The Strikes (Minimum Service Levels) Act 2023: A Post-Mortem

Abstract The Strikes (Minimum Service Levels) Act 2023 marks a paradigmatic case of statutory failure: never enforced on the ground and repealed almost immediately. This article seeks to deliver the Act’s funeral oration by conducting a post-mortem that proceeds in three sections (tragedy, hubris, and nemesis). The first posits the Act’s birth as a profound tragedy of voluntarism in UK industrial action law. For all its persistent refusal to recognise a positive right to strike, out of fear that the latter would invite drastic legal restrictions (such as minimum services) as a necessary concessionary trade-off, it succumbed to such restrictions with a negative, immunity-type of protection. However, in its operation, the Act proved a ‘neoliberal hubris’ (a step ‘too far’ for the neoliberal drift of the restriction policy) as it suffered a dual failure (non-enforcement on the ground and almost immediate repeal). Towards accounting for this failure, the second section offers a contestation-based account, as an agency-based alternative to deterministic accounts (which treat the Act’s failure as a predetermined outcome of its unworkable design or its excessive departure from voluntarism). The analysis traces a holistic contestation against the Act at different levels (framing and material) and arenas (jurisprudential, industrial relations and parliamentary) along with critically appraising their effectiveness in bringing about the Act’s demise and deriving broader reflections. The final section considers the prospect of hubris being followed by a ‘neoliberal nemesis’, involving a transformative challenge to the pervasive hold of neoliberal common sense in UK industrial action law. For this evaluation, it critically assesses the potential of the Employment Rights Act 2025 to deliver this nemesis, identifying both substantial advances and severe limitations. It also argues, more broadly, that the Strikes Act 2023 experience strengthens the normative case for revisiting the legal infrastructure of industrial action in favour of recognising a positive right to strike. The section concludes by finding nemesis to be currently suspended and warning of the dangers of another missed window of opportunity for UK industrial action law.