collection and dissemination of intelligence is key to Border Force’s operations, as is the work of supervisors and managers with responsibility for the employees carrying out these functions. It is a testament to the professionalism of all those working in border security that we have a border that does what we need it to do: facilitating the lawful movement of people and goods while combatting criminality and threats to the UK.

In recognition of the critical roles they play in delivering key security objectives border security professionals in many countries, such as France, Spain and Germany, are banned from striking. That has never been the case in the UK. We are not suggesting that it should be now. However, we do need to acknowledge that in the event of strike action by those charged with securing our borders, there are significant risks to the safety of our communities. Criminals may seek to take advantage of strike action to enter our country or to ship illicit articles through our ports and airports. People smugglers may seek to exploit gaps in our patrol activity to land illegal migrants on our shores. I cannot allow this.

The security of our borders is something we cannot compromise. And that is why we want to introduce new minimum service levels, to ensure that in the event of strike action, we can keep our country safe and secure.

The question now is how we should set minimum service levels for border security. The purpose of this consultation is to seek your views on this important question. In the first instance, we are considering the key border security services delivered by Border Force – which is at the forefront of all our work to secure our border. The consultation therefore asks, in particular, for your views on how we should construct a minimum service level for Border Force. I would however be keen to understand whether you think this is the right way forward – and if not, to hear your suggestions about which other organisations should be included, in order to ensure we continue to protect border security.

I look forward to hearing from you.

Rt Hon Suella Braverman KC MP

Home Secretary

Introduction

About minimum service levels (MSLs)

The introduction of MSLs is designed to enable people to continue to attend their place of work, access education and healthcare, and to protect the UK’s security and infrastructure during strikes, whilst preserving the ability to strike. Where MSLs are applied, there should be a more consistent level of service for the public from strike to strike, as well as minimising the circumstances in which there are no services at all. This will help protect the public and guard against disproportionate risks to lives and livelihoods.

MSLs 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. These 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.

In Portugal, when a strike is declared in key sectors, the organisers are obliged by law to provide a minimum level of service, normally agreed between employers and unions by collective agreements. An arbitration board determines minimum services if they fail to agree. In France, minimum service level legislation has been in place since 2008, with the levels agreed through negotiations with trade unions. Spain allows for public hearings on MSL rules. In Italy the rules are also collectively agreed with unions.

When setting an MSL, the interference with Article 11 of the European Convention on Human Rights, which is the freedom of assembly and association, must be justified. MSLs are justified as they seek to protect the rights and freedoms of others, including the public. This is set out within the memorandum on the European Convention on Human Rights, which accompanied the Strikes (Minimum Service Level) Act at its introduction to Parliament.

The International Labour Organisation, which is an agency of the United Nations, has stated that minimum service levels are justifiable:

• for services the interruption of which would endanger the life, personal safety or health of the whole or part of the population
• for services where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and
• in public services of fundamental importance

Border security and MSLs

Strike action in public services can lead to adverse impacts for users of these services, as well as generating wider social, economic, and environmental impacts on the UK and its economy.

In the border security sector, without a permanent skilled presence at the border, there is a significant risk to the security and economic wellbeing of the UK. Border security professionals in many countries, such as France, Spain and Germany, are banned from striking. We are not proposing a ban, but in order to protect fundamentally important public services, we believe that border services are in scope of what MSLs seek to achieve. Strikes within these services would cause interruption which would endanger public safety, as they are services of fundamental importance.

The Strikes (Minimum Service Levels) Act 2023

The Strikes (Minimum Service Levels) Act 2023 received Royal Assent on 20 July 2023. It creates a framework for delivering MSLs in the event of strike action in key sectors. The sectors are:

• health services
• border security
• transport services
• education services
• fire and rescue services
• decommissioning of nuclear installations and management of radioactive waste and spent fuel

The act creates a number of powers and processes to support the delivery of MSLs.

First, it creates a power for the Secretary of State to make statutory regulations setting out what ‘relevant services’ are in scope for ‘border security’ for the purposes of MSLs.

Second, it creates a further power for the Secretary of State to make statutory regulations setting out what the MSL should be in respect of those relevant border security services.

We envisage that for relevant border security services, the Secretary of State for these purposes would be the Home Secretary.

Third, the act provides that in the event of strike action, an employer would be able to issue a ‘work notice’ to a trade union, identifying the members of staff required to work on a strike day, and the work they are required to do, in order to meet the MSL. Such work notices must not identify more persons than are reasonably necessary for the purpose of providing the levels of service under the MSL Regulations.

Fourth, a union would have to take ‘reasonable steps’ to ensure that their members identified in a work notice complied with a work notice and did not take strike action. A union which failed to take such reasonable steps would lose their protection from tort liability, which means employers could take court action against them. This could lead to a union being required to pay damages or the court could issue an injunction to prevent the strike from taking place. A person identified in a work notice who participated in a strike would lose their automatic protection from unfair dismissal for industrial action – in the same way as individuals who participate in ‘wildcat’ strikes do today.

Proposals

Guide to consultation document

In part 1 of this consultation, we set out considerations in defining essential border services.

In part 2, we set out considerations in defining a border security MSL for Border Force.

In part 3, we invite you to let us know about potential impacts under the Equality Act 2010 or potential impacts on children or vulnerable people.

In part 4, we invite any other comments.

Part 1 – defining essential border security services

We begin by seeking your views about defining essential border security services for the purposes of MSLs. There is a helpful starting point for answering these questions in existing trade union legislation. The Important Public Services (Border Security) Regulations 2017 define ‘border security’ for the purpose of pre-strike ballots conducted under the Trade Union and Labour Relations (Consolidation) Act 1992. In this context, border security means:

(a) the examination by a Border Force officer of persons arriving in or leaving the United Kingdom

(b) the examination by a Border Force officer of goods—

(i) imported to or exported from the United Kingdom, or

(ii) entered for exportation or brought to any place in the United Kingdom for exportation

(c) the patrol by a Border Force officer of the sea and other waters within the seaward limits of the territorial sea adjacent to the United Kingdom

(d) the collection and dissemination of intelligence by a Border Force officer for the purposes of the functions set out in sub-paragraph (a), (b) or (c)

(e) the direction and control by a Border Force officer of the functions set out in sub-paragraph (a), (b), (c) or (d)

Our preferred approach

What services should be in scope for border security MSLs?

If we follow the precedent of the 2017 Regulations, we would begin by identifying these same functions as ‘relevant services’ for the purposes of border security MSLs. We also think it may be prudent to include additional functions, such as enforcing health protocols, including protocols designed to inhibit the transmission of disease, such as contact locator form protocols, and ensuring the physical security of our border controls at ports, airports and the juxtaposed controls in Continental Europe. If we do extend the definition of ‘relevant services’ for the purposes of border security in this way, we may also wish to seek to amend the 2017 Regulations, in order to ensure that the two definitions are aligned.

Which organisations should be in scope for border security MSLs?

A natural starting point for the organisations in scope would be those currently involved in delivering services deemed to form part of a minimum level of service. The 2017 Regulations relate only to relevant functions carried out by Border Force. We think that border security MSLs should likewise apply at the least to Border Force – although we seek your views on this. We also seek your views on whether other organisations should be in scope, if they too carry out relevant border security functions.

During recent strike action by employees of Border Force, cover for Border Force has been provided by other employees of the Civil Service and by members of our Armed Forces. We are very grateful to all those who have provided this cover.

However, we cannot rely on that cover being available in the future. We therefore seek your views on whether you agree with us that border security MSLs should in fact be deliverable solely by the organisations which provide relevant border security services.

Part 2 – defining a border security MSL for Border Force

We turn to seek your views on defining a border security MSL specifically for Border Force. We think key considerations here are determining which services Border Force would provide on a strike day and how to calculate the staffing level required to deliver these services.

About Border Force

Border Force is a law enforcement command within the Home Office. It secures the UK border by carrying out immigration and customs controls for people and goods entering the UK in over 140 ports and airports across the UK and overseas. In addition, and in accordance with the UK’s national and international obligations, it identifies and protects potential victims of Modern Slavery and Human Trafficking and other vulnerabilities at the border. There is a particular focus on protecting children as set out in Section 55 of the Borders, Citizenship and Immigration Act 2009 and pursuing the perpetrators of exploitation.

Border Force works in partnership with key organisations, including Immigration Enforcement, UK Visas and Immigration, His Majesty’s Revenue and Customs, the police, the National Crime Agency, the Armed Forces and private contractors, to deliver a wide range of border activity necessary to ensure the UK has a strong, effective border.

Since 2018, Border Force has dealt with unprecedented numbers of people making dangerous Channel crossings, preventing loss of life in the Channel and ensuring safe processing of people arriving illegally. Border Force has also been crucial in supporting legitimate travel, migration, tourism and trade, activities which contribute to economic prosperity. Border Force transparency data demonstrates the important role Border Force plays. In 2022 Border Force made 224 referrals of potential adult and child victims of modern slavery. Meanwhile, in the 2021/22 reporting year, Border Force protected £578 million of tax revenue through detecting goods where excise duty has not been declared and seized:

• 17,097 kg of cocaine
• 1,117 kg of diamorphine (heroin)
• 19,964 kg of herbal cannabis
• 293 lethal firearms – as well as 5,620 knives and 2,282 other offensive weapons

Recent industrial action by Border Force

Border Force staff can become members of four unions recognised by the Home Office for collective bargaining purposes. The Public and Commercial Services Union (PCS), the Immigration Service Union (ISU) the First Division Association (FDA) and Prospect. The largest of these unions is PCS, which represents members throughout the civil service, including Border Force staff. PCS and ISU are the unions which primarily represent operational Border Force staff. In November 2022, Home Office staff including Border Force voted for a six-month mandate for strike action as part of a PCS union ballot in a Civil Service wide dispute regarding pay, pensions, redundancy terms and job security.

Since that PCS ballot, the union has called on their members in Border Force to take strike action on a number of occasions during December 2022 and then again in February, March and April 2023. National Border Force strikes were held by PCS on 1 February, 15 March and 28 April. Local strikes were held by PCS at six airports (including Heathrow and Gatwick) plus Newhaven port on six days in December 2022. Strike action was also held by PCS at locations on the Short Straits between the UK and Continental Europe on three days in February 2022.

During this recent strike action, we have been able to manage threats to our border security, and to ensure that passengers are not unduly inconvenienced, because cover has been provided to support Border Force by personnel from other parts of the Civil Service and members of our Armed Forces. However, in setting a Border Force MSL, we must recognise that the Home Office cannot rely on that cover being available in the future.

In May 2023, Home Office staff, including Border Force, voted for a further six-month mandate for strike action. This is part of a second PCS union ballot in the ongoing Civil Service-wide dispute.

Our preferred approach

We have tried to enter into negotiations with the trade unions to agree voluntary agreements to deliver a minimum level of service in the event of a strike. Under this option, the Home Office, as the employer for Border Force, would not seek to use any of the powers contained in the Strikes (Minimum Service Levels) Act 2023. However, we were not able to secure the agreement of all unions to enter into voluntary agreements. This option is therefore not feasible, because this model would only be viable if all relevant unions entered into voluntary agreements with the Home Office. This is principally because under the terms of the act, employers must not have regard to whether an employee is a member of a union, or to which union they belong, when drawing up a statutory work notice. This means that as the employer for Border Force, we could not take into account whether an employee was a member of a union with which we have a voluntary agreement. A union could therefore find that despite having a voluntary agreement with the Home Office, their members are still named in a statutory work notice. This would not be tenable. We therefore move to consideration of a statutory MSL.

What services will Border Force provide on a strike day?

MSLs need to be able to mitigate against risk to border security by formalising an appropriate level of staffing during strike action to ensure the border is operable, safe and secure. We need to be clear about the potential consequences of not having the minimum level of staffing we need on a strike day. We are likely to see increased passenger queue times at ports and airports. This may lead to pressures on infrastructure which could have significant health and safety implications, with passengers queuing in corridors or being unable to disembark. We may also see diversions and ports and airports being closed. This would inevitably mean significant adverse impacts on passengers, trade and the economy. We accept that even with a border security MSL, service levels would be lower than on a non-strike day. However, in order to prevent the serious consequences of inadequate staffing, we will ensure that certain minimum standards are met.

In the first instance, we envisage that every port and airport would remain open on a strike day – although we seek to test this idea through this consultation process.

Secondly, we envisage that some activities could be slowed down or stopped. These could include activities such as: recruitment; training; and business-as-usual team meetings. Border Force would likely also seek to cancel or postpone non-urgent meetings with partners and stakeholders. We seek your views on which activities could safely be slowed down or stopped.

Thirdly, we envisage that some activities could not be slowed down or stopped. Such activities could include:

• conducting counter terrorism referrals at the border
• conducting checks to find radiological and nuclear substances and
• conducting mandatory identity and eligibility checks on all arriving passengers into the UK and departing passengers at the juxtaposed controls

We seek your views on which activities should not be slowed down or stopped.

For security reasons, we would not be able to set out publicly which activities had or had not been slowed down or stopped. But we seek your views on which these could be.

What is the staffing level required to deliver these services?

We have analysed recent industrial action by employees of Border Force and identify that on strike days, staffing levels were lower than normal. Staffing levels on strike days varied by location. However, with a mixture of non-striking staff, staff from other parts of the Civil Service and members of the Armed Forces, Border Force was able to deploy personnel equating to approximately 70-75% of rostered staff on most strike days.

We therefore have a baseline staffing level to work from in establishing MSLs. However, we will need to undertake further analysis in several areas to assess more precise requirements.

The first is the location of the strike. Each location will require a minimum number of staff to work on a strike day, irrespective of the number of anticipated passengers or goods movements, in order to ensure that that location can be operated safely and in compliance with relevant legislation.

The second is the timing of the strike. Action that takes place at peak times of the year, such as during the school holidays, will have more of an impact than strikes at non-peak times. We would need more people to provide a minimum service if strike action took place at peak times.

The third is the duration of the strike. There may be some services which can be stopped or slowed down for a short period of time. However, there may be other activities which cannot be suspended at all. We may need to adjust our staffing levels depending on how long strike action goes on, in order to ensure that we do not create dangerous bottlenecks.

MSLs will need to be set in such a way as to ensure that they can be delivered in all strike scenarios without the need for support from the armed forces, irrespective of the location, timing, or duration of a strike.

What could be the benefits of a border security MSL?

We have published an economic impact assessment to accompany this consultation document which examines social cost and benefits of baseline staffing levels for Border Force set at 50%, 60% and 70% of the rostered level (these are levels that recent strike experience suggests may be needed depending on the types of services that cease or are reduced in time of strike).

Within the impact assessment, monetised costs are familiarisation and legal costs. Monetised benefits are an increase in productive hours worked by Border Force on a strike day as a result of a statutory MSL. The analysis estimates that under central scenarios for future strike turnout and frequency, the policy would deliver net present social value benefits over the ten-year appraisal period of £4.7m under a 50% MSL, £7.2 million in the case of a 60% MSL, and £9.8 million in the case of a 70% MSL.

There are, however, additional likely costs and benefits of the proposal which have not been possible to model at this time, but which will be further considered as part of a final stage impact assessment. In terms of non-monetised benefits, the MSL will likely reduce the public cost of Border Force arranging for contingency resource to bolster or secure their business continuity plan. This may lead to direct cost savings, such as the saving of overtime, as well as opportunity cost savings as Border Force resources which would have been required to undertake planning and training for contingency staff can instead be repurposed to support business as usual activities.

An MSL will also lead to further benefits in-terms of removing the need for military assistance during strike action, which has on occasion been provided to support Border Force. This assistance has a financial and economic cost on society (as it takes military personnel away from their own duties), and so the reduction in this assistance has benefits. This cost is highly uncertain as it will vary significantly depending on the type of strike action that occurs.

Wider non-monetised benefits include improved economic output: This is because the provision of MSLs for border security should result in a quicker and more dependable border for businesses and the public (including tourists) to move through during periods of industrial action, as well as the prevention of harmful goods entering the UK. This is likely to result in economic and social benefits beyond the direct value provided by Border Force. These could include increased international trade and investment as businesses have greater confidence in their ability to move goods without disruption across the UK border. It may also improve the reputation of the UK as a place to visit, which may lead to economic benefits to the tourism sector.

We provide a more detailed analysis of potential benefits in our economic impact assessment.

What could be the disbenefits of a border security MSL?

There may be costs to Border Force of operationalising and enforcing work notices. These could include administration and litigation costs. There could also be linked costs to trade unions and employees.

There is also a potential increase in strike action prior to MSLs being introduced, as unions may seek to cause disruption which is not mitigated by an MSL before they are implemented, in order to maximise their leverage. This may be mitigated by the costs to unions and their members, principally loss of pay, of taking industrial action. A further consequence of this policy could be an increase in staff taking action short of a strike which is not prohibited or limited by legislation. There may also be a perception of a reduced benefit of being in a union. This could be because if any of the proposed options were to change the balance between unions and employers, this may reduce the value that workers perceive they receive by being part of a union.

We provide a more detailed analysis of potential disbenefits in our economic impact assessment.

Part 3 – potential equalities impacts, potential impacts on children or vulnerable people

We have published an equality impact assessment alongside this consultation document. We do not identify any negative equalities impacts or potential impacts on children or vulnerable people as a result of the introduction of border security MSLs.

We do however identify the potential for positive impacts on vulnerable people, including people who may have a vulnerability linked to a protected characteristic under the Equality Act 2010. For example, there may be a positive impact on disabled people, some of whom may find that on strike days, a border security MSL protects their ability to travel.

Part 4 – any other comments

We welcome any other comments you may have about a border security MSL.

How to respond

Please fill in the online survey or download the form and send your response to:

BorderSecurityMSLConsultation@homeoffice.gov.uk

Please send your response by Thursday 21 September 2023.

Additional ways to respond

Home Office officials will be hosting on-line drop-in sessions to discuss this consultation. If you would like to join a session, please email us at:

BorderSecurityMSLConsultation@homeoffice.gov.uk.

Enquiries, complaints or comments

Please send enquiries, complaints or comments to: BorderSecurityMSLConsultation@homeoffice.gov.uk.

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