Strikes (Minimum Service Levels) Bill
Monday 16th January 2023
(1 year, 3 months ago)
Commons ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
21:58 - The House having divided: - Ayes: 49 / Noes: 482 - Question accordingly negatived.
22:18 - The House divided: - Ayes: 309 / Noes: 249 - Question accordingly agreed to.
22:31 - The House divided: - Ayes: 306 / Noes: 252 - Question accordingly agreed to.
22:43 - The House divided: - Ayes: 305 / Noes: 49 - Question accordingly agreed to.
Madam Deputy Speaker (Dame Rosie Winterton)
I must inform the House that the reasoned amendments have not been selected.
The Secretary of State for Business, Energy and Industrial Strategy (Grant Shapps)
I beg to move, That the Bill be now read a Second time.
The Government firmly believe that the ability to strike is an important element of industrial relations in the UK. That ability is rightly protected by law, and we understand that an element of disruption is likely with any strike. However, we also need to maintain a reasonable balance between the ability of workers to strike and the rights of the public, who work hard and expect the essential services that they pay for to be there when they need them. We must be able to have confidence that when strikes occur, people’s lives and livelihoods are not put at undue risk. As has become clear from recent industrial action, that is not always the case, so we need a safety net in place to ensure that the public do not become collateral damage.
Steve McCabe (Birmingham, Selly Oak) (Lab)
Will the Secretary of State give way?
Grant Shapps
I will make a little bit of progress first. Right now, up and down the country, households are struggling with the repercussions of high inflation caused by covid and Putin’s invasion of Ukraine. The UK is not alone in feeling the pressure, which is also felt by many other countries, particularly within the European Union. Recently, the Prime Minister outlined the Government’s priorities: to build a better, more secure and more prosperous future, one that this country and our workforce—public or private—fully deserve. By halving inflation, growing the economy and getting debt down, we can ensure that our vital public services are fit. As the Government get on with those priorities, we also have a duty to protect access to vital public services which, let us not forget, the public are paying for through taxation.
Jim Shannon (Strangford) (DUP)
Secretary of State, I believe in the fundamental right of a worker to withdraw their labour, whether that happens to be from an employer or against the Government. I understand that at this time many people feel the same, and for those who are toying with this idea, let me say that the ambulance service, nurses and doctors, for example, have been able to ensure that there was an emergency service. Do the Government really believe that withdrawing the right of a worker to withdraw their labour is what they are about?
Grant Shapps
I always think that people think very carefully about this issue, and they are right to do so. We are operating within the context of a crisis in global growth. The International Monetary Fund states that a third of the world will be in recession this year, caused by Putin’s illegal invasion of Ukraine—[Interruption.] I am surprised to hear Labour Members yawning and moaning. Putin invaded Ukraine—[Interruption.] What Labour Members do not seem to realise is that what then happened to energy prices caused a crisis that has put up inflation throughout the western world.
Grant Shapps
I will just make this point because I think Labour Members may find it useful. Those prices going up throughout the rest of the world, including here, has also pushed up wage claims. But I do not think we should get into a 1970s spiral, where we end up with higher wage claims and higher wage settlements, with higher wage claims and inflation continuing for ever. That is a cycle we must break. Clearly, if we were to meet all the inflation busting demands of the unions, that would make life harder not only for some but for every single family in this country. That is why we cannot do that. The Government are therefore absolutely clear: we want constructive dialogue with the unions, and the public have had enough of the constant, most unwelcome, and frankly dangerous, disruptions to their lives.
Richard Burgon (Leeds East) (Lab)
I thank the Secretary of State for giving way. Last week, Human Rights Watch warned that
“fundamental and hard-won rights are being systematically dismantled”
in the UK. Is this anti-strike legislation part of the danger that Human Rights Watch is warning about?
Grant Shapps
The International Labour Organisation itself says—I will cover this shortly in my speech—that it is perfectly proper to have a balance between minimum service levels and people’s right to strike. I support the ILO in saying that; I absolutely agree it is right. I note, however, that the hon. Gentleman did not mention the fact that he has received £94,000-plus from unions. Now, I have no issue with him receiving that money from unions—I do not think that we should have taxpayer-funded political parties in this House—but I think it is only right that when Opposition Members stand up, they reflect what is on their records, which is that they have received a lot of money from unions and now seek to represent them in the debate.
Millions of people who rely on essential transport to get to work or to family commitments now every day have the extra stress of worrying about making alternative, sometimes costly, arrangements because of the forever strikes. There are those who, at the most terrifying time of their lives—perhaps with a poorly loved one—do not know whether an ambulance will arrive, because the unions have refused to provide a national safety net. [Interruption.] I hear the barracking and understand that Opposition Members do not want to hear what people throughout the country are feeling, but it is a fact that when strikes are on and ambulances are unable to find out from their unions whether they will operate, that is an additional concern for members of the public—including Opposition Members’ constituents, whom they seem rather not to care about in this case. I am surprised about that.
Several hon. Members rose—
Grant Shapps
I will make a little progress.
Then there are children, who are desperately trying to catch up on the lost learning—
Karl Turner (Kingston upon Hull East) (Lab)
Will the Secretary of State give way?
Grant Shapps
I will give way shortly; I will make a little bit of progress.
Those children are desperately trying to catch up on learning that they missed throughout covid, and again they are unsure about whether they will be able to get to school. There are also the businesses throughout the land whose sales and productivity are suffering. They are terrified that, at a time of high inflation, their livelihoods are at risk along with those of their employees.
John Redwood (Wokingham) (Con)
Could the Secretary of State give us a little more indication of how he will consult on and agree minimum standards in the railway industry?
Grant Shapps
I will set out in a bit more detail the way in which the legislation will work in a while, but, briefly speaking, secondary legislation by regulation will be used in each individual sector to come to the right balance. I will explain that in more detail, if my right hon. Friend is patient.
Several hon. Members rose—
Grant Shapps
I will give way in just a moment. I have already taken more interventions from Opposition Members than from Government Members.
I think it is true to say that there comes a time when we cannot let such a situation continue. That is why we need minimum safety and service levels to keep livelihoods and lives safe. It is frankly irresponsible, and even surprising, for the Opposition to suggest otherwise.
Karl Turner
I am grateful to the Secretary of State for giving way. He wants to talk about minimum safety levels. The reality is this: after 12 years of a Tory Government, minimum safety no longer exists in our NHS. A paramedic contacted me directly at the weekend to say that he had begun his shift at 7 am expecting to sign off later that evening, and spent the entirety of that shift sitting outside Hull Royal Infirmary because there was no bed available for his patient, whose life he had saved. There is not any safety in the NHS as a result of the Tory Government. The Secretary of State needs to acknowledge that before we move on to discuss anything else.
Grant Shapps
I am surprised by how the hon. Gentleman, who normally speaks a lot of sense in the House, put his point across. Yes, of course it is the case that the NHS has been under unbelievable stress, not least because of two years of covid and all the backlog that has been created. It is worth reminding Labour Members that, had they had their way, we would have been in lockdown for a heck of a lot longer and those cases would have been even worse. I do not follow the logic of his argument. He seems to be arguing that just because there are times of danger, we ought, by design, to enable a system that prevents unions in the ambulance service from telling the NHS when ambulances will be there and what the minimum service would be. That is the issue that we seek to address today.
Alan Brown (Kilmarnock and Loudoun) (SNP)
If this is all about safety, why is the word “safety” not used once in the Bill or its explanatory notes?
Grant Shapps
It is fairly obvious to say that a minimum service level in railways, for example, is about people’s livelihoods rather than safety, but that the NHS and the ambulance service not agreeing nationally is a minimum safety level issue. I would have thought that was pretty straightforward.
Several hon. Members rose—
Grant Shapps
I will just make a little bit of progress.
The Bill will ensure that we protect the ability of workers to take industrial action, but that we also protect the public from disproportionate disruption to their daily lives and that, to put it simply, one person’s right to strike does not infringe on someone else’s right to life and limb.
Several hon. Members rose—
Grant Shapps
There is an array of riches. I will give way to the hon. Member for York Central (Rachael Maskell).
Rachael Maskell (York Central) (Lab/Co-op)
I refer the House to my entry in the Register of Members’ Financial Interests. The Secretary of State has never negotiated a minimum service agreement in the NHS. I have. The Secretary of State is completely fabricating what happens. It is the trade unions who work with the staff and the employers to put a safe agreement—
Madam Deputy Speaker (Dame Rosie Winterton)
Order. I am afraid I will have to ask the hon. Lady to withdraw her remark about fabricating. She will do that, I know. I am sure that is not what she meant to say and will indicate that that is not what she meant to say—yes?
Rachael Maskell
Thank you, Madam Deputy Speaker, for your guidance. I will rephrase what I was saying. The reality is that safe agreements are negotiated between the staff and the employers. That happens on the ground; the process and the outcomes protect the NHS, because that is what staff want to do. Will the Secretary of State ensure that he reflects the truth of what happens in the NHS?
Grant Shapps
I would just say to the hon. Lady, who I know has received money from GMB, the National Union of Rail, Maritime and Transport Workers, Unite the union, CLP among others—nothing wrong with that; I am just putting it on the record—that she is wrong factually about the way the last two strikes, last week and in December, occurred.
Grant Shapps
I am actually answering the hon. Gentleman’s colleague’s point. One at a time.
The way that ambulance strike worked was that the NHS was unable to find out in advance from the ambulance unions where and when, nationwide, cover would be provided. It is the NHS that said that, not the Government. As a result, the NHS has not been able to put the appropriate level of cover in place in advance. If by chance we are wrong about that, there is a safety mechanism in the Bill for that. Although we are taking primary powers, should Parliament so decide, we have said we do not want to use them if voluntary arrangements can be made. I refer Opposition Members to the voluntary arrangements—
Several hon. Members rose—
Grant Shapps
Let me finish the first point and move on with the speech.
I refer Opposition Members to the voluntary arrangements that were successfully made with the Royal College of Nursing, which did provide a national guarantee. In that case, it would not be necessary to put the measures in place.
Several hon. Members rose—
Grant Shapps
I hope the House will appreciate that there are a lot of people who want to contribute. I want to give people the opportunity to do that in their own speeches. [Interruption.] If Members do not mind, I will turn to the detail of the Bill.
The Bill establishes a legal framework to implement minimum safety and service levels during periods of strike action. It will achieve that by amending existing legislation, the Trade Union and Labour Relations Concili —[Hon. Members: “Consolidation”] Thank you folks. The Trade Union and Labour Relations (Consolidation) Act 1992. I was trying get the word “conciliatory” in there for Opposition Members. The legislation will allow regulations to be made to ensure that specified services cannot shut down completely when workers strike. That is to maintain crucial and, in many cases, life-saving services. The relevant sectors specified in the proposed legislation are: health services; fire and rescue services; education services; transport services; decommissioning of nuclear installations and management of radioactive waste and spent fuel; and border security.
Joanna Cherry (Edinburgh South West) (SNP)
Can the Secretary of State help me with this? The human rights memorandum that accompanied the Transport Strikes (Minimum Service Levels) Bill last October stated specifically that the Government’s legal advice was that it is not justifiable or necessary in a democratic society to have such restrictions in emergency and patient care services, in fire and rescue, or in education—only in transport. That does not appear in the human rights memorandum that accompanies this Bill. Has the Government’s legal advice changed or have they just changed their mind for reasons of political convenience?
Grant Shapps
The hon. and learned Lady must surely have noticed that we have subsequently had disruption in the NHS, including in the ambulance service. What has happened in that disruption is that although the nurses have very sensibly provided a national level of safe service, unfortunately the same has not happened in the ambulance service. That is why this legislation is required in other areas at this time.
Grant Shapps
I have given way once to the hon. and learned Member for Edinburgh South West (Joanna Cherry), so I give way to my hon. Friend the Member for Gloucester (Richard Graham).
Richard Graham
My right hon. Friend is under a constant onslaught of noise from Opposition Members, who show terrific support for those in the unions in their constituencies and for those in the unions funding their constituency offices, but who seem to forget the interests of all our constituents, which are in the minimum service level agreements that my right hon. Friend is proposing. Ultimately, what people in our constituencies need to know, whether or not we know them, is that in those six sectors a minimum service will be provided regardless of the right of people in the sector to hold back their labour on a pay negotiation or for any other reason. [Interruption.] That is a reasonable proposition, and we should be heard. [Hon. Members: “Speech!”]
Madam Deputy Speaker (Dame Rosie Winterton)
Order. Before the Secretary of State answers the hon. Gentleman, I remind the House that it is important that we use moderation in our language and that we do not impugn the motives of others. That is not how we want the debate to continue. It is an important subject, so let us try to introduce moderation into our discussion.
Grant Shapps
My hon. Friend the Member for Gloucester is absolutely right about the reason for requiring minimum standards.
Grant Shapps
I will in a moment, if I can make a little progress.
Using the powers proposed in the Bill, regulations will set out the specific services within each sector in which a minimum level of service will be applied; they will also set out the levels themselves. Those regulations will be tailored to each relevant service, taking account of the different risks to public safety or the impacts on daily life and on the economy. The Bill is clear, however, that such regulations may be made only after appropriate consultation and the approval of both Houses. Of course, the Government may choose not to use the regulation-making powers in the Bill if adequate voluntary agreements, where necessary, are already in place between employers, the relevant sectors and the relevant unions.
Amy Callaghan
I thank the Secretary of State for acknowledging my presence in the Chamber after so many attempts to intervene. Will he now pass comment on the fact that life-and-limb cover already exists in legislation and that the true purpose of this shameful Bill is simply to erode workers’ rights?
Grant Shapps
I simply do not accept that point. Although it is true that life-and-limb measures exist, we have seen through the many months of rail closures and the strikes that took place last week and in December that unfortunately minimum service levels in one case, and actually minimum safety levels in another, have simply not been available. I know that Opposition Members do not want to accept this fundamental point, but their constituents’ lives are being put at risk by the NHS’s inability to put the correct cover in place with sufficient notice. They seem to imagine that the Army will just be there at no notice and with no ability to organise which areas of the country it needs to be in. That, I am afraid, is not a practical way to run the—[Interruption.]
Madam Deputy Speaker
Order. I cannot hear the answer that the Secretary of State is giving to the question. There is no point in just shouting when he is actually answering the question.
Grant Shapps
I suppose the fundamental point is that we hope very much that, in many cases, we will not need to use the powers conferred by the legislation, but we have seen that that will not always be possible.
Sir Chris Bryant
I am a member of the GMB. I happen not to have received any money from the GMB, although I would be proud to do so—certainly a lot prouder that I would be of receiving £2.5 million from Lubov Chernukhin. Can the Secretary of State confirm that this legislation cannot possibly be used to sort out the present winter of discontent? If anything, it will make it far more difficult to secure a resolution of any of the individual strikes, and therefore it is just political posturing.
Grant Shapps
I think the GMB will have heard the hon. Gentleman’s pitch for some money. If he gets that money, it will join the £120 million that the unions have supplied to the Labour party since 2010.
I make this point only because it is relevant to today’s debate. We must be here to represent our constituents, and our constituents know from paying attention to the recent strikes that when the Royal College of Nursing worked with the NHS, it was able to provide timely assurances at a national level to ensure that the most critical services—including chemotherapy, critical care, paediatric and A&E—were not affected, which shows that even when parties disagree, they can do so in a mature manner. Unfortunately, however, that is not always the case.
During recent strike action by the ambulance service—this has been referred to a couple of times, and I want to read it out because it is written down—the NHS has not been reassured by the relevant union that it can rely on the current system of voluntary local derogation, which I think is what the hon. Member for York Central was talking about earlier. It could not rely on those arrangements to ensure that patient and public services were provided. Last week, and in December, arrangements were being disputed right up to the wire—right up to the last minute—which created uncertainty and left officials with little time to organise contingency measures such as military support. That is the situation that we cannot, in all conscience, allow to continue.
Charlotte Nichols (Warrington North) (Lab)
I declare that I am a proud member of a trade union, and was a trade union officer for a number of years before coming here. In fact, I have probably been part of 1,000 or so pay-and-conditions negotiations, all of which were resolved, with employer and employees all perfectly happy with the outcome. That is something that the Secretary of State has been unable to do, whether in relation to the railway or much more widely, which is why we are having this debate. Can he accept that he has failed, and it is time to get the trade unionists into the room and to put this legislation in the bin, where it belongs?
Grant Shapps
Let me say this, in fairness to the hon. Lady. It is the case that the employers and the unions, and more recently Ministers as well, have been meeting, and it is also the case that even when there have been ministerial meetings—including in Scotland and Labour Wales—the disputes have continued. So we clearly cannot continue to rely on voluntary arrangements to ensure the safety of the people we represent. After all, strokes and heart attacks do not respect boundaries such as trust borders. I am intrigued to know what Labour Members would say to their constituents, perhaps grieving constituents who have lost loved ones because of some sort of postcode lottery.
Saqib Bhatti (Meriden) (Con)
Last week, during my weekly surgery, a constituent asked me why the Labour party was too scared to ask its trade union colleagues to come to the table and negotiate a peaceful resolution—[Interruption.]
Madam Deputy Speaker (Dame Rosie Winterton)
Order. Members must not shout other Members down.
Saqib Bhatti
I could not figure out why Labour was scared to encourage trade unionists to come to the table. Why does the Secretary of State think Labour is so scared of securing a peaceful resolution of the strikes?
Grant Shapps
I think there are 120 million very good answers to that question. We have an opportunity to keep people, their families and their jobs safe during periods of disruption, and that is what we intend to do.
Several hon. Members rose—
Grant Shapps
I will give way in a moment, but I want to make a little progress first.
The Bill and subsequent regulations are designed to enable employers to specify the workers required to meet minimum safety and service levels during strikes within relevant sectors. This will be done through work notices.
Nadia Whittome (Nottingham East) (Lab)
Will the Secretary of State give way?
Grant Shapps
As I have said, I will in a moment, but I want to make some progress.
Should a union notify an employer of a strike in accordance with the existing normal rules, the Bill will allow the employer to issue a work notice to the union specifying the workers needed to work during a strike to secure the minimum level of safety and service. Employers will be required to consult the union on the number of workers to be identified in the work notice and the work to be undertaken, and have regard to the union’s views before issuing that work notice.
Dawn Butler (Brent Central) (Lab)
Members on the Government Benches seem to think that none of those who are striking lives in their constituencies, which I find quite strange. Will the Minister confirm that, once his words have been scrutinised in this Chamber, if any are found to be misleading or incorrect, he will return to the Chamber and correct the record as soon as possible—preferably by the end of the week?
Grant Shapps
I am sure that the normal parliamentary rules apply, so I would never stand here and seek to do such a thing. In the interests of transparency, I will mention the £11,100 that the hon. Member has received from the CLP union in this House—[Interruption.] Sorry, that the CLP received from Unite the union, I should say to satisfy Opposition Members.
Officially, the work notice—[Interruption.] If Opposition Members would let me just explain how this operates—
Madam Deputy Speaker
Order. It really is important that we hear what the Secretary of State has to say. It is also important that any reference to donations or payments is accurate.
Grant Shapps
I should have referred to what the CLP received from Unite the union. Hon. Members are absolutely right to correct me at the Dispatch Box.
The work notice must not list more people than reasonably necessary to meet the minimum level of safety and service. Employers must have no regard to whether someone is or is not a member of the union—or even the CLP—when deciding whether they need to be included in that work notice. Each employer and union must also adhere to data protection legislation.
Jeremy Corbyn (Islington North) (Ind)
I am proud of my union membership, which is recorded in the register of Members’ interests, and I used to be a full-time union organiser. The Minister claims that the public’s existence and lives are at risk because of the disputes. Does he not appreciate that thousands of nurses and other workers are leaving the national health service, and thousands of teachers are leaving their profession, because of stress, low pay and underfunding? That is what is causing a great deal of stress and problems for the public. Instead of reaching for the statute book and trying to legally constrain trade unions from their legitimate action, why does the Secretary of State not address the fundamental causes: poverty pay, stress, bad conditions and inadequate service in all parts of the UK?
Grant Shapps
The right hon. Gentleman should note that there are 40,000 more nurses now, and more doctors too. It is important to say that I agree with him, for once, because we are trying to work constructively—as we should—to bring strikes to a conclusion, but we must not do so at the expense of the lives and livelihoods of our constituents. It is not the case that the strikes are always perfectly safe for our constituents. That is why we must act. Unions must take reasonable steps to ensure that members do not participate in strikes if they have been named in a work notice. It is up to unions to ensure public safety and not put lives at risk. Only if they fail to do so could they face civil action in court.
Several hon. Members rose—
Grant Shapps
I will make a little more progress, because I think that you, Madam Deputy Speaker, would like to hear from other Members, and I have been as generous as possible in allowing interventions.
The Government, unions, employers and workers have a role to play in ensuring that essential services continue even during strikes. That is what we are ensuring. This approach is balanced, reasonable and, above all, fair. Countries such as Australia and Canada have the ability to ban outright those strikes that would endanger lives, such as in some blue-light services. However, this legislation does not seek to ban the right to strike. The Government will always defend the principle that workers should be able to withdraw their labour. In fact, the only time that the right to strike was removed from emergency services was by the Liberal Prime Minister Lloyd George, as part of the Police Act 1919. We do not propose to follow the Lib Dems’ example.
Vicky Ford (Chelmsford) (Con)
We are living in a time when democracy and freedom are under threat across the world. The right to strike is an important one. [Interruption.]
Vicky Ford
Thank you for clarifying that, Madam Deputy Speaker. The Secretary of State just mentioned that minimum service levels exist in many other countries, including Italy, Spain and France. I do not know whether Opposition Members have ever been to France, but the French have been known to strike. Does my right hon. Friend agree that my Chelmsford constituents should have the same benefits on strike days as those living in France, Italy and Spain?
Grant Shapps
My right hon. Friend is absolutely right. There is no reason that her constituents should suffer lesser protection than people who live in other European nations, most of whom are recognised on most days for being particularly pro-union and helpful in their settlements. I cannot see why Opposition Members would object.
Several hon. Members rose—
Grant Shapps
I will give way in just a moment, but I would like to get through a bit more first.
All that we are saying is that, in certain services in these important sectors, the right to strike must be balanced against the needs of the public to rely on a basic level of life-saving care. The legislation simply brings us into line, as my hon. Friend just said, with many other modern European nations, such as Spain, Italy, France and Ireland. They use minimum service levels in a common-sense way to reduce the impact of strikes. The International Labour Organisation itself states that minimum service levels can be a proportionate way of balancing the right to strike with the need to protect the wider public. That is what we are doing. Our own unions subscribe to and support the ILO, as do we.
Florence Eshalomi (Vauxhall) (Lab/Co-op)
On the claim of minimum safety levels across Europe, is the Secretary of State aware that, according to the OECD, France lost, on average, 112 days per 1,000 workers between 2008 and 2018? Spain lost 76 strike days, and Italy lost 42. Yet the UK lost only 20 strike days. Will the Secretary of State admit that this law is just to ban people from taking the legal action to strike?
Grant Shapps
I agree that we have had a good working relationship for the last several decades. The hon. Lady is right to point out that, as a result, over the last two or three decades we have typically suffered fewer strikes than some in continental Europe. As I have explained a number of times, we have seen in recent months a flare-up of strikes that are putting people’s lives and livelihoods at risk. This Government will not stand by and watch that happen.
Siobhan Baillie (Stroud) (Con)
There is a lot of focus on in Europe, but I would like to focus on Gloucestershire, where nurses have chosen not to strike. I thank them for that and for all the work they do in Stroud. I see nothing in this legislation that will prevent them from making the difficult decision to strike, or from joining their colleagues in unions. We are protecting those rights. It is the minimal standards that the public needs.
Grant Shapps
My hon. Friend is absolutely right. This is about minimum standards. For anyone who cares about the ability to take industrial action and to strike, what we are doing here enshrines that. It does not remove people’s ability to strike, but it prevents union bosses who perhaps are not as reasonable as the RCN from calling strikes that potentially put people’s lives at risk. That is a very different proposition, which I am proud to support.
The Government expect to consult on minimum service levels for ambulance, fire and rail services first. It is expected that these consultations will be published during the passage of this Bill. At the same time as bringing forward the legislation, the Government are doing all they can to continue the discussions that everybody is calling for to ensure that we get a pay settlement with unions that is affordable for the unions, for the country and for the workers paying for it.
Peter Dowd (Bootle) (Lab)
As far as I can tell, the Government have ruled out voluntary options 1 and 2 in their assessment, on the basis that they will be ineffective, particularly where unions and employers have major disagreements. The question is: why and how have the Government arrived at that decision now, in advance of the legislation itself?
Grant Shapps
It is because we were given adequate demonstration from the recent strikes that unfortunately in some cases the unions involved have not acted in the national interest, whereas others—the RCN, for example—have very much done so. I want to stress what I said at the top of my speech, which is that I do not want us to have to use this legislation if it is not required. We have live strikes going on, so we will be able to see where it is required and where it is not.
Several hon. Members rose—
Grant Shapps
I feel I have been generous in allowing interventions and it is right to complete my segment so that others can get on and speak.
We are mindful of and thankful for the contribution of public service workers in this country, but where unions insist on disproportionate and sometimes plain unsafe levels of industrial action without informing the NHS, for example, and others, we must take the necessary steps to protect the public.
Tommy Sheppard (Edinburgh East) (SNP)
Can the Secretary of State tell the House how many people died in the care of the national health service during the recent periods of industrial unrest who would not have died had the provisions of this Bill been in force at the time?
Grant Shapps
The problem, as people will recognise, is that as we do not have a nationally agreed level of coverage—particularly in the ambulance service—it is difficult to know or predict what would have happened if the Army had not stepped in. I know from talking to colleagues and officials that one of the problems was that, because of the late notice and the randomised trust-by-trust agreements, they have been unable to put in a national framework that would mean that it would not matter if you lived in Islington North or somewhere else; you would still get coverage on strike days. We said in our manifesto, and I repeat now, that it is not fair to let trade union leaders undermine the livelihoods of others, and nor is it fair for them to put lives and livelihoods at risk.
Nadia Whittome
Does the Secretary of State see the irony in expecting unions to ensure minimum safe service levels on strike days when his own Government are failing to do so on every other day? What does he make of nurses’ reports that staffing levels are in fact safer on strike days because the unions are negotiating appropriate cover compared with non-strike days?
Grant Shapps
I did not quite follow the hon. Lady’s point on the railways. The railways on strike days are finding it hard to offer any services at all, even for key workers and the people the Opposition sometimes claim to represent the most, such as the hard-working cleaner or the hospital porter. The people who cannot do their jobs remotely are unable to get to their jobs and they are losing money. They are becoming fed up with the forever strikes where the unions simply will not put the offer to their members in order for the members to have a say. Minimum service levels are important for that reason, and I have covered numerous times why we think minimum safety levels protect people’s lives.
In this Second Reading debate, we are simply asking the unions to tell us when they are going to withdraw their labour so that we can agree a minimum safety level. This is hardly revolutionary stuff. It is just a common-sense safety net to keep the public safe and ease some of the enormous anxiety that they have felt over the last few months. Failing to support the Bill today will mean that Members who oppose this legislation are essentially prepared to put the safety and welfare of their own constituents at risk. I commend the Bill to the House.
Several hon. Members rose—
Madam Deputy Speaker (Dame Rosie Winterton)
As colleagues can see, well over 50 hon. and right hon. Members are wishing to catch my eye. Before I call the Deputy Leader of the Opposition, I want to inform colleagues that there will be an immediate four-minute time limit on Back-Bench speeches so that we can try to get everybody in.
Angela Rayner (Ashton-under-Lyne) (Lab)
First, let me declare an interest as a proud lifelong trade unionist. I regret the tone of the Secretary of State’s speech today. If he is implying in any way that Members of the House do not care about their constituents or put their constituents first, or that members of our vital public services who got us through the pandemic do not take the safety of the people they look after seriously and would walk away, I think he should reflect on his comments.
I have been a Member of this House for some seven years now, and I cannot recall a measure that is at once so irrational and so insulting. Not only is this legislation a vindictive assault on the basic freedoms of British working people, but it is as empty of detail as it is full of holes. We will oppose the sacking of nurses Bill, and it is not just about nurses but about the many key workers who we clapped and who kept our services going in the face of the pandemic. We will vote against this legislation tonight, and the next Labour Government will repeal it.
We are in the middle of an economic crisis of the Government’s making. Working people are facing the largest fall in living standards in a generation. [Interruption.] The Secretary of State keeps shouting “Putin”, but what about Liz Truss?
Angela Rayner
What about the Conservatives crashing the economy? The Secretary of State forgets the fact that inflation has gone through the roof under their watch. Thirteen years of Conservative failure. Members watching this debate and constituents up and down the country know the truth, and they will tell this Government what they think, come the next general election.
Working people are facing the largest fall in living standards in a generation. In-work poverty, insecure work and financial insecurity are rampant. Inflation is in double digits. It is in this context that we have seen the greatest levels of strike disruption in 33 years, with ambulance workers taking their first major strike action in decades and the first ever strike in the history of the Royal College of Nursing. Our posties, train drivers, Border Force, health workers, train cleaners and even Ministers’ own officials have taken action too. The Prime Minister will not admit it, but this is a crisis and it is a crisis of the Government’s making. This legislation does nothing to resolve the problems that they have caused. There is no common sense in it at all.
Kim Leadbeater (Batley and Spen) (Lab)
I declare an interest as a proud trade union member. Does my right hon. Friend agree that this legislation does nothing to address the underlying reasons NHS staff and others have taken the incredibly difficult decision to strike? We are going to spend a number of hours in here this evening, but surely that time would be much better spent by the Government getting round the table with members of the NHS, listening to their concerns and coming to a resolution that would help to move things forward, rather than wasting our time here this evening on this horrible piece of legislation.
Angela Rayner
I thank my hon. Friend for that contribution and I absolutely agree. I was reflecting while the Secretary of State was making his opening speech, and I was thinking that, if I still worked in social care or one of the key public services—if I was paramedic, a nurse or one of those key workers he mentioned—and I was listening to this debate, I would be really upset and offended by the way he represented them here today. That is not what the Labour party thinks of those key workers.
The Secretary of State has claimed that this legislation is about public safety, so why does the Bill not mention safety once? He knows full well that working people already take steps to protect the public during strikes through derogations and voluntary agreements, yet he brazenly claims that this punitive legislation is needed because of ambulance workers. That is insulting and shameful, and I think he should apologise for the way in which he has awfully smeared ambulance workers.
Chris Stephens (Glasgow South West) (SNP)
I thank my Unison comrade for giving way. I am not a member of the parliamentary Labour party, but I am a proud trade unionist. Will my good friend remind the House that section 240 of the Trade Union and Labour Relations (Consolidation) Act 1992 guarantees that trade unions will agree to provide life-and-limb cover during an industrial dispute, because failure to do so could result in a custodial sentence? This Bill is therefore completely unnecessary.
Angela Rayner
I absolutely agree with my friend. We may not be in the same party, but we are in the same trade union.
These brave, hard-working men and women struck local life-and-limb deals on a trust-by-trust basis ahead of all the strikes. [Interruption.] The Secretary of State says it is trust by trust, but it is the best way to ensure that the right care is provided, and those employers know that. When I was a home help, we always put patient care first. We negotiated to ensure minimum safety levels, which is more than I can say for the Secretary of State for Health and Social Care, under whose watch we have seen excess deaths and an increasing crisis in the NHS.
Ellie Reeves (Lewisham West and Penge) (Lab)
I, too, declare an interest. As a proud trade unionist and trade union lawyer for many years before entering Parliament, I represented striking workers day in, day out. I know that no worker takes the decision to strike lightly. These strikes have been caused by the cost of living crisis caused by this Conservative Government. Does my right hon. Friend agree that this Bill is just a further attack on workers’ rights, like the anti-trade union legislation passed by this Government in 2016? It is just another attack on working people who keep us safe, day in and day out.
Angela Rayner
I absolutely agree. People watching this debate can see from the Secretary of State’s opening remarks, and from his previous remarks, what this is: a smokescreen about allegedly needing minimum service levels. We know that because, last autumn, his own Government assessed that minimum service levels were not needed for the emergency services due to existing regulations and voluntary arrangements. We all want minimum standards of safety, service and staffing levels, and we want them every day, but it is the Minister who is failing to provide them. Instead of holding them to account, they Government are seeking through this Bill to grab sweeping new powers to impose burdens on employers and to remove basic rights from workers across our public service. This is an attack on every nurse, health worker and firefighter in the country. They have gone from clapping nurses to sacking them.
Charlotte Nichols
My mam is a member of the National Union of Rail, Maritime and Transport Workers, as I have previously noted in the House. It is interesting to hear what the Secretary of State says about the need for this Bill and legislation more widely because he was previously Secretary of State for Transport, and the only negotiations that have not been settled with the RMT are the ones in which the Department for Transport is involved. Every other dispute with the RMT has been resolved. So is this Bill not just covering up his failure to negotiate basic trade union agreements?
Angela Rayner
My hon. Friend makes some important points. We can all see from the reports on the negotiations that there was genuine hope we could get to a settlement, and then the Government decided to bring in new conditions at the last minute to make sure that the dispute continued. It is the Government, not the trade unions, who are acting militantly and who do not want to resolve these disputes.
The Government should also reflect on the key workers and other workers who will be affected by this strike action, and who the Secretary of State says are putting lives at risk. Even if they are not a key worker, I am pretty certain that most people, like my hon. Friend the Member for Warrington North (Charlotte Nichols), have a friend, relative or someone they know who is. We all think they are heroes, and we all know they have their patients, the people they look after and the services they provide at the forefront of their mind.
No one wants to take strike action, least of all the workers who lose a day’s pay. I have long urged Ministers to do their job and resolve the underlying problems, but instead they have presented a Bill that tries to remove hundreds of thousands of workers’ historic right to withdraw their labour.
If the Secretary of State for Transport mandates that 50% of trains need to run on strike days, he knows that Network Rail will mandate that all signal operators need to work, because signals are needed even if just two trains are running. How can the Secretary of State for Business, Energy and Industrial Strategy say this Bill does not remove their right to strike? I know many Conservative Members will say that they respect, even champion, civil liberties, and I am sure they mean it, but with this Bill they are burning the freedoms for which we fought for centuries and are handing to Ministers unprecedented power over the individuals who are targeted. It is not just wrong in principle; it is unworkable in practice.
Dan Carden (Liverpool, Walton) (Lab)
I declare my interest as a proud trade unionist. I meet striking workers on an almost weekly basis at the moment, and I know that working people are often targeted by employers during a dispute. This Bill hands employers the right to decide which worker goes to work and which worker can go on strike. Does my right hon. Friend share my concern that this could allow bad bosses to victimise and target workers?
Angela Rayner
I absolutely agree with my hon. Friend.
This legislation
“is not a solution to dealing with the industrial action we see at the moment.”
Those are not my words but the words of the Transport Secretary in December. This Bill could increase the frequency of strikes and the
“numbers of staff taking action short of striking”
and lead to employers finding that they are “low on staff.” Again, those are not my words but the words of the Department for Transport’s impact assessment. Minimum service levels are “not a game-changer” and could
“promote more industrial action than they mitigate.”
That is not me speaking but the senior Conservative adviser who developed the policy. The jury is in. These measures will not work, cannot work and will only make things worse.
James Sunderland (Bracknell) (Con)
I remind the House that we have a number of sectors in the UK in which employees are not allowed to strike, namely the armed forces and the police. These people always turn up, often at times of crisis, and work without complaint to provide minimum service levels, and they do it on pay and conditions that are often inferior to what the unions are currently demanding. May I ask the right hon. Lady to present an argument for why this provision should not be extended elsewhere?
Angela Rayner
I am glad the hon. Gentleman got the crib sheet from the Whips. There is a complete and utter lack of clarity about what these measures will mean for the six sectors to which they will apply. In nuclear decommissioning, for example, staff already have voluntary arrangements. How will Ministers define minimum service in this sector? Will they require just a teeny bit of decommissioning? What about health? Will Ministers seriously sack doctors, nurses, paramedics and vital support staff at a time of critical NHS staff shortages? Apparently not, if the Government sources reported this week can be believed. Does the Secretary of State for Business, Energy and Industrial Strategy deny that the Health Secretary has told others to lobby the Prime Minister for improved pay offers? And can he really say that the Health Secretary believes this Bill will help the NHS?
The Bill states that all transport services will be covered, but the industry is largely in the private sector. Does the Secretary of State expect, for example, self-employed cabbies to serve work notices to themselves? There seem to be a split here, too; I hear that the Transport Secretary has given rail companies permission for new pay offers, and we already know his views on minimum service levels.
Let us move on to education. Will our overstretched headteachers be forced to write and serve work notices in their own staffrooms? Does the Business Secretary agree with the Education Secretary that imposing these regulations on schools would be a hostile act?
Let us turn to fire and rescue services. Has austerity not already made it impossible for some services to meet existing contingency regulations as it is? Will the Business Secretary of State leave it there, or will he just go for broke and ban all key workers from joining a union at all? That is something we know his desperate Prime Minister has been considering.
Brendan Clarke-Smith (Bassetlaw) (Con)
The right hon. Lady mentions the issue of pay and speaking to unions to resolve this dispute. Can she tell us what level of pay she thinks, and the Labour Front-Bench team believe, is appropriate? Would it be in line with inflation? Would it be more than inflation? How exactly would Labour solve this dispute?
Angela Rayner
I will just educate the hon. Gentleman: although I used to be a trade union official and I am a member of a trade union, I do not negotiate on behalf of a trade union. But what I would do is sit around the table and resolve this dispute with the trade unions. That would be better than what the Conservatives have done.
I come to the liability this Bill places upon trade unions. It says that trade unions must take “reasonable steps” to ensure workers comply with work notices, but what would they be? Will trade unions be liable for non-union staff? As for the burden put on employers, have they welcomed the bureaucratic nightmare that they will face? How will our already overstretched public services spare the resources to work out how many workers are needed to meet the minimum service levels the Secretary of State arbitrarily imposes on them, and to identify which workers should come into work and which should not? What will these bodies have to do? Will they have to do this before each and every strike day?
Paul Holmes (Eastleigh) (Con)
I would like to try again on this, because the right hon. Lady aspires to be Deputy Prime Minister and wants to negotiate with the unions in future. Will she outline for the House, because the Labour party has been very quiet on this, whether she backs a 19% pay increase for nurses? What costing has her party put forward as to how much she would award in pay rises to those public sector workers?
Angela Rayner
What I can say is that the Labour party would not have crashed the economy like the Conservatives did. We would not have inflation at the record levels we have at the moment. We would not have the disputes we have at the moment because we would negotiate with the trade unions and find a settlement.
What protections are in place to prevent unscrupulous employers from targeting trade union members with work notices? Or is this legislation a licence for blacklisting? The Secretary of State is hiding behind warped misunderstandings of the International Labour Organisation’s statute book and misleading comparisons with Europe. The ILO says that minimum service levels can happen only when the
“safety of individuals or their health is at stake”.
Can he explain how that relates to the list of sectors in the Bill? This Bill also makes no provision for the compensatory measures the ILO requires alongside such regulations. Countries such as France and Spain may have minimum service levels, but they have not averted strikes there; both lose far more days to strike action than the UK.
This Bill is a mess. It makes no sense. It has more holes in it than the last Chancellor’s Budget, yet we are being given next to no time to scrutinise it. This legislation hands far-reaching powers to the Secretary of State to not just impose minimum service levels, but decide what those levels would be. The legal commentator Joshua Rozenberg has called clause 3
“a supercharged Henry VIII clause.”
Where is the consultation the Secretary of State promised? Where is the impact assessment? The Regulatory Policy Committee says, in a scornful statement today, that it has not even received it yet. So why have the Government given only five hours for debate on the Floor of the House?
Let us look at what this Bill is really all about: a Government who are out of ideas, out of time and fast running out of sticking plasters; a Government who are playing politics with nurses’ lives because they cannot stomach negotiation; a Government desperately doing all they can to distract from the economic emergency they have caused. We have had 13 years of failure, and working people of this country cannot take any more. What this whole sorry episode makes clear is that this country needs a Labour Government. The Conservative party has proven itself incapable of cleaning up its own mess, and the disruption of the past few months simply would not be happening under Labour.
Neale Hanvey (Kirkcaldy and Cowdenbeath) (Alba)
It is difficult to listen to the Secretary of State accuse workers who have devoted their lives to life saving, whether they are fire workers, doctors or nurses, of putting others at risk. As for the arguments that this is too expensive or too difficult, today Oxfam announced that $21 trillion went into the pockets of 1% internationally during the global pandemic. Does the right hon. Lady agree that there is enough money but it is just in the wrong pockets?
Angela Rayner
The hon. Gentleman makes some important and valid points. In the past 12 months to two and a half years, we have seen the unravelling of the VIP fast-track lane for people linked to the Conservative party—that was a waste of billions of pounds that could have gone into investment in our public services. The public have seen 13 years of Conservative failure. Most of the public who are watching this debate today can ask themselves one question: do they feel better off after 13 years of the Conservatives? The answer to that question is no, unless of course they are in that 1%, with a WhatsApp number of a Government Minister.
Labour would have resolved these disputes a long time ago, by getting back around the negotiating table in good faith and doing a deal.
Geraint Davies (Swansea West) (Lab/Co-op)
Is my right hon. Friend aware that the Labour Government in Wales were given more than £1 billion for personal protective equipment and test, track and trace, and spent only £500 million? If we had had that level of savings, instead of having Tory crony donors putting their hand in the till, it would have aggregated up to a saving of £11 billion, as against a total pay cost to the NHS of £56 billion? In other words, we are talking about 20% of the annual pay for all nurses and all health workers. So does she not agree that if we had a Labour Government, we would have more money to provide decent wages for those in our health service?
Angela Rayner
I absolutely agree with my hon. Friend; not only would we have grown the economy—and we have a plan to grow the economy, unlike the Conservatives —but we would not have wasted billions of pounds and we would not have crashed the economy like the Conservatives did.
This Government are not working and this Bill is unworkable. The sacking nurses Bill is one of the most indefensible and foolish pieces of legislation to come before this House in modern times. It threatens teachers and nurses with the sack during a recruitment and retention crisis, and mounts an outright assault on the fundamental freedom of working people, while doing absolutely nothing to resolve the crisis at hand. We on these Benches will vote against this shoddy, unworkable Bill, and I urge every Member across this House who cares for fundamental British freedoms, and who knows that the only way to resolve disputes is by negotiating in good faith, to join us in standing against it this evening.
Priti Patel (Witham) (Con)
It is a pleasure to follow the right hon. Member for Ashton-under-Lyne (Angela Rayner). It was somewhat inevitable that this debate would quickly become partisan, and she reinforced that.
I pay tribute to our hard-working frontline public sector workers. On Friday, I visited workers at the East of England Ambulance Service NHS Trust, who have not been on strike, and all credit to them. In the operational control centres, people have been working diligently, day in, day out, to manage, quite frankly, the many, many challenging cases.
This House will understand my particular interest in operational frontline workers, especially when it comes to the police, who cannot strike, and also fire and rescue workers and Border Force officers. Just last year, I was able to use existing Home Office budgets to provide the police with a pay increase. It was a 5% pay increase across the board and one of the largest settlements in the public sector. I accepted the recommendation from the Police Remuneration Review Body, and it was my right hon. Friend the Member for North West Hampshire (Kit Malthouse), who is in his place, who oversaw that settlement. That funding was vital because we on the Conservative Benches believe in our frontline public sector workers. We believe in giving them the resources that they need and the working conditions in which they can do their jobs, but within the affordability of the Government’s financial envelope, which is incredibly important.
Janet Daby (Lewisham East) (Lab)
Is the right hon. Lady aware that the Secretary of State’s own colleagues—the Secretaries of State for Transport and for Education—believe that the Bill will not solve the strikes?
Priti Patel
I say to the hon. Lady and to all Members in the House that we are facing fundamental economic challenges right now, and they have to be met within the financial envelope of this Government. That is a statement of the obvious. At the end of the day, the Government have a responsibility to ensure that certain levels of service are provided in key sectors and in our public services, and rightly so. The public expect that, and the Government have a responsibility to oversee that and ensure that these levels of services help to protect and safeguard lives, keep our country safe, support the economy and ensure that the British public—the silent, hard-working majority—can go about living their lives in the way that we all want to see.
Obviously, the current wave of strikes and industrial action is concerning the public; it is also counterproductive when it comes to delivering public services. We have seen the level of disruption that is taking place. It cannot be right that, in the 21st century, our great country and our economy are put at risk by strike action. We have seen that on our borders; border control is being weakened by strikes. Patients and those in need of essential medical care are facing disruption. That is not right. All of us have constituents. This is not about one constituency against another, or one part of the country against the other. We have seen commuters who cannot get to work. That is wrong. We have seen businesses and, in Essex, small and medium-sized enterprises, operating on tight margins—not glitzy corporations—now suffering because of the strikes. Again, that is not right.
I know that many workers—I think that we all know this—find the decision to go out on strike very difficult. They struggle when it comes to voting in ballots because of the options that are sometimes put in front of them. We also know that there are some in the trade union movement—we must recognise this and we have heard it already from those on the Opposition Benches—who are happy to go along with the disruption, which is not acceptable. Some get satisfaction out of this. I am afraid that we have seen that in the past. We have seen Opposition Members go on picket lines and cheer and make political points. That is not right, because, at the end of the day, it is the public who suffer.
Indeed, since 2010, we have seen the hard left and militants take action and co-ordinate strikes, and the public suffer. That is not right. Let us not forget that it was the Conservatives who, in the 1980s, stood up to the militant trade unions, and, importantly, introduced reforms.
Several hon. Members rose—
Priti Patel
I do not have time to give way.
It is reform that we should be talking about today—reform that can lead to better public service delivery, changes to our laws—
Several hon. Members rose—
Priti Patel
I cannot give way, because I do not have time.
Importantly, I wish to press the Government to consider widening the list of sectors where minimum service standards are needed. I wish to ask the Government to ensure that they always look to keep legislation and measures open and under review, so that we can continue to uphold standards to protect the public going about their daily lives.
Alan Brown (Kilmarnock and Loudoun) (SNP)
The right hon. Member for Witham (Priti Patel) said that this was a partisan debate. Of course it is a partisan debate, because we either believe in the right of workers to strike or we do not, so, clearly, it is a partisan debate. She spoke about SMEs struggling because of strikes. I can tell her that SMEs in my constituency are more worried about their energy bills going through the roof and the lack of Government support that is coming down the line from April onwards.
We know that this is “anti-strike legislation”—those are not my words, but the words of the Parliamentary Under-Secretary of State for Scotland from the Dispatch Box last week at Scotland questions. He boasted that his Government were introducing “anti-strike” legislation in a rare bit of honesty from the Dispatch Box.
The Secretary of State for Business, Energy and Industrial Strategy keeps going on about minimum ambulance cover, but the reality is that this is an attack on millions of public sector workers. The explanatory notes tell us that this is a Tory manifesto commitment about tackling transport strikes. Although the Conservatives might hide behind that manifesto commitment, that commitment has nothing to do with clamping down on the NHS or on teachers. The Conservatives claim that it is about safety, but, as I said earlier, the word “safety” is not used once in the Bill or in explanatory notes. The reality is that this is an ideological war on the unions, which the Tories somehow think will curry favour with the public. It is a misty-eyed look back to Margaret Thatcher taking on the National Union of Mineworkers. It was a battle that she won, but it was a battle that resulted in the closures of mines and left communities devasted and thousands of workers on the dole. Do we really want to go back to sacking workers and putting them on the dole? That is what this is all about.
We know that this is an ideological war, because, in this period of Tory governance, the Government have already given us the Trade Union Act 2016, introducing voting thresholds, and then, last year, the legislation to allow employers to hire agency staff to break strikes. There is no doubt that this Government want to end strikes, effectively removing the ultimate backstop on collective bargaining.
The Bill not only facilitates an attack on workers, but enables employers to potentially sue unions for damages. It is no wonder that it is opposed by the TUC, the Scottish Trades Union Congress, Unison, the British Medical Association and the Royal College of Nursing among others, and I certainly support them in opposing this.
The legislation is nothing more than an attack on democracy—an attack on the rights of workers to withdraw their labour, and a further attack on devolution. Neither the Scottish Government nor the Welsh Government want this legislation, but, yet again, this legislation will be imposed on the devolved nations. In Scotland, this is further proof that the Westminster straitjacket does us no good at all. We could have had employment and workers’ rights devolved, but, unfortunately, Labour resisted those powers coming to Scotland. However, even the STUC has now called for the devolution of employment rights to Scotland, so perhaps Labour should consider that, instead of listening to Gordon Brown’s rehash of broken promises.
It is worth noting that the Bill does not impact Northern Ireland, as employment law is already devolved to the Northern Ireland Assembly, so, yet again, the so-called most powerful devolved Parliament in the world—the Scottish Parliament—has fewer powers than the Northern Ireland Assembly, and this proves it.
This ideological attack comes from someone who, as Transport Secretary, was non-existent when it came to dialogue and communications, and that was confirmed by the unions. He was somebody who was blocking the DFT from agreeing deals, and now we have that same person in post leading the charge for anti-strike and anti-worker legislation. Given the Secretary of State’s form, we know that he is up for a fight, but even if wins this fight, he will be destroying worker relationships for good. These are hard-pressed workers, particularly from within the NHS, who are struggling at times with the pressures that they are under. Who seriously thinks that not negotiating and threatening workers with the sack for striking will help matters? It is utterly insane. As the rail unions pointed out at the Transport Committee last week, deals have been agreed where DfT and UK Ministers are not involved. Clearly the union asks cannot be too unreasonable, when RMT and ASLEF have agreed deals with ScotRail and the Scottish Government, deals in Wales and deals with Merseyrail, for example—deals with Governments and authorities that have been hamstrung by the Tory austerity imposed on them, yet still managed to agree deals.
The Tories tell us they are the party of workers. That phrase fools no one, but they also tell us they are all about a high-wage, skilled economy. Yet, as we have heard, when workers ask for a wage rise they are told no, that it is unaffordable; even worse, in the case of the rail unions, the Secretary of State quotes figures that he thinks show how well paid all rail staff are. That is really telling: the Secretary of State is effectively saying, “Train drivers are overpaid—how dare they ask for a wage rise?”. That is insulting beyond belief.
The Tories can forget saying they want a high-wage economy. They were quite happy for the rail companies to pay dividends during the pandemic. They were quite happy for Virgin Trains East Coast to walk away from the London North Eastern Railway franchise owing billions of pounds, but they always go for attacking workers.
It is the same with the Secretary’s rhetoric about this legislation mirroring what happens elsewhere in Europe. His soundbites are easily proven to be false. Indeed, the general secretary of the European Federation of Public Service Unions, Jan Willem Goudriaan, argued that comparison by the UK Government of this Bill with existing laws in other EU countries was misrepresenting the situation, because all minimum service levels in Europe are agreed through negotiation. Moreover, the general secretary of the European Trade Union Confederation, Esther Lynch, said:
“The UK already has among the most draconian restrictions on the right to strike in Europe, and the UK government’s plans would push it even further away from normal, democratic practice across Europe”.
Pablo Sánchez Centellas, a spokesperson for the EPSU, was much more succinct, saying, “It’s bollocks.” The Secretary of State should reflect on the true position of this proposed legislation compared with what is happening in Europe.
It also seems that this legislation is in breach of article 11 of the European convention on human rights, especially with regard to proportionate action. Richard Arthur, head of trade union law at Thompsons Solicitors, said the Bill raised,
“very serious legal question marks”,
and anticipates legal challenges under article 11 of the ECHR and convention 87 of the International Labour Organisation. He has also rightly pointed out that the human rights memorandum that accompanied the Transport Strikes (Minimum Service Levels) Bill set out reasons why minimum service levels were not justified in fire services, health settings or education, yet that is what the Government now propose. By default, this Government are now going against their own previous human rights opinion. What kind of madness is that?
When it comes to the International Labour Organisation, which the Secretary of State likes to reference, its idea of minimum service requirements is clearly intended to be based on endangerment to life, personal safety or health. This wide-ranging legislation goes way beyond those parameters. The ILO makes it clear there should be an independent arbitration body, yet this Bill is completely silent on such a body. Why is that?
It is also clear that any minimum service level is supposed to be just that—a bare minimum. We have no idea what this Government will railroad through via statutory instruments. Statutory instruments cannot be amended and the last time a Government was defeated on a statutory instrument was in 1979, so we know all power rests with the Government there.
As Liberty has observed, the Bill does not create any form of minimal service. Liberty also confirms that MPs debating this legislation on Second Reading will not know exactly what they are voting for, so all the Tory MPs in the Chamber who are going to take part in the debate and then trot through the Lobby will do so blind to what the future legislation and regulations on minimum service will look like. It is an affront to democracy. Any Tory MP who claims to care about parliamentary sovereignty cannot possibly vote for this Bill.
The Bill is made worse by the Henry VIII power that allows amendment and revocation even of future legislation not yet passed. We can see how the Government are ramming this Bill through Parliament with minimum scrutiny and a proposed programme motion allowing just five hours for Committee. It really is an assault on democracy. The fact that the Bill comes into effect immediately once passed, so that work notices and actions can be taken by employers for strikes that have already been voted through, shows just how ridiculous this assault on workers is.
The impact assessment for the Transport Strikes (Minimum Service Levels) Bill observes that on a strike day in July 2022, 20% of rail services were still in operation. Right away that suggests to me that a minimum level of service was operating. What do the Tories really think a minimum service is, if 20% is not a bare minimum? There are huge ramifications here for rail workers overall, because if this Government force through a high threshold of minimum service, strikes by signalmen and track operatives will effectively be banned. A high minimum service will force all those guys to work to keep the tracks in operation and the trains running, effectively blocking strikes by the back door.
What will minimum service look like for teachers? Where does that fit in with all the talk about safety? What happens to train companies that cannot provide a minimum service at the moment, especially if union members decide not to work on their rest days and to work to rule? Where will that leave this Government on minimum service level obligations?
The overview in the explanatory notes makes it clear that the ability to sack workers is a key aspect of the Bill. That is the polar opposite of what was said when a transport strike Bill was listed in the Queen’s Speech in December 2019, when it was stated that workers would not be discriminated against. Why are the Government now threatening people’s livelihoods?
Despite what the Secretary of State says, it is also clear that this legislation will allow employers to target those they think are part of an awkward squad. Allowing employers to decide who has to work on notified strike days clearly infringes on workers’ rights to withdraw labour. Instead of the illegal blacklisting previously done by some companies, employers now can name workers they want to break a strike, and sack those workers if they stay true to their beliefs. How can that be deemed acceptable?
The sacking aspect is the proof that this is nothing to do with minimum cover by ambulance staff, as the Secretary of State likes to tell us. It also ignores the fact that section 240 of the 1992 Act, as my hon. Friend the Member for Glasgow South West (Chris Stephens) keeps saying, allows for preserving life and limb, and that unions have their own practices to comply with that legislation. For fire services, the Secretary of State could also utilise the Fire and Rescue Services Act 2004, if he felt the desire to do so.
It is crystal clear that this legislation is not required. It is an attack on democracy and the right to strike; it will prolong industrial disputes, not resolve them; it will allow individual workers to be targeted through work notices; and it is politically stupid. We have to wonder why this Tory Government are looking to antagonise something like 7 million workers across these sectors. It also shows an astonishing level of incompetence to bring in legislation that potentially allows them to sack essential workers in vital sectors where there is already a shortage of skilled workers.
The public can see through a Government who partied while clapping the nurses and now threaten them with the sack. They should follow the lead of the Scottish Government and get around the negotiating table. The resolution of the ScotRail dispute has been commended by both the RMT and ASLEF. There are no strikes planned in the health service in Scotland and the pay deal being implemented by the Scottish Government is one that the UK Government should replicate as a starting point when they get around the negotiating table.
It is outrageous that the Scottish Government, who have been negotiating in good faith with the unions, will now have this legislation foisted upon them—legislation that Westminster could use to force work notices through in Scotland against the wishes of the Scottish Government and that could ruin otherwise good working relationships in Scotland. Employment law should be devolved to Scotland, but even that would now just be a sticking plaster. It is perfectly obvious that what Scotland now needs is the full powers of a normal, independent country.
Mr Deputy Speaker (Sir Roger Gale)
I call the Chair of the Transport Committee.
Iain Stewart (Milton Keynes South) (Con)
It is a pleasure to contribute to this debate as Chair of the Transport Committee, and I will focus my comments on that particular sector.
Let me say at the outset that I support the objective behind the Bill. It does not strike me as unreasonable to seek a mechanism whereby the right of a worker to strike, which I have no quibble with, is balanced against the equally important right of an individual to go about their daily life, to travel to work, for healthcare, for education, to visit loved ones or for any of the millions of other reasons why people travel about. It is therefore appropriate to find a mechanism by which those two rights can be reconciled.
There are, however, a number of practical issues that I will put on the record. I understand that this is framework legislation and that the detail on how it will operate in the transport sector will follow. I was heartened to hear that the consultation on the rail side of transport will be in place before the Bill completes its parliamentary passage. There are some issues that have to be clarified and resolved before the Bill can properly take effect.
As has already been alluded to, it is possible in rail, for example, for parts of the system to operate at a minimum level. One train an hour could run from London to Manchester instead of three—there are a number of ways to have that reduction in service. But some parts of the system are binary: a signal box is either open or closed; and in aviation, an air traffic control centre is either open or closed. We need clarity on where the minimum level of service will apply.
A related point is whether every aviation, railway or bus line and service will have a minimum service or just a percentage of overall capacity. There is a trade-off to be made. If another line operates nearby, does that mean that both lines have to operate a minimum service, or would one have a more regular service? Those are the trade-offs that will have to be made.
In the current dispute on the railways, Network Rail and the train operating companies have a degree of flexibility in making decisions on which lines and stations will be open. Will what they have to cover now be specified in the regulations, or will they be left with some discretion?
Iain Stewart
If the hon. Gentleman will forgive me, I have only a minute left and many Members wish to speak.
My last point is about what will be covered by the definition of “transport services”. There are the traditional ones that we all assume will be covered—trains, buses, flights, ferries and the like—but what about some of the other modes of transport, such as cycle hire or taxi services? What does the definition encompass?
I will ask my Committee, when we meet later this week, if we can usefully contribute to the consultation, but I thought it would be helpful in this part of the debate to set out some of the questions that will have to be addressed as the Bill goes through. The objective of the Bill is absolutely right: we have to balance the right to strike with the right of people to go about their way of life.
Darren Jones (Bristol North West) (Lab)
I declare an interest as a member of Unite the union.
May I start by correcting the public record? As always, I am grateful to Ministers for taking the time to speak with me directly about Bills in my capacity as Chair of the Business, Energy and Industrial Strategy Committee. Unfortunately, in a Westminster Hall debate on Thursday, the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Thirsk and Malton (Kevin Hollinrake), referenced our discussion without giving me advance notice. He said that I was
“very supportive of a minimum service level”.—[Official Report, 12 January 2023; Vol. 725, c. 372WH.]
Let me be very clear to the House, to the Minister and to my constituents: I am against the Bill and will vote against it this evening. What I said to the Minister was that I—and, I am sure, many people—think it reasonable for there to be a minimum level of service from our emergency services during a period of strike action, and I encouraged him to pursue that via discussion with the relevant services and trade unions, not by threatening them with the prospect of an effective statutory ban on their right to strike.
When I asked the Minister whether he had sought to achieve that before introducing the legislation, he was unable to fully answer my question. As we have already heard this evening, the rationale for the Bill is therefore in question. The Government say that the legislation in place is not effective and that voluntary agreements cannot be sought, but that is not correct. Indeed, in signing off the Transport Strikes (Minimum Service Levels) Bill and its compliance with the European convention on human rights, even the Government said:
“In the case of other key public services, important factors exist to mitigate the impacts of industrial action”.
So what has changed?
As we have already heard, section 240 of the Trade Union and Labour Relations (Consolidation) Act 1992 makes it a criminal offence and a breach of employment contract to strike if doing so puts someone’s life in danger or puts them at risk of serious injury. That is why we have statutory guidance in place across public services, and it is why trade unions put life-and-limb service provision in place when they organise strikes with management.
On voluntary agreements, in December last year and this month, such agreements have been put in place. Unison and GMB told me that they limited strike action to six or 12 hours instead of 24 hours, that there were procedures for bringing workers back from the picket line if they were needed on the ward, and that they monitored call volumes in real time to ensure that patients were kept safe. As far as I am aware—from speaking with striking nurses at Southmead Hospital in my constituency, and later with senior management—there were no problems with those voluntary service arrangements, so the law is in place, voluntary agreements are in place, and there is no rationale for the Bill. We can therefore only conclude that it is a negotiating tactic—a threat—by the Government.
Lastly, my Committee was disappointed by the lack of time for scrutinising the Bill. Once again, Ministers have introduced primary legislation with wide-ranging discretionary powers for Ministers without publishing the details of vital secondary legislation in a timely manner. That is unacceptable. It is poor practice for Ministers to bring legislation to the House in that way. As the Regulatory Policy Committee confirmed for me today, the Government are obliged to publish an impact assessment so that that Committee can inform the House of the impact of legislation proposed by Ministers. However, Ministers have not given the Regulatory Policy Committee the time to review the Government’s impact assessment and then inform the House about the consequences of the legislation.
So not only do we have a Bill that has no evidence-based rationale for the need to legislate on voluntary agreements, but we have a Government rushing through the legislation without following due process and without drafting it to the standard that this House requires. It is clearly a rushed threat, it is unacceptable and it shows disregard for the House and the job that we have to do as parliamentarians to ensure that the law is passed effectively.
To summarise, can the Minister confirm that the Government will publish the statutory instruments and the impact assessment before the Bill finishes its passage through this House? I politely suggest that he may want to have another go at trying to explain to the House why the Bill is even necessary in the first place.
Saqib Bhatti (Meriden) (Con)
I stand to speak in favour of the legislation and to commend the Government for taking this difficult but necessary step.
Today I want to talk about duty. Through this legislation, we on the Conservative Benches are fulfilling our duty to protect our constituents. Those on the Labour Benches—in hock to their trade union masters—are failing theirs. Nurses, teachers, firefighters and all the other professions covered in the legislation are true heroes in our society. They carry out a great service to our communities. We must continue to focus on growing our economy to meet the wage demands of public sector workers, but we must also maintain the independence of pay review bodies precisely so that we can take the politics out of public sector pay. The conversation should also be about fairness and balancing the right to strike with the public’s right to be kept safe.
I understand the value of a trade union—I understand that workers may want to organise to protect pay and working conditions—but what we are seeing is hard-left leaders and militant trade unions taking advantage of economic difficulty to instigate what is effectively a rolling general strike. When those actions put lives at risk, we Conservatives know that we must take action.
A minimum service level need not be controversial. If the trade unions offer a safe level of service at the very least, there is no need to have a minimum service level. We saw that with the Royal College of Nursing, which maintained a safe level of service. That just goes to show how selfless and professional those nurses where while exercising their democratic right, and I am grateful to them for protecting the public. I certainly hope that, in the next independent pay review, we reach a positive result and avoid future strike action. The concept of minimum service levels is protected in article 11 of the ECHR and is endorsed by the International Labour Organisation. As we have already heard, this is no different from what is done in Italy, France and Spain.
In that light, I find the position of the Labour party quite astonishing. We all have a primary duty to protect our constituents and our communities. By opposing the legislation, the Labour party is, in my view, failing in that duty. To be frank, Labour has supported the strikes, whether implicitly or explicitly. At best, it has failed to take an appropriate stand against the trade unions; at worst, it is egging them on and relishing the disruption and division being caused. Is that what the modern Labour party stands for—closing down our schools, bringing our country to a standstill and threatening livelihoods? I know it is a new year, Mr Deputy Speaker, but it is the same old Labour party.
We on the Government Benches will not compromise on our fundamental duty. We will do all we can to protect our constituents, our communities and our society. That is why I endorse the Bill.
Kate Osborne (Jarrow) (Lab)
I direct the House to my entry in the Register of Members’ Financial Interests: I am a proud trade union member.
The Government are on a mission to take power from the people, with restrictions on the right to protest, restrictions on democracy with voter ID, the removal of huge chunks of human rights through their Retained EU Law (Revocation and Reform) Bill—that will scrap more than 4,000 pieces of legislation, many of which cover the basic rights of people in this country—and now this disgraceful attempt to criminalise workers taking legitimate industrial action.
Each of those power grabs commits political violence on our communities. As with most of this Government’s policies, this attempt to deny workers what is universally regarded as a fundamental human right seeks to divide communities and pit worker against worker, forcing some of them to walk past their colleagues and cross picket lines—although everyone here knows that I never have and never will cross a picket line.
Kate Osborne
No. This Government are turning back the clock not just on workers’ rights but on the rights of the vast majority of this country. As always, Ministers are only concerned about making money for their cronies and big business.
My constituents have been in touch with me over the last few days to express how angry and disappointed they are at the Government’s handling of these disputes. While I have time, I would rather say what my constituents want me to say than hear what Conservative Members want to say. My constituent Robert Best from Boldon emailed me yesterday:
“The Government should be finding ways to help striking workers, rather than remove their right to strike! Right now, refusing to negotiate with workers is the last thing our country needs.”
Robert is, of course, completely correct. The Government should be negotiating, not legislating. Workers need a pay rise, not a P45.
Last week, in a question to the Business Secretary, I referenced the struggles of the Tolpuddle martyrs and the seven men of Jarrow—people who were criminalised 200 years ago for fighting for basic health and safety and pay. The response I got was that I should stop “raving on”. I will not stop raving on. I will not stop supporting workers and the people in my community.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Kevin Hollinrake)
I am grateful to the hon. Member for giving way. Will she point out where there are any criminal sanctions attached to the proposed legislation? As far as I can see, there are absolutely none. It is important that we do not scaremonger in that way.
Kate Osborne
If we attack the trade unions, which are made up of members who are workers, then we are attacking the workers.
The Government’s proposed legislation and the response I just got show the contempt in which they hold working people. The Government do not care about working people. They do not care about our communities who are struggling to survive in the face of unaffordable food and energy bills, and struggling to deal with the cost of living crisis and 13 years of cuts by the Conservative party. We already have the most restrictive workers’ rights in western Europe, and it is an affront to democracy that this Government are trying to restrict them further.
Of course, the Government know that the Bill is not workable. It will be held up in the other place, if it gets that far, and in the courts. They only care about attention-grabbing headlines—about moving the Overton window so the people of this country will accept more and more restrictions on their rights.
Minimum service levels already exist: our NHS teams ensure that priority calls are dealt with, and teachers ensure that special educational needs children are catered for. What we need is for the Government to provide a minimum service level every day. We hear daily of workers struggling to cope with current staffing levels. The Government should be looking at ways to address the NHS staffing crisis, not making it worse.
The Government need to accept that the reason so many sectors are saying “enough is enough” and taking industrial action—we heard the announcement today that the teaching unions will take action, and I send my solidarity to them—is the Government’s failures. The firefighters, NHS staff, transport staff and education staff that the Bill targets are the very people who saw us through the pandemic. If the Bill passes, no doubt the Government will eventually seek to apply the legislation to workers in more sectors. Instead of inflaming the situation, they should start dealing with the causes of increased strike action: low wages, fuel and food poverty, and cuts to public services.
The Bill is part of the Government’s plan to restrict all our rights and to demonise and criminalise those who are just trying to survive. As I said at the start, it is an act of political violence. The Government should do the right thing for the country and withdraw it.
Dr Ben Spencer (Runnymede and Weybridge) (Con)
We have had so much disruption to our critical services in recent years, and I pay tribute to all those working in those sectors.
I support minimum service levels for our critical services. Who could oppose them? Well, the Labour party does. It says it is protecting workers’ rights, but does that not ignore the rights of all of those who rely on these key services for their health, their education and their livelihood?
We have seen the sad impact on pupils of disruption to education, the extra burden it places on families and schools, and the anxiety that causes parents and students. The Children’s Commissioner highlighted this weekend that it is the most disadvantaged who face the greatest impact if education is disrupted. I support the right of children to a great education, but the Labour party opposes minimum service levels. It says it is protecting workers’ rights, but that ignores the rights of working families and students if schools close.
Minimum service levels should also apply to our ambulance service. We all know the challenges our NHS is facing, yet at a time when we need to focus on addressing them, Labour opposes minimum service levels for our ambulance and fire services. Does anyone really believe it should be up to intransigent unions to decide whether help arrives? Emergency services should not be a bargaining chip in employment disputes. Our country cannot be held to ransom by intransigent unions. I believe the NHS should be there when we need it, but the Labour party opposes minimum service levels. It says it is protecting workers’ rights, but what about the right to receive care in an emergency?
The rail strikes are yet another example. I have been contacted by constituents whose children are unable to get to school, commuters unable to get to work, and patients unable to see their loved ones in hospital or go to appointments. I support everyone’s right to travel, but the Labour party opposes minimum service levels. It says it is protecting workers’ rights, but what about the rights of the self-employed? Are they not workers? What about the rights of small business employees? Are they not workers? What about the rights of drivers? Are they not workers? What about cleaners, administrators or carers—or any worker in a sector not supported by unions?
I was elected to this House to represent all my constituents, and that means protecting health services, education and livelihoods. In the light of union intransience to negotiate and modernise, minimum service levels are now needed, so I wholeheartedly support the Bill. I am genuinely appalled that the Labour party opposes minimum service levels. It says it is protecting workers’ rights. I think we all know who it is really protecting.
Vicky Foxcroft (Lewisham, Deptford) (Lab)
Let me start by declaring an interest: I am a proud member of both Unite the union and GMB and, prior to being elected to this place, I worked for Unite the union for over a decade. I know from first-hand experience the amazing work that trade unions do in representing their members in the workplace. Contrary to what some Conservative Members may have us believe, trade unions want their workplaces to thrive. They know that a productive workplace needs a happy, motivated workforce. They know that, when companies make large profits, they can ask for decent pay rises for their members. When workplaces struggle, they will work with the employer to ensure it survives. We all know how public sector workers kept our country moving during the pandemic. They worked night and day to keep us safe, but how does this Government seek to repay them? First, with a derisory pay offer and then— because the unions have voted to strike, rather than roll over and accept the derisory pay offer—the Prime Minister has resorted to launching a fundamental attack on workers’ freedoms. This Bill is unworkable and impractical.
The fact is that minimum service levels do not stop strikes in Europe. Between 2010 and 2020, France lost almost six times as many days to strikes as the UK, and Spain lost more than twice as many. Ironically, we already have minimum service levels in place in the UK. These are negotiated between the unions and the employers. I remember when I joined a picket line with striking firemen and women, and they told me how they had agreed with their employer that, if there was any fire or any other emergency, they would jump into the fire engines and be straight there. None of them wanted to see anyone lose their lives because of their action, which was their last resort. They ensured there was a mutual voluntary agreement not through legislation, but through negotiation—something that we all know happens right the way through the public sector.
Most worryingly, the Bill does not give any indication of what will constitute a minimum level of service, meaning that the Secretary of State will be able to change that at their discretion. Having stretched public services and the workforce to breaking point, the Government’s solution is to create conditions in which workers can be forced into work and are unable to withhold their labour, no matter what the employee does. Is that really the kind of Britain of which we want to be part—one in which workers’ freedoms are being restricted to the extent that they could be sacked for standing up for their rights?
Chris Loder
What would the hon. Lady say to those members of the RMT who decided to come back to work before Christmas because they did not agree with what the union was doing?
Vicky Foxcroft
That is democracy. Trade unions are subject to the most vigorous legislation when they are balloting and trade union money is the cleanest money in politics. Public sector workers are proud of the role they play in society, saving and protecting lives, but they need to be valued and their voices matter. When our NHS workers say they are worried about public health and the NHS, we need to listen, not curtail the right for their voices to be heard. The Government could and should have negotiated with the trade unions to get a decent settlement. They need to listen closely to the concerns that workers across the country have been raising. I thoroughly believe that, when we work together, we achieve better outcomes. Trade union rights are human rights. I defend their right to strike and I will be voting against this Bill.
Laura Farris (Newbury) (Con)
I would like to accept the invitation of the shadow Deputy Prime Minister, the right hon. Member for Ashton-under-Lyne (Angela Rayner), who encouraged us to be respectful in this debate. I wish to be so. We have heard a lot from the Labour party this evening about how the Bill is an act of political violence and an attack on the fundamental freedom of working people, but we have not heard an answer to the fundamental question that the legislation poses: do the British people have a right set out in statute to a basic safety and security guarantee during periods of strike?
Let us start with the law. The right to strike is embedded in international law, most notably in article 11 of the European convention on human rights.
Joanna Cherry
The hon. Lady asks whether any of us on the Opposition Benches care about fundamental safety levels, and yes we do. She asked whether we would support legislating, but legislation already exists. On article 11, she knows as well as I do that the measures have to be “necessary”. The Government’s own memo with the last legislation said that the measures were not necessary in relation to the health service, education and fire and rescue.
Laura Farris
I thank the hon. and learned Lady for her point, and I will assist her, because I was coming on to that point. The article 11 right may be restricted for two reasons—if the restriction is necessary, yes, and proportionate. The International Labour Organisation, of which the United Kingdom is a founding member, recognises that maintaining a minimum level of service provision can be both when it comes to essential services. Its committee on freedom of association has expressly set out the two circumstances in which it may be appropriate: where strike action would pose a risk to life, safety or health; or where the service is not essential in the strict sense of the word, but where repeated strikes would bring a very important sector to a standstill.
Chris Stephens
The ILO also says, does it not, that the minimum service level has to be agreed by an independent arbiter if there is a dispute, which is not in the Bill, and that there should not be a dismissal, which is in the Bill?
Laura Farris
I am grateful to both SNP Members for their interventions. I am coming on to those points, so I will make a tiny bit of progress, if I may.
On the point raised by the hon. and learned Member for Edinburgh South West (Joanna Cherry), we already know that transport and education meet the ILO’s test, because the ILO told the United Kingdom that in its response to the challenge to the Trade Union Act 2016 submitted by the TUC in 2015. In its response, the ILO committee of experts—Members can look it up; it is on the website—said that in relation to transport and education
“recourse might be had to negotiated minimum standards for these sectors as appropriate”.
We also know that many comparable countries take a much tougher line than the Government are proposing. In the United States, to give one example, 38 out of 50 states ban public sector strikes altogether.
Barry Gardiner (Brent North) (Lab)
The hon. Lady is presenting a reasoned case, but she knows, and she has just used the word, that these things should be negotiated. The measures in this Bill are by fiat of the Secretary of State.
Laura Farris
I thank the hon. Gentleman for his point. I am coming to all these things, so if he will give me a moment, I will continue.
In the United States, 38 out of 50 states have an outright ban on public sector strikes, including New York. Other states, such as Canada, Australia, Italy and Spain, all have embedded in statute minimum service levels that apply to important public services, and those services are often drawn much more widely than the Government are proposing. They include waste collection, postal services, broadcast services, the administration of justice, water distribution and energy supply.
I pick out those states not as random examples, but because every single one is a member of the International Labour Organisation. They are bound by exactly the same rules as us, and they are among our closest comparators around the world. Even more importantly, the International Labour Organisation has adjudicated all their statutory minimum service levels, and a 2019 publication from the ILO in Geneva commented:
“These examples illustrate the wide diversity of approach that ILO member states have adopted to address the challenges posed by industrial disputes in essential services”.
Minimum service levels
“supported by the ILO’s supervisory organs, exist to manage the balancing act between these necessary restrictions and the individual worker’s fundamental labour rights”.
I have not heard a single Member of Parliament tonight explain to me why the ILO is wrong or why the Government are striking the wrong balance when they have a mandate for what they are doing.
Sam Tarry (Ilford South) (Lab)
The disingenuousness comes from making comparisons with other nations under ILO regulations, which clearly have a completely different context. For example, the ILO imposes restraints on the circumstances in which such powers can be used, which is the antithesis of the Government’s blank cheque approach.
Laura Farris
With respect to the hon. Gentleman, I take the opposite position. The United States has an outright ban on public service strikes in 38 states. In December, President Biden made his most recent intervention in union rights when he signed legislation that imposed an outright ban on a national railroad strike. The United States is a founder member, as we are, of the International Labour Organisation. It goes much further, but the ILO has found its ban to be lawful. The Opposition will have to say why all those comparable states, which go much further than us, are somehow acting lawfully, yet we are not.
Dawn Butler (Brent Central) (Lab)
A lot of time is spent in courts in some countries arguing about minimum service level agreements. I refer the House to my entry in the Register of Members’ Financial Interests. I am a proud trade unionist: I worked for the GMB for more than a decade representing Members of Parliament, I am a member of Unite the union, and, after this debate, I might join a few more trade unions.
The Secretary of State took great joy in reading out how much hon. Members receive from trade unions, which is, as my hon. Friend the Member for Lewisham, Deptford (Vicky Foxcroft) said, the cleanest money in politics. I wonder if, when he returns to his place, he will let the House know how much Michael Green, Corinne Stockheath and Sebastian Fox have received in payments.
In the short time that I have, I will talk about the Bill. It is dishonest; it is an insult to trade unions, which are the aspirational vehicle of the working class; and it is an insult to Parliament and parliamentary procedures. Most of the detail of the Bill is missing and the Government have said that they will add it later—that is not how we are supposed to do politics or make legislation. It contains wide, prospective Henry VIII powers, and as we saw during the pandemic, if we give the Government such powers, they abuse them—but they are putting them in legislation. It allows the Government to amend and revoke any future legislation passed in this Session, so what is the point of Parliament? No matter what we say or pass, the Government can turn around and say, “We want to change it,” or, “We want to revoke it.” That is against what every single Member of Parliament has been elected to do.
Ministers are trying to have power over Parliament—that is all the Bill is about—and to encourage employers to have power over workers. When I was a trade union official, it said on our office wall, “To make rich people work harder, they pay them more. To make poor people work harder, they try to pay them less.” Safety does not appear anywhere in the Bill. The House of Lords debated a report, “Democracy Denied?”, which said that we must rebalance power between Parliament and the Executive. The Government are asking Parliament to vote on a Bill that does not really exist, because there is no detail.
If the Government are serious about having minimum service levels, and if they are serious about negotiating, which nobody in the Government seems able to do, they should agree to compulsory arbitration or mediation to resolve disputes, but they are not interested in that. They are interested in trying to paint trade unions, which are the aspirational vehicle of the working class, in one light and themselves in another.
I say to the Government, however, that the public are not stupid and they see what the Government are doing by trying to take away their rights at every single level, including the right to protest and the right to vote. We see what the Government are doing and we will stand up and stop them at every opportunity.
Chris Loder (West Dorset) (Con)
It is a pleasure to speak in the debate. I start by declaring that I am not a member of GMB, Unite the union or Unison—I apologise to Opposition Members if I have missed one out. My remarks relate to the transport industry, as I worked for the railways for 20 years before I was elected; indeed, I was previously a member of two trade unions.
I warmly welcome this important Bill. Those of us who are, and have been, sensible and constructive trade union members know that we can still take strike action without closing down the whole network or shutting down an entire operation. This whole debate is about balancing the right to strike with the right of our citizens to have access to key services when they need them—the right of citizens to get to work, the right of children to get to school, and the right of small business owners to continue their business.
Hard-working union members who feel pressured to strike, who believe that eight days of strikes in quick succession is too much, or who do not agree with having six days to respond to a ballot referendum instead of the standard 14, want the situation tempered and want their needs and rights to be recognised, rather than the ideological ones of trade unions. [Interruption.] I hear the moans of Opposition Members, but union members are fed up of being used as political pawns, which is why the strikes are breaking across the railway today. Individual members and individual areas are saying, “No. Enough is enough.”
Chris Loder
I am sorry; I will not give way to hon. Members, because I have to crack on.
These strikes are not a new or recent development. There have been constant strikes for more than six months among some groups and, in some locations, they have actually been going on for years. We are seeing a rampant appetite for industrial action. We know that is the case, because RMT members have been striking against themselves in the last 12 months. Last week, at the Transport Committee, it became clear that the head of the train drivers’ union not only is a Labour party member, but has a top seat on its executive ruling body. There is a close relationship between the Labour party and the trade unions, which is worth hundreds of thousands of pounds to individual Opposition MPs.
Sam Tarry
I thank the hon. Gentleman for giving way and for being honest about his trade union membership. I wonder what the hundreds of thousands of teachers who just voted to go on strike against his abominable Government think about being called political pawns, when they are striking to look after our children.
Chris Loder
I remind the hon. Gentleman that my remarks are about those in the transport industry who are in touch with me and those who represent them. I should say, however, that no teachers in my constituency have been in touch with me to tell me that. The Opposition should take note of that.
I will bring my remarks to a close. As I was saying, the relationship between the unions and individual Opposition Members is worth hundreds of thousands of pounds. The unions are showering the Opposition with hundreds of thousands—millions—of pounds as if it were confetti from the sky. It is absolutely outrageous. We have the privilege of being able to refer to the Register of Members’ Financial Interests when they speak in this House—that is all it takes. [Interruption.] It is all there; I assure hon. Members that there is no influence from trade unions in my entry.
The irony is that we know that Opposition Front-Bench Members have accepted the TUC’s invitation to go to Spain to talk about such things with Spanish unions and to work out how disruption can be caused in this country. There is so much to expose, but I am afraid that I do not have any time left, otherwise I would be happy to say more.
Owen Thompson (Midlothian) (SNP)
It looks like being quite the week for the use of draconian anti-democratic powers by this Government. The restrictive anti-trade union legislation they pushed through in 2016 clearly was not enough for them, so now we see an unprecedented attack that will undermine the most basic of workers’ rights—the right to withdraw labour. The right to strike is essential for fairness in negotiations with employers and to protect workers from having appalling pay and conditions imposed on them. It is what differentiates modern Europe from the medieval serfdoms of the past.
Turning their backs on the fundamental tenets of democracy really is something this Government are getting far too used to doing. The more they get a taste for it, the further they want to go. We saw them illegally prorogue Parliament and push through Brexit, and now we see plans for a bonfire of thousands of EU regulations that protect our rights. We saw the attack on devolution through the United Kingdom Internal Market Act 2020, and now we see them block a democratic decision rightly taken in Holyrood, cranking up the disrespect yet another notch. We see their anti-protest laws becoming even more authoritarian, with plans for the police to arrest campaigners before they even have a chance to commit a crime, and now we have their anti-trade union agenda being taken to the next level with these blunt powers being brought forward to stop strikes.
The sweeping Henry VIII powers in the Bill, enabling Ministers to amend, repeal or revoke primary legislation not yet passed, should chill the heart of any democrat. It is ironic that a Government so keen to turn their back on Europe lean so heavily on their excuse, “But that is what other countries do”. It is also deeply disingenuous, and as Unison has rightly pointed out, countries being cherry-picked by the Government, such as Italy and France, come to voluntary agreements through collaborative processes and have far less restrictive measures in place than we currently see in the UK. They do not have unspecified minimum service levels imposed on them by an Executive, as this Bill would enable this Government to do. Strikes are not the cause of the problems we face here; they are a symptom of the deep-rooted damage that has been done to our public service by this Government. The fact is that nobody downs tools without very good cause, especially during a cost of living crisis.
Whatever motivation workers may have, they are under attack on all fronts by this Government, and I commend the unions for taking action to protect their members. If the Government continue to be determined to go down this destructive path, further damaging industrial relations, they must devolve employment law now, so that the Scottish Government have the powers they need to protect the rights of the people of Scotland from the damage of this Government. Workers are not just striking for themselves. They are striking for the very future of public services, which they witness being run into the ground. They are protecting the cohesion of our communities, the standards of living we should all be able to enjoy and the rights of all workers. I stand in solidarity with them, and I will always fight to protect the right to strike from irresponsible attacks such as this. This Bill should be refused any further consideration, and I urge every Member here tonight to stand against it and vote it down.
Mr Gagan Mohindra (South West Hertfordshire) (Con)
May I first welcome you to your place, Mr Deputy Speaker? I place on record my thanks to all public sector workers for the excellent work they have done—not just during the pandemic, but for many years prior to it.
As we all know, the country is facing a difficult period of economic hardship. Yes, it is partly because of the war in Ukraine, and yes, it is partly because of our active response in the fight against the pandemic, but we need to be conscious that we are here to support workers, and not all workers are members of unions. It is fair and reasonable, and I always come back to the theme of being fair and reasonable, to suggest that some of this legislation—and I will be supporting the Bill—is about making sure there is a correct balance between those in the unions who wish to strike and those, who are a majority of my electorate, who continue either to run their own small companies or to work in smaller industries that rely on public services, such as the railway network.
As many Members will know—I have said this in this place before—while I represent quite a lovely constituency, public transport very much runs north and south, and when there are rail strikes, my constituents can get around only with extreme difficulty. While that may not necessarily hurt those who have the ability to access a car or, in extremis, pay for a little cab, those who we should be supporting the most are actually the ones most affected by this—the ones who are not able to use the bus to send their kids off to school or to get to their GP surgery for a doctor’s appointment.
Reference has been made to the East of England Ambulance Service NHS Trust, which I know has had a really tough time over many years. I would like to place on record my thanks that it was not one of the bodies that had a strike over recent weeks. Unfortunately, I have had to use its services over the last few weeks and months, and I know that it is literally saving lives in doing the excellent work it does in very difficult circumstances.
One of the things I want to make the public aware of is that, post pandemic, we have adapted the way we work. Yes, we are very supportive of people such as rail workers, but the general population will adapt. I am a firm believer that we should be encouraging people to get back to work, which may mean commuting to London, as it does for a lot of my constituents. However, if that proves too difficult, they will just turn around and say, “Actually, we’ve already adapted, post pandemic, to working from home”. That means we will hollow out the urban areas of our country such as central London, where instead of a vibrant high street, as we have had with Victoria Street, we will very quickly have high street retailers, such as the Pret A Mangers of the world, closing up shop because they do not have the footfall to support them.
Reference has been made to international comparisons. I for one think we have got the balance right with our support for workers, but also, counter to that, for wealth creators. As someone who comes from a small and medium-sized enterprise background, I know that I was fully reliant on one, two or three workers in, in my case, a furniture retail shop, to make sure the business could run, and I could not have done it without them. They were not part of a union, but 80% of our economy is reliant on SMEs, so while unions are excellent in the work they do for large public sector bodies, other workers out there are not members of a union.
Finally, my great friend my hon. and gallant Friend the Member for Bracknell (James Sunderland) mentioned that our armed forces and the police have not been able to strike for over 100 years. That system has worked, so I am not necessarily worried about this particular piece of legislation.
Sarah Owen (Luton North) (Lab)
I refer the House to my entry in the Register of Members’ Financial Interests and declare that I am proudly a trade union member, as will be no surprise to anybody. I will save the Secretary of State, who is no longer in his place, time and say that the donation to me three years ago was actually my final month’s salary from the GMB. I would rather have clean donations from trade unions any day over anything that the Conservative party receives from non-doms.
The attacks on the rights and freedoms of our constituents are only becoming more apparent. Lutonians have written to me concerned about the plans to restrict their right to strike not just for themselves, but for the services they rely on. We are all desperate for our public services to be stronger, faster, more effective and cost-efficient, but it is not the fault of the selfless and hard-working key workers in our health, rail and teaching sectors that public services are in the skeletal state they are or that nurses are having to use food banks. It is the fault of 13 years of Tory Governments.
As for many others in this Chamber, the prosperity of public services and their workforce is personal for me. I was care worker, I worked in the fire brigade and I was a healthcare assistant doing shifts in hospitals. I have also been a trade union member for nearly 20 years, and I have been a trade union officer working on pro-manufacturing campaigns, bereavement leave for foster carers, stopping the abuse of agency workers, training airport staff and ensuring survivors of domestic abuse are safe at work. I say this not because it is particularly extraordinary, but because this is all in a day’s work for trade unionists, and Conservative Members should bear that in mind while they denigrate the work of trade unions.
This is not just political; it is also personal. My partner works in education, while my father was a firefighter and my mother was a nurse. They took great pride in their work, and so they should. When we face crises personally or nationally, it is these workers we rely on to keep us safe, to heal us, and to protect our homes and our loved ones. Why then are this Government determined to punish those workers with real-terms pay cuts, job losses, worse terms and uncertain futures, yet still reward bankers with unlimited bonuses?
Not only are British public service workers seeing their pay declining or their jobs cut, they are now told that they cannot speak up about it. The message to public sector heroes from this Bill is: “Put up and shut up”. Unfortunately for this Government, that is not the spirit of this country or of the party of these Benches. Our constituents know the value of their work, and they know the dignity they deserve. When it comes to civil liberties, oh, the Conservatives talk a good game about freedom of speech, but on the basic rights to strike and to protest, this Government—one of the most extreme Tory Governments—are on the wrong side every time. They fight for the rights of holocaust deniers, climate change sceptics, and out-and-out misogynists to say whatever they like online, in an effort to appear anti-woke and pro-freedom of speech, yet when it comes to the freedoms of nurses, teachers, doctors, paramedics, firefighters, support staff and healthcare assistants, the Conservatives are not on their side, and they do not want them to have the same freedoms as everyone else.
Ordinary working people such as the ones Ministers are now trying to gag fought for our rights—the right to maternity leave and bank holidays, the right to be safe at work and have equal pay, and the right to remove our labour. The right for people to have their voices heard when those in power are not listening. Time and again, the Tories show that they are on the wrong side. All they have to do is listen and negotiate. They are the reason why people need strong trade unions and a Labour Government, because the Tories will never be on the side of working people. I will always be on the side of working people, and I will vote against the Bill today.
Ruth Edwards (Rushcliffe) (Con)
This is a debate about the balance of rights, and balancing the right to strike of our constituents who work in essential public services with the rights of our other constituents, and their right to get to work, to school, to have their operation, and even in the case of blue-light services, their right to life. That is what we are talking about. The Bill is not about views on the rights and wrongs of the current strikes. It is certainly not an attack on public sector workers, and suggestions otherwise from Labour Members are both disgusting and an attempt to stifle genuine debate.
I deeply value the work of nurses, teachers, firefighters, ambulance drivers and rail staff across Rushcliffe and the country, and of course they should have the right to withdraw their labour. The Bill is about how they can do so safely. The Labour party would have us believe that this is some outrageous attack on workers’ rights—“political violence”, said the hon. Member for Jarrow (Kate Osborne)—and something that no civilised country could possibly contemplate. No civilised country other than Spain, Italy, Germany, France, or indeed the United States, Australia and Canada, which in some areas have an outright ban on strikes in blue-light services. Normally, Opposition Members idolise Europe’s approach to employment rights, but on the issue of minimum services they are keeping very quiet. Why? It is because their paymasters in the unions do not want to let them do otherwise. I understand, I do—[Interruption.] I will happily give way to the hon. Gentleman.
Sam Tarry
Most Labour Members will be proud of the fact that trade union members in their local branch meetings vote democratically to make donations to local Labour party Members of Parliament. I ask the hon. Lady to withdraw that preposterous, outrageous and untrue comment.
Ruth Edwards
I certainly will not, because the hon. Gentleman failed to declare in his intervention that he received £13,000 from unions. I notice there are a lot of proud union members who are not declaring their donations. That is not me being party political—it is a requirement of this House.
I understand the position of Labour Members. It is not easy to turn round to the union barons who have given them and their colleagues more than £1 million in the past four years and tell them that they are wrong. The Bill builds on principles in the Trade Union Act 2016, which put higher vote thresholds on important public services when unions ballot on strike action. It builds on the principle of life-and-limb cover, and will prevent the situation that we had at the end of last year when different ambulance services had different agreements in place with unions. That resulted in a postcode lottery for patients, which is unacceptable.
The Bill complies with the criteria set out by the International Labour Organisation, as my hon. Friend the Member for Newbury (Laura Farris) set out in detail. In short, the Bill sets out a pathway for workers to exercise their rights safely. It should not be controversial. It has precedent in the UK, all over Europe, and in international conventions. We are making the responsible choice to protect all our constituents. On the Opposition Benches, however, it may be a new year, but it is the same old Labour, still acting as the mouthpiece of their paymasters, the union barons. They have been bought by the barons, and are still doing their bidding.
Clive Lewis (Norwich South) (Lab)
I refer the House to my entry in the Register of Members’ Financial Interests, in which Members will find no money from oligarchs, Saudi Arabia, oil barons or oil companies—nothing but from trade unions, and I am quite happy with that.
Here we are, a little more than 18 months since the end of lockdown, and the Government have gone from clapping to slapping key workers. It did not have to be this way. In the wake of covid, the Government had a choice. They could, like the 1945 Labour Government at the end of world war two, have chosen a new path, a different path, and a new social settlement that recognised the sacrifice and efforts of key workers. They could have rewarded them by embarking on collective sectoral bargaining, and invested in rebuilding our public services and in housing after more than a decade of decay. They could have built a new social settlement, recognising the role that those workers played in that national crisis. Instead, they chose to look to the first world war, and to the Geddes axe, when the post-war Conservative Government slashed public spending, attacked workers’ rights, and told the poor they and not the wealthy must bear the brunt of the costs of the war.
The Bill puts beyond a shadow of doubt whose side this Government are on. It is certainly not the public, because those public sector workers who are being denied their democratic rights are the public. They are the ones defending public services, not the Government, and they are the ones fighting to stop trains without ticket offices, and railways with a reduced number of safety precautions. They are the ones fighting to stop a healthcare system that is run from silicon valley by surveillance companies such as Palantir, and fighting for our education system, which 44% of teachers plan to leave within five years. The Government, however, are on the side of employers such as P&O, British Gas and British Airways, with a Bill that gives a green light to the practitioners of fire and rehire, poverty pay and a race to the bottom. And yes, as ever, the Government are on the side of the rich and wealthy, as they have always been.
But the Bill is also part of a longer term, anti-democratic trend, and part of a raft of anti-democratic legislation passed by the Government. It is a trend of transferring power away from workers and citizens, and eliminating their limited rights and freedoms in the workplace and across society. The Police, Crime, Sentencing and Courts Act 2022 criminalised political protest. The Elections Act 2022 will disenfranchise millions through voter ID, and it undermined the independence of the Electoral Commission. The Judicial Review and Courts Act 2022 limits the power of courts to remedy unlawful Government action on the part of the Executive. The Nationality and Borders Act 2022 means that 6 million in this country could now be stripped of citizenship at the whim of the Home Secretary, and although the Government have temporarily gone quiet on this, we know they also want to repeal the Human Rights Act.
The British public have had enough of being told by this Government to suck up failing privatised public services, corrupt politicians, collapsing living standards, a dying environment and a falling democracy. They have had enough of being told that there is no alternative, that politicians will always be caught on the take, that the rich and powerful will always be able to buy influence, that foodbanks are inevitable, that the NHS will always be in crisis, that our rivers will always be polluted, and that a race to the bottom on employment rights is inevitable. History will show that the Bill is the act of a Government on the ropes, bereft of direction, and lashing out at the very public they claim to protect. This grim 50-year-old ideological experiment is in tatters all around, and I will be voting against this piece of rubbish.
Chris Clarkson (Heywood and Middleton) (Con)
I welcome you to your place, Mr Deputy Speaker, and it is a pleasure to follow the hon. Member for Norwich South (Clive Lewis). I was struck by something he just said. Yes, the rich and powerful can always buy influence—we need only see the number of people who have made declarations this evening.
This simple and effective Bill is aimed at ensuring that the right to collective bargaining and the withdrawal of labour does not conflict with the right of the average British citizen to access lifesaving or potentially important services while unions and the Government negotiate. The debilitating strikes of the past six months have wreaked havoc on this country, dragging us into a virtual state of second lockdown, and preventing workers from travelling to offices and shoppers from accessing high streets, and putting additional pressure on the NHS. We understand that this is driven in part by the inflationary pressures that we are encountering as a nation.
No one is disputing the right of workers to withdraw their labour as part of a negotiation, however unreasonable some of those demands end up being; no one is saying that at all. All that we are asking for is some proportionality and responsibility in how that is done. Our nation should not be held hostage and have lives risked simply for want of minimum safety standards. That is what we are talking about.
We are not talking about blanket enforcement; just recognition that some services are simply vital. Those include health, fire and rescue, health and education. Few of us will forget the impact of shutting down schools during the pandemic. They also include transport—the Mayor of London cannot stick to his zero strikes pledge—the decommissioning of nuclear installations; the management of radioactive waste, which is surely a no-brainer and one that we can all agree needs to go on; and border security.
The Bill ensures that people can access an ambulance when they call for one, count on fire responders in an emergency, send their children to school and travel to work. Why should people be held to ransom by militant, unelected trade union officials? If they want that power, they should stand for election and not simply buy support from the Labour party.
Chris Clarkson
No, I will not.
Minimum service levels are not an anomaly. France, Spain and Italy have given minimum service levels during strikes, and I thought that the Labour party was in favour of more European alignment. The Government do not want to use the Bill, but it is vital to have in place a system that allows the British public to access services during strike days and go about their lives in an ordinary way.
We have to ask ourselves: what are the strikes really about? I will highlight rail because I am a regular commuter. Union bosses have refused to accept that the pandemic has fundamentally changed how travellers use the rail network. Modernising the network is essential to ensuring that it is sustainable for future generations. The Government stepped in with support of more than £30 billion for the rail industry during the pandemic. That is not pocket change.
I have seen at first hand the impact of what rail strikes have done to the west coast main line, where at one point we faced coach journeys of up to 10 hours because of the lack of flexibility. That is fine for me because I can afford to be flexible with my working arrangements and I have a good, guaranteed wage. However, plenty of my constituents do not have that, so if the service is not there when they need it, they are in serious trouble. The hypocrisy of the trade unions, who say that they are fighting for workers, is palpable. Travel is unavoidable for millions of workers who do not have the option of working remotely. Those people are driving Britain’s economy, despite the obstacles put in front of them by the trade unions. Let us look at the collateral effects: December’s rail strikes cost UK hospitality £1.5 billion, and huge swathes of businesses and jobs were lost.
The simple fact of the matter is that, with more than £15 million donated by the trade unions to the Labour party, it is no wonder that Labour Members sit on their hands while trade unions cripple our vital services. Even the Leader of the Opposition knows it—that is why he is not here leading the debate but instead rubbing shoulders with bankers in Davos.
The strikes have become contagious, spreading from one sector to another, holding the British public hostage in the hope that the Government will surrender. That is not how a democracy works. I support workers’ rights, but that is not limitless. I welcome the commitment to the rights of the British public to access vital services during strike action, and I look forward to supporting the Bill later tonight.
Ian Byrne (Liverpool, West Derby) (Lab)
It is an honour to follow the hon. Member for Heywood and Middleton (Chris Clarkson) with that extremely interesting speech. I would like to put on the record that I am a proud member of Unite the union and the GMB. I will vote against the Bill and stand in absolute solidarity with all those in Liverpool, West Derby taking industrial action in defence of their pay, their conditions and their colleagues, as well as in defence of the public who rely on those services. I am proud to stand alongside workers on picket lines and will continue to support those workers in their struggle with pride. May I offer a word of advice to Conservative Members? Go to the picket lines and speak to the people on them. Maybe then the demonisation will not slip so easily from their lips.
This is a pernicious Bill that shames the House and the nation. It is designed to attack and demoralise public service workers who are taking industrial action as a very last resort. I have spoken to nurses, firefighters, civil servants and posties in Liverpool at our food pantries, who have been forced into food poverty because of the wages that they have received after 12 years of austerity—a political choice made by the Tory Government in 2010. We are now living through the wreckage of that choice, with the destruction of our NHS and public services.
Let us be clear: the reason why these workers are having to take industrial action in the first place is because of the Government and their decisions. Never, ever forget that the hunger and poverty that many public sector workers face at the moment is a political choice that the Prime Minister unfortunately finds so easy to make. We have a multi-millionaire Prime Minister who will never know what it is like to feel hungry—he will never fear the creep of poverty at the door of his home—telling public sector workers facing this dire situation that they will be sacked if they withdraw their labour when they are simply saying, “Enough is enough.” It is obscene.
We have a morally bankrupt Government with financial scandal after financial scandal, and second job after second job, bringing in draconian legislation to outlaw industrial action for the very people we clapped during covid for everything they had done for us as a nation. The Bill is purposefully lacking in detail. It is a practically unworkable and potentially unlawful attempt to undermine the right to strike. Instead of bringing it to Parliament, Ministers should have been spending time negotiating meaningfully with the trade unions about pay and conditions. They could also have used that time to write the long-promised employment Bill.
The Bill must be voted down. The draconian drift is becoming a raging current. Any parliamentarian who believes in the democratic rights of our citizens must see that clearly and kick this wretched piece of legislation out of this place.
Angela Richardson (Guildford) (Con)
Industrial action has impacted on many aspects of people’s lives in Guildford over the past few months. I regret the decisions made by multiple trade unions to strike, leaving no train services for commuters and key workers in my constituency, Christmas cards to loved ones arriving in January, and delays at the UK border for those returning from breaks with family and friends. And this evening we hear that our children’s education is to be disrupted again. That is deeply saddening news.
I welcome the Government’s minimum service level legislation, which delivers on our manifesto commitments and protects the rights of workers to withdraw their labour while ensuring that the general public can go about their daily business safely. This pragmatic legislation will bring the UK into line with other industrialised nations such as France and Spain, which already have such common-sense agreements in place.
During periods of industrial action on the railways, constituents in Guildford and those travelling to town for work have found themselves cut off from the railway network, with no services being run by South Western Railway on those days. That has forced them either to work from home, to find alternative transport such as using their cars, or simply not to work at all. It is often those who earn the least who cannot work at home. Over the Christmas period, the overtime ban that was in force also reduced the levels of service provided to Guildford station.
I know from conversations with constituents on the doorsteps and from my inbox that local people are rightly concerned about the level of public transport provision that they are currently receiving. A recent YouGov poll placed the level of support for this legislation among the wider public at 59%, and I know that feeling is reflected locally in Guildford. The deputy Leader of the Opposition, the right hon. Member for Ashton-under-Lyne (Angela Rayner), said in her opening speech that Labour would repeal the Bill. Labour Members are showing themselves yet again to be out of touch with my constituents and out of touch with the country.
Rail Partners, the organisation that represents the owners of train operators, including FirstGroup, which owns the majority share in South Western Railway, has said that the Bill’s approach
“seeks to appropriately balance and protect the right to strike and the rights of others to get to work or school and access necessary healthcare.”
I agree with its assessment. The safety of the general public must always remain the primary responsibility of any Government. I welcome the measures proposed in the Bill to do just that. I will be supporting this legislation.
Joanna Cherry (Edinburgh South West) (SNP)
I will not be supporting this legislation, for three reasons. First, the Bill is not really about safety levels at all. Secondly, claims that the Bill reflects current practice elsewhere in Europe are inaccurate. Thirdly, there is the very real risk that these proposals are in breach of the United Kingdom’s obligations under the European convention on human rights and international labour law. As other hon. Members have said, the word “safety” does not even appear in the Bill. It is a Bill about minimum service levels, not minimum safety levels, yet repeatedly Conservative politicians have talked about minimum safety levels and seem very happy for confusion between the two concepts to be caused. I suspect that is because this is a deliberate attempt to hide from the public the real intentions behind the Bill.
Secondly, on European standards, most European countries, as others have said, have a very different model of labour relations from the United Kingdom, which, thanks to successive Tory Governments, has one of the strictest systems of regulations of industrial relations in Europe. In other countries, trades union rights are protected in their written constitutions. Labour law experts will tell you that in most European countries minimum service levels are established by collective bargaining and, in so far as legislation exists, it provides a framework for these agreements, rather than for top-down regulation. The Bill would enable the Secretary of State to impose sweeping regulations from the top on millions of workers in a number of different sectors.
That brings to me to my third point. As I said when I intervened on the Secretary of State, the measures in the Bill go considerably further than the minimum service levels envisaged by the Transport Strikes (Minimum Service Levels) Bill published last October. The Government’s own human rights memorandum which accompanied the previous Bill set out in some detail, with reference to existing legislation, the reason their lawyers then said that minimum service levels imposed by legislation were not justified in fire services, health settings and education. Yet that is what they are now proposing and their human rights memorandum for the Bill is very different. I can absolutely guarantee to hon. Members across the House that as Chair of the Joint Committee on Human Rights, I will be making sure we scrutinise very carefully the difference between the two human rights memorandums.
On compliance with international labour law, the International Labour Organisation has enshrined the right to strike in its convention, to which the UK is a signatory. It is true that minimum service levels are allowed, but not if they are imposed from the top down. They need to be set by negotiation or, if the negotiation breaks down, by an independent body, as happens in Italy. Only in European countries well known for flouting fundamental rights, such as Hungary and Russia, do we see Government-enforced minimum service levels leading to the sacking of workers and the bankrupting of unions fighting for fair pay and conditions. Yet that is exactly what the Tories want to do in the Bill. Perhaps we should not be surprised that, despite all their anti-Putin rhetoric, the Tories want to emulate Putin’s approach to striking workers. Perhaps it is not so surprising given that the Deputy Prime Minister told us he is not ruling out leaving the European convention on human rights and the Home Secretary is keen it should happen as soon as possible. Given that they are keen to be on the same side as Russia on human rights, it is perhaps not surprising that they are doing that in the Bill.
The bottom line is that key workers are striking because their wages have not begun to keep in line with inflation and because the interest rate hikes caused by Tory economic incompetence mean they cannot afford their rent or mortgage. The Government need to recognise the stark reality of those people’s lives and work with their unions respectfully to reach agreement.
Anna Firth (Southend West) (Con)
The Bill is about duty, fairness and balance—nothing more, nothing less. The first duty of any Government is to keep their people safe. The Bill is about ensuring we have minimum levels of safety and service across our essential public services. I heard what the hon. and learned Member for Edinburgh South West (Joanna Cherry) said about safety, but when we are talking about ambulances and accident and emergency departments, it is about safety. But it is also about fairness. Due to the hard work and dedication of all the ambulance workers across Essex and all the NHS workers at Southend Hospital—every doctor, every porter and every care assistant—nobody in the wonderful city of Southend and in Leigh-on-Sea has suffered any disruption in the service. They have been served with the same dedication and care every day since the strikes began. Why should those who are not lucky enough to live in Southend and Leigh-on-Sea not get the same service? Of course they should because they are all—
Anna Firth
No, I won’t because of the time.
This is about balancing the right to strike with the right to a minimum level of service for those who are paying for it. Of course, the right to strike is something that we on the Conservative Benches consider to be important. It is a key right.
Anna Firth
No, I won’t because of the time.
That right has been a key part of our labour laws since 1906. If I can introduce just a moment of levity into this debate, one could say that collective action actually started in 1381 with the peasants’ revolt, which started in Essex.
However, it is undeniable that strikes are incredibly disruptive. In October last year, we lost 417,000 working days due to strike action, and 2022 is set to have the highest number of days lost to strike action since 1990. Whether it is our trains, ambulances, hospitals or postal service, the strikes disproportionately affect the poorer people in my constituency. Two million people journeys were made from two stations in my constituency of Southend West. These are people who cannot work from home, who cannot afford taxis to get to and from work, who are not allowed the indulgence of hotels that—let’s face it—those of us who work in this place are able to claim. And this affects children. People travelling to our brilliant grammar schools in Southend generally do so by train from different parts of Essex. Our children’s education has suffered enough due to covid. There must be minimum levels to ensure that our children get the education they deserve when they are in school.
On fairness and equality, by ensuring that we have minimum safety levels in our public services, we are ensuring that a service funded by taxpayers equally, serves every taxpayer equally. How could anybody object to that?
This should not be a controversial opinion. Police officers and members of the armed forces are already prevented from taking strike action. Too often, we have to rely on the armed forces, who cannot take strike action because theirs is an essential service. Life and limb are involved. Yet we rely on them—
Barry Gardiner (Brent North) (Lab)
I refer the House to my entry in the Register of Members’ Financial Interests as a proud union member.
The Bill is an affront to Parliament. It will not protect the public, it will worsen industrial relations and it will undermine the unity of the United Kingdom. It should be voted down tonight. There has been much heated argument about the provisions in the Bill. On all the moral and pragmatic arguments, I stand firmly on the side of working people and their right to withdraw their labour, and against what the Government seek to do in the Bill. However, I do not consider that those moral and pragmatic arguments are likely to change the minds—or more importantly the votes—of Conservative Members. I therefore want to put forward an argument against the Bill that I believe they both can and should accept: it is damaging to our constitution and to the Union.
The reason the Bill is so short is that it delegates to the Secretary of State the power to set out all the relevant law in regulations through statutory instruments—regulations which receive only the most minimal scrutiny in this place and cannot be amended. So it is the Secretary of State, not Parliament, who will make regulations to determine the levels of service in relation to strikes, who gets to define the nature of the services to be provided, the number of people who are to provide them, the time at which they are to be provided and the manner in which they are to be provided during a strike. Extraordinarily, the Bill also proposes that the Secretary of State should have the power by regulation to
“amend, repeal or revoke provision made by or under primary legislation”
in this House. So statutes passed by Parliament can be amended by regulations drafted by the Minister without full parliamentary scrutiny. In a recent report by a Committee of the House of Lords, “Democracy Denied?”, their lordships state:
“A substantial groundswell of concern is developing about the shift in power from Parliament to ministers.”
This Bill is perhaps the most egregious example yet of a measure brought forward by an increasingly autocratic Executive to strip Parliament of its role in determining what, for many of us, is a critical area of employment and human rights.
It gets worse. The primary legislation that the Secretary of State can amend or repeal is defined to include an Act of the Senedd or the Scottish Parliament. That should set alarm bells ringing for all of us, nationalists and Unionists alike. What is being proposed is that the Secretary of State in Westminster should have the power by regulation to override devolved legislation passed by the Scottish Parliament and the Senedd—and to do so with minimal scrutiny in this House. If the Executive had intended to provoke constitutional outrage and call into question the very basis of the devolutionary settlements, they could not have designed a piece of legislation better guaranteed to do so.
That the Secretary of State in Whitehall should claim the power to legislate by regulation to interfere in devolved areas of government and to impose restrictions in different parts of this Union on the right to strike in transport, education, health and other public services in Scotland and Wales is more than unwarranted. It is more than inappropriate. It is a deliberate provocation and offence.
John McDonnell (Hayes and Harlington) (Lab)
Would my hon. Friend like to comment on why the Government have refused even to agree to the super-affirmative procedure?
Barry Gardiner
That is quite simply because they are introducing a party political measure that is designed to provoke this House.
I call on all Conservative Members, if they care about the Union at all, to vote against this wrecking ball of a Bill, which will only provide succour to those voices seeking to destroy our constitutional settlement and our United Kingdom. Under the Bill, the employer has the unilateral right to identify in a work notice the individual workers required to operate the MSL. A worker who refuses to comply after having been requisitioned in this way will lose unfair dismissal protection.
The Government are thus authorising employers to do what not even a court in this country can do. Under the Trade Union and Labour Relations (Consolidation) Act 1992:
“No court shall…compel an employee to do any work or attend at any place for the doing of any work.”
However, once the union is notified of the identity of the workers to be requisitioned, the Bill requires the union to take “reasonable steps” to ensure that all its members identified in the work notice comply with it. It is ironic that, under the Bill, the same trade union may be required to discipline or expel—
Mr Deputy Speaker (Mr Nigel Evans)
Order. I am terribly sorry that I had not given notice, but we are going down to three minutes to get as many people in as we possibly can.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
I should first declare that I am a member of the British Medical Association. As an NHS consultant paediatrician and a member of the Health and Social Care Committee, I take a great interest in the Bill and particularly in its impact on health. During my career, I have worked—indeed, I continue to work—with many fabulous NHS staff. However, as many hon. Members have rightly pointed out, the pay rise of over 19% demanded by the Royal College of Nursing is simply unaffordable.
The pay rises being demanded would also continue to drive up inflation at a time when the Government are working night and day to keep it down. Because of the way in which NHS staff are paid, we cannot give one group a pay rise without giving it to others in the same pay band. Although different unions give the impression that they are negotiating separately—the ambulance staff, the nursing staff, the middle and junior managers—in reality, they are all on the same banding scheme. A rise for one is a rise for all, with each 1% rise costing £700 million.
It is clear that the Opposition seem to have misrepresented the Government’s policy as an attempt to take away the right to strike, when that is so clearly not the purpose of this legislation. When it comes to the NHS, it is not right that those who are in desperate need of medical care cannot get an ambulance or receive care because of strike action. These are measures designed to protect lives and ensure that people who face an imminent threat to life or limb have quick access to care and treatment. How could anybody not want such care to be received? That is why minimum service levels are individually negotiated by the various ambulance services, but that leads to inconsistency across the country. A pre-agreed national minimum level will help to improve patient safety.
Another reason we need minimum service levels is that legislation on striking services does not require people to say whether or not they are striking. That has recently meant a situation in which people organising ward rotas have not known who is turning up to work, which makes it very difficult to plan even minimum services for shifts. That is all very well when you are dealing with parcel deliveries, but when you need a certain number of people to care for acutely sick people, it is vital to be able to plan. A minimum service level allows that.
Furthermore, the Opposition are suggesting that the Government want to sack people for striking. That, again, is a gross distortion. Striking is a collective decision; that is why it is voted on. The Government’s measures apply to those who, having agreed to be part of a minimum service level, then do not turn up to work. That would be a dereliction of duty under any circumstances, and in practice we all know that it is not going to happen, because NHS staff would simply never do that.
It has been clear for some time that Opposition Members are not brave enough either to say how much they would offer the unions or to criticise the strikes, even when they so clearly threaten the lives of their constituents. It is perhaps no coincidence that the unions behind the recent ambulance strikes are some of the Labour party’s biggest donors. In the meantime, the Government, my Back-Bench colleagues and I will continue to serve our country and our constituents. The first duty—
Sarah Champion (Rotherham) (Lab)
I rise to speak as a proud trade unionist. I have been a member of a trade union all my working life, so I completely fail to understand the division that Government Members are trying to draw between union members and workers. The general public are not buying it either.
Our nurses, teachers, doctors, paramedics, rail workers and firefighters have all worked consistently hard over the past decade, particularly since covid, yet they face real cuts in their pay and drastically worse working conditions. NHS nurses are earning £5,000 a year less in real terms than in 2010; for midwives and paramedics, the drop is more than £6,000. We need to retain workers in those professions, but instead they are being driven away by the Tories running our public services into the ground. Instead of trying to resolve the issue at the heart of these strikes, this Government are undermining workers’ basic right to strike and are trying to turn the public against them. It is not working.
I am deeply concerned by the sweeping powers in the Bill, which will allow the Government to dictate what the minimum level of service should be in a given industry, with only a meaningless requirement for the Secretary of State to “consult” whoever they consider “appropriate”. It is disgraceful that employers will have the ability to pick and choose which individuals will be compelled to work and forced to cross a picket line or be sacked. That is not a balanced or fair approach, nor will it resolve any of the core issues that workers are trying to raise through these strikes.
There are already more restrictions on strikes than ever before, and they are being followed to the letter, so the strikes that are going ahead have already met the legal requirements. Steve Rice, the head of the GMB union’s ambulance committee, recently wrote to the Prime Minister to call out his dangerous claims that ambulance workers are putting lives at risk. Surely the Prime Minister knows that unions have been working with NHS trusts to guarantee emergency cover during the strike action; if he does not, that is really quite damning. In reality, on 21 December, when GMB ambulance workers undertook industrial action, the proportion of patients delayed for over an hour actually dropped significantly, so where is the evidence that striking essential workers are not already providing the minimum level of service? It is not there.
I understand any fears that the public may have of not being able to access emergency healthcare when they need it, but the Government should be honest with constituents rather than demonising hard-working staff who want to be able to provide the best service possible. Better yet, the Government should meet workers to negotiate and understand their concerns instead of dismissing them. It is not striking workers who are causing the crisis in the NHS; it is a decade of Tory mismanagement.
Nick Fletcher (Don Valley) (Con)
I believe in the right to strike. I do not think strikes work, but I do believe in them.
I was brought up in Doncaster. As a young man, I saw the picket lines, the oil drums and the people—mainly men—standing around trying to keep warm. They were trying for an extra 4% or 5% on their wages, with the unions backing them. Often they won—they often got that extra bit of a pay rise that they wanted—but move forward five or 10 years, and what did we have? We had closures. We had thousands and thousands of redundancies, and closures. That is what happens when people go on strike.
The customers of the industries on strike were not paying while those services were being taken away, but my constituents do not have a choice. They have to keep on paying, and when they pay they expect a service. They pay whether they get the service or not, and this Bill is before us now because the unions are taking advantage of the place in which the country finds itself through no fault of its own, just as they did in the 1970s and 1980s.
I have employed many people in my life. There have been times when we have had too much work and times when we have had too little, but neither my staff nor I have ever abused the upper hand. The unions are, I believe, abusing the position in which the country finds itself. They are trying to hold the country to ransom, and the Opposition are backing them because they are donors.
We are legislators, and we should legislate only when there is an issue that requires our intervention. This appears to be one of those moments. I understand that the Government will be seeking talks with unions and employers to see where the level of minimum service sits, and I hope that those talks are entered into with the right spirit and a voluntary arrangement can be made. If such an arrangement can be made, it should be, and then we can all move on quickly and get our country back on its feet.
Let me once again thank all the nurses at Doncaster Royal Infirmary, who voted against striking because they know that their best efforts are made while they are at work, not while they are on picket lines.
Mhairi Black (Paisley and Renfrewshire South) (SNP)
I am not funded by unions—or Russia—so before I even get on to the Bill, it is important for me to highlight the fact that the laws on trade unions in the UK are already among the most restrictive in Europe. Ministers claim that such Bills are common in France, Spain and Germany, but they leave out the fact that this Bill is much harsher than any of the examples that they cite. UK workers will lose their automatic protection from unfair dismissal, for instance. Ministers also claim that the Bill is about ensuring that a minimum level of service is available for the health and safety of the public, when they know fine well that life-and-limb agreements are already in place.
The truth is that this Bill is designed to undermine and attack both workers’ rights and democracy. It carves out yet another door through which Westminster can further erode and undermine the Scottish Parliament. It is so bad that it might fall foul of the European convention on human rights, which protects the right of workers to assemble as they wish—the very same convention that the Tories want to take us out of. I wonder why.
Hannah Bardell (Livingston) (SNP)
Are we not seeing a pattern of behaviour? When the Government could not reach the child poverty targets, they scrapped them. What they are doing now is moving the goalposts and introducing a hostile environment and hostile legislation to attack workers’ rights and human rights.
Mhairi Black
Absolutely—and that leads me neatly to my next point.
I have previously spoken about the dangers of sleepwalking into fascism if we are not careful. I did not say it lightly then and I do not say it lightly now, but history is undeniable. The slide into authoritarian and anti-democratic politics has always been underpinned by anti-trade union rhetoric. Over the years, we have listened to countless right-wing politicians and Governments claiming that Brexit would in no way affect workers’ rights, yet here we are.
The reason trade unions organise industrial action is that it works. It has always been the only language that those who hold power understand. The only reason any worker has any rights at all is the existence of trade unions, and the ability of workers to organise collectively in defence of their jobs and their livelihoods. People who bleat about the disruption that strike action causes are missing the point entirely. If your day is disrupted by someone not turning up to their job, it just goes to show how crucial that person’s job is, and why their pay and conditions should reflect that.
There is another myth that I have heard. In fact, people do not undertake strike action lightly. Strikers lose money. Strike action indicates a crisis. Our nurses, doctors, teachers, cleaners and supermarket workers are the very people who have kept the world turning through a global pandemic, a cost of living crisis and 13 years of Tory austerity, but this Government choose to ignore and demoralise them at every turn. This Government would rather blame striking workers than acknowledge the fact that the root causes of strike action lie directly at their door. We have the lowest pensions and sick pay in Europe, we still do not have a living wage and we are living in economic chaos, with inequality getting worse.
The only people who are putting the health and safety of the public at risk are the members of this Government —a Government run for Twitter; a Government of clicks and culture wars, with no serious answers. Ultimately, trade unions work, and that is exactly why the Tories are going after them.
Clive Efford (Eltham) (Lab)
I withdrew, Mr Deputy Speaker, because I was not present for the opening speeches.
Christine Jardine (Edinburgh West) (LD)
Not at all, Mr Deputy Speaker! But thank you very much.
I rise to speak in opposition to this Bill. I am not currently a member of a trade union, I have never been a trade union official, and I do not get any money from a trade union. Last week I even found myself—much to my own surprise—in agreement with the Secretary of State when he said to the House that when we need an ambulance, we need to know that one will turn up. I agreed with that, but I did not agree with the context in which he meant it. We should be able to rely on such a service all the time, not simply when there is a strike on.
I would even have continued to agree with the Secretary of State, and I could even have found myself thinking about supporting the Bill, if I had felt that it was an attempt to address the problem, but it is not. It not about problem solving; it is political posturing. It is an empty, detail-light, vague promise of a mandatory minimum level to replace existing voluntary arrangements. It will simply ramp up the rhetoric, without saying how anything will be achieved or offering any progress towards the solution that the public need.
None of us—those in this place, those at home watching television, those working on the railways, in hospitals or in any other sector, or those working as teachers—wanted this wave of strikes, because it further undermines recovery in those sectors, which were already stretched before the pandemic. Let us not get into the argument about whether the pandemic or the war in Ukraine is causing this, because neither is the case. The cause of these strikes is the deterioration in our public services that the Government have not just allowed but, at times, seemed to foster—and what are they doing? They are introducing this Bill, which is somewhat akin to taking a mallet to peel a peach.
The Bill will not undo that deterioration, and it will not help our public sectors. Already too many people go to sleep at night worried that if they have a heart attack or a stroke there will be no ambulance, and the Bill does not attack that problem. The reason we have a crisis this winter is this Government’s inaction. They have failed the workers in the public sector. It is nothing to do with trade unionism; it is to do with the Government’s failure. We always say that when there is a strike, it is a failure of both sides. It is a cliché, but the thing about clichés is that we use them because they are usually right. These strikes are a failure. With this Bill, the Government are doing nothing to undo that.
Cat Smith (Lancaster and Fleetwood) (Lab)
I declare my interest as a member of a trade union, and as a politician who has received donations from trade unions to my constituency Labour party. I am proud that all that is declared on public record.
My constituents want a minimum service level when it comes to transport. Unfortunately, they are served by train companies such as Avanti or TransPennine Express, so even when it is not a strike day, getting a train on time is sometimes impossible. My constituents want to know that when they phone an ambulance it will get there in time, but the reality for many constituents I have heard from, particularly in rural parts such as Preesall and Knott End, is that when they phone an ambulance, the waiting times not on a strike day are already unacceptable.
This legislation is not an attempt to fix our public services and to resolve the disputes that are raging around the country right now; it is to distract from the failure. This piece of legislation has come with no consultation and no impact assessment. This Government have come forward with no employment Bill that could actually outlaw fire and rehire or that could ensure that people have decent rights at work. That could go a long way to fixing the broken relationship that seems to exist and that this Government seek to stoke with the legislation before us tonight. These disputes will be resolved only by negotiation and reasonableness. By introducing this legislation, the Government do nothing but stoke that division. The legislation just makes strikes more likely to happen. Where minimum service levels are in place on the continent we see more days lost to strike action, not less.
In short, this legislation is draconian. It is there to sack the nurses. It is counter-productive. It will cause more days to be lost to strike action and it is unnecessary. I really do hope that the Government will, instead, take some opportunities to visit picket lines in their own constituencies and speak to those workers who are out on strike. I speak to striking workers across Lancaster and Fleetwood, such as the postal workers on Fenton Street. I know they are suffering. They are losing a day’s pay, but they are doing it because they are desperate to preserve that public service, to make sure that everyone gets decent, fair pay, a decent pension and safety in the workplace. That is what trade unions are about. I urge the Government to be reasonable and look again.
Mike Amesbury (Weaver Vale) (Lab)
I stand as a former shop steward and convener. I proudly refer to my register of interests—do have a look. I cannot begin to express my anger, dismay and disgust at this piece of draconian legislation. I send my solidarity to those demonstrating outside as we speak, as I know many in the Chamber do. They will demonstrate until we get rid of this draconian piece of legislation.
Across the country we are seeing the worst strikes in decades. Railway workers are on strike; nurses are on strike—for the first time ever the Royal College of Nursing is on strike—postal workers are on strike; bus drivers are on strike; ambulance staff are on strike; civil servants are on strike. Now, teachers are on strike, and many more. I will have missed somebody from the list because that many people are on strike.
They are striking for a reason: the cost of living crisis. The mortgages go up, the gas bills go up, the electricity bills go up and the food bills go up. They have a fundamental right. I heard some Members on the Government Benches talking about freedom, including freedom of speech. What about freedom to organise, to campaign and to negotiate for a cost of living pay rise? It is a fundamental British right. This is a real attack on democracy. Some Government Members I have worked with cross-party should be ashamed of themselves, certainly on this point.
Instead of taking responsibility and addressing the real issues, the Prime Minister is playing politics with people’s lives. Those very public servants are some of the inconvenienced public that the Government Members are talking about. Hey presto! A strike does inconvenience people. Let us stick to the facts. North West Ambulance Service workers, who I visited in the Warrington area not long ago, just before Christmas, were striking as a last resort. They did not want to do that, but they were providing the minimum level of service—life and limb. I saw the ambulances going out. I have heard lots of myths this evening about that. The current arrangements under the status quo actually work, but I will stand together with everyone tonight and vote against this draconian, disgraceful piece of legislation, and stand up for British workers and British people.
Neale Hanvey (Kirkcaldy and Cowdenbeath) (Alba)
I am speaking as a Unison member and, prior to that, someone who was a member of the RCN since 1984. I am proud to have stood on picket lines recently with the RMT, the Communication Workers Union, the GMB and the RCN. My constituents are members of unions. They are workers and they form part of all the workforce who are engaged in industrial action at the moment.
I want to give the few Conservative Members remaining in the Chamber a bit of a reality check. It is not good enough for them to say that it is everyone else’s fault but theirs, when the fault lies fairly and squarely at their door. Let me be clear: it was not this Government that did the heavy lifting during covid; it was the doctors, nurses, firefighters, railway workers, postal workers, other key workers in supermarkets and many others. It was every key worker that the Tory Government now want to demonise and threaten. They are the heroes of the pandemic, but this Government now treat them with utter contempt. What kind of a thank you is it to say, “We are going to force you to work and we will not help you any longer”? They are striking for decent pay and minimum safe levels to prevent risk to life and limb.
The Bill purports to be about minimum service levels. If only that were true. Try telling that to the NHS staff with an impossible workload or the fire and rescue teams denied access to proven vital health and safety processes. Let us take nurses as an example. In relation to minimum levels, nurses in this country work with roughly two to two and a half times the workload of that recommended by the Royal College of Midwives and the RCN. The international comparisons that the Government have set out do not take account of this intolerable workload or of the fact that patient-to-staff ratio in other countries is significantly better than it is here.
The Government pretend they are being responsible but they are being anything but. They complain about affordability, but I mentioned earlier the amount of money that has gone into the hands of the 1%. It is not $21 trillion; it is $26 trillion. All the while, the Conservatives partied and profiteered throughout the pandemic while those key workers were on their knees. The people of the UK are on their side, and striking is the only means they have to stem this vulgar neo-conservative tide of greed and restore dignity to their lives.
Kim Johnson (Liverpool, Riverside) (Lab)
I refer the House to my entry in the Register of Members’ Financial Interests. As a lifelong and proud trade unionist, I want to send my solidarity and support to all striking public sector workers. This Government have already lost in the court of public opinion because of their refusal to negotiate with striking workers, so instead of getting round the table, they are changing the rules of the game.
The Bill grants the Secretary of State unprecedented powers to disrupt striking workers by allowing management to pick and choose which of their employees should be on a strike rota on rota days to maintain a legal minimum service provision. This will essentially give managers carte blanche to target union organisers and force them to cross their own picket lines under threat of losing their job and risking financial penalties for their union for failing to meet minimum service requirements on strike days. The TUC has said it has major concerns about the significant risk of discrimination if this is pushed through. Workers fighting for their jobs, pay and conditions should not be threatened with the sack.
No worker votes for strike action lightly. It is always a last resort, particularly for frontline services. The RCN had never been on strike in its 100-plus-year history until recently, and it never did so under a Labour Government. Minimum service level agreements already exist in key life-and-limb services where health and safety is at risk. Indeed, we often hear of situations where staffing levels are better on strike days, due to legal requirements, than on non-strike days, because of the massive shortfall in NHS staffing levels.
We are facing the deepest crisis in our NHS since it began, with record waiting times, a collapse in staff recruitment and retention, patients waiting for hours in ambulances or on chairs in corridors, decades of wage stagnation and 13 years of austerity and selective amnesia from Conservative Members. A minimum service law will not solve our problems, as the Minister well knows. The Government’s impact analysis warns that the Bill could lead to even more strikes, worsening industrial relations, prolonged disputes and reduced conditions for workers.
I conclude by congratulating the National Education Union on its successful strike ballot. Its teachers are saying that enough is enough, and this Government need to recognise that.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
If Members can shave a few seconds off their speeches, it would help to get everybody in.
Tommy Sheppard (Edinburgh East) (SNP)
I ask myself what problem so afflicts the British state that its Government see fit to bring forward a major piece of primary legislation. Is it really the case that militant pickets are preventing people from getting life-saving treatment? Is it the case that callous trade unionists are refusing to negotiate life-and-limb emergency cover, and that people are dying as a consequence? The answer to all those questions is no. In fact, we know of countless stories in which trade unionists have left their picket-line protests to make sure that people do not die. When I asked the Secretary of State for Business, Energy and Industrial Strategy to say how many lives would be saved by this legislation, he refused to answer, perhaps because the answer is none.
So why is this Bill being introduced? I think the answer is quite simple. We are approaching the fag end of this Tory Government. Their poll ratings are in the toilet, their members are disillusioned and their Back-Bench MPs are increasingly despairing about their own survival. In a desperate attempt to revive their fortunes, they are trying to resurrect the strategy of the Thatcherites a generation ago. They are trying to monster ordinary working people who are fighting for their rights. They are trying to pretend that ordinary working people are other, that they are somehow against the public interest and are therefore not deserving of public support, but it will not work this time, because they have gone too far and there are too many people involved. There is not a family in this land who do not know someone caught up in this dispute and who do not recognise the justice of their cause, so the Government will not be able to do it this time round.
Hannah Bardell
Does my hon. Friend agree that, as we speak, firefighters who ran into Grenfell are suffering and dying from cancer, and it is workers like them who will be prevented from protesting and striking? That continues to be a disgrace.
Tommy Sheppard
Indeed, I do. Across the public sector we see people who, in recent years, saved us from the trials of the pandemic. These are people who should be venerated, not demonised. They should be paid, not punished.
The international comparisons made in this debate are so spurious when we look at them. Not a single country in Europe has legislation like this. The minimum standards everywhere else are negotiated. There is no other country in which a person can be sacked for going on strike if their employer says they cannot, as proposed in this Bill.
The proposals in relation to Scotland and the devolved Administrations are the most pernicious. Is it because the Government are jealous or frustrated at the fact that the Government in Scotland take a different view—that, rather than demonise trade unions, they will sit down with them, respect them and try, within the constraints, to get a negotiated deal? Are the UK Government so furious with the Scottish Government for doing that that they now see the need to export, across the border, a conflict in our industrial relations? That is what is coming, and it is a slap in the face to everyone who supports devolution. This Bill proposes that, in devolved services such as transport, health and education, the parameters for operation will not be set by the elected Parliament in Edinburgh but by this place, even if the parameters do not fit the circumstances. People in Scotland will reject these proposals, as they reject the other attempts to erode the limited power they have. And they will call for complete control of industrial relations in Scotland—
Mr Deputy Speaker (Mr Nigel Evans)
Order. Not everyone is going to get in. If Members take interventions, more people will not get in.
Andy McDonald (Middlesbrough) (Lab)
I refer to my entry in the Register of Members’ Financial Interests.
It was always going to come to this, where the ideological and deliberate attack on workers, along with the carefully choreographed under-resourcing of the public services that the people of this country hold dear over these past 13 years, which have been so blatantly carved up by the spivs and the profiteers, comes hard up against the inevitable neoliberal endgame of in-work poverty; and where workers are left with no choice other than to stand up for themselves and their service by withdrawing their labour. They do so not simply because their wages are insultingly, woefully insufficient and shrinking in value, and do not pay enough for them to pay their soaring bills, and rip demand out of the beleaguered and disastrously managed economy; they do so also in order to save the very service that they so cherish.
What is the response from this lot on the Government Benches? Instead of listening to workers and coming up with a fair deal that they can accept, or producing a plan to sustain public services into the future, they hit out and turn the screws, depriving working people of their basic civil liberties and human rights to organise and campaign for a better deal. I am proud that the Labour party has made it abundantly clear that this anti-worker, anti-trade union, “sack the nurses” Bill will be immediately repealed when Labour comes to power, and that we will bring in the new deal for working people that our people so desperately need.
This attack is not new; at every turn, especially in the Thatcher era and during the past 13 years, the Conservatives have demonised trade unions as being the enemy within, instead of seeing them as the force for good and for economic and social change for the benefit of the working class that they truly are. With their nasty, pernicious propaganda spewed out by their chums in the right-wing press, this Tory Government have delivered the biggest rallying call to working people that there has been for many a year. I urge all those workers who want to protect themselves and their industry, profession or calling to join a union today, if they have not done so already. Yes, I am urging them to take back control and join the fight for a better deal for themselves, their families and communities.
This Bill is not the way to build good industrial relations—it is the exact opposite—so this is an important moment in our history. I have no doubt that the British people will have their say in fulsome measure when they turf these dreadful Tories out of office, and that day cannot come too soon.
Ian Lavery (Wansbeck) (Lab)
Let me declare my interest as a proud member of the trade union movement—I have been all my life and will be until the day I die. People in this debate need to recognise that we should not be surprised by the actions of the Government, because they have crashed the economy and people cannot put their heating on and they cannot eat. People are struggling to feed their families and they cannot pay their mortgages. So what happens? They get together and the Tories revert back to what they believe they are best at: attacking ordinary working people; attacking the trade unions. They relish it; they love it. That is what this is about. The Secretary of State should admit it: the Tories are running scared, they are finished, they are a busted flush after 13 years of austerity. They should accept that, but no, they are attacking ordinary working people.
I think I speak for a lot of the people when I say that there is nothing in this world, and no one on this planet, that could conscript me to cross a picket line. It does not matter what legislation the Tories wish to push forward and it does not matter what rules, regulations or Government diktat they put in place, thou shalt not cross a picket line.
Let me refer, in the short time I have left, to the attacks on ordinary working people. The Government are demonising the people who brought us through the pandemic: the posties, the transport workers, the bus drivers, the train drivers, the people who work on the transport system, the nurses, the NHS workers and the ambulance drivers. These are not mad Marxist militants. They are not forced to be part of a trade union; they join a trade union. As sales of champagne and luxury yachts go through the roof, sadly, our key workers are forced to use food banks. I will oppose the Bill tonight and urge every other Member of Parliament to do so as well, out of respect for the ordinary people who brought us through the pandemic and who work hard for this country.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I refer Members to my entry in the Register of Members’ Financial Interests. I entered politics as a teaching union rep. I am still a trade union member. I am also co-chair of the Justice Unions Group and, contrary to the myth that the Conservatives like to propagate, I have taken not a single penny from the unions—I do it for political reasons and values. I am sure that it comes as no surprise, therefore, that Plaid Cymru will be opposing this reprehensible legislation tonight.
Nobody seeks to strike, least of all the workers who lose a day’s pay. The strikes of health workers are a last resort for over-worked staff who fear that patient safety is suffering because of increased demand and staff shortages. What do the Government propose to do? They propose to bring in sanctions that threaten to sack those very staff. Yet the UK Government have no interest in working with our key workers. They would rather pursue this socially divisive legislation in an attempt to distract from the daily disruption to public services caused by their own party’s butchering of budgets 365 days a year.
Perhaps the Minister can clarify whether the legislation will cause further disruption to businesses by undermining commitments made in the trade and co-operation agreement to
“protect and promote social dialogue on labour matters among workers and employers.”
It is not to reduce that legislation, but to build upon it, and that is not what we are talking about today.
It is becoming increasingly clear that our rights are not safe under Westminster control. First there was our democratic right to protest, now our democratic right to strike, and next a bonfire of the protections, hard won when workers were protected by membership of the EU.
Of course, the UK Government’s disregard for Welsh workers comes as no surprise. Last summer they announced their intention to scrap the Trade Union (Wales) Act 2017, a law passed by our Senedd to protect workers in Wales. The only way to give Wales the power to protect workers’ rights for good from relentless Westminster attacks is to devolve employment law to Wales, as is already the case, and well before devolution took place in the late 1990s, in Northern Ireland. I urge the Labour party to drop its opposition to this policy and support workers in Wales and Scotland as a matter of urgency.
In the little time that we have left, and to bring my remarks to a close, the easiest, safest and fairest way of guaranteeing minimum service provision is to ensure that key workers are able to do their jobs effectively by improving working conditions, by bringing forward the long-promised employment Bill and by giving workers the proper pay increases they need. On the question of pay, there must be recognition that public services in Wales face additional pressure due to a funding system that perpetuates high levels of poverty and the knock-on effect that poverty has on health, and the reality of having an older population than the rest of the UK. Now is the time for Westminster to recognise this and to commit to the needs that public services in Wales require.
Paula Barker (Liverpool, Wavertree) (Lab)
I refer Members to my entry in the Register of Members’ Financial Interests. I am a proud union member and I was a trade union official before entering this place.
After 13 years of Conservative Government, life for ordinary people in this country has got harder. This country is again an outlier on workers’ rights, and has been for some time. What a sad indictment of a Government who purport to be a standard bearer of democratic rights in defence of a free society. This legislation, amounting to yet another brazen attack on an already fragile settlement for workers in this country, flies in the face of the basic liberty to withdraw one’s labour. This legislation does not protect the public—quite the opposite. This Bill, hastily put together, is incoherent and unworkable, and I am sure that in time it will prove unlawful.
This bosses’ charter will make it easier to sack workers across several sectors: our paramedics, firefighters, nurses, train guards and many more. It will not make those workplaces safer. Key workers are demanding a decent settlement amid an economic crisis they had no part in creating. Those workers received the adulation and applause from Conservative Ministers throughout the pandemic, only to be abandoned, threatened and dehumanised when the going got tough. I will oppose this Bill with every fibre of my being.
It was the trade union movement that delivered the weekend, paid holidays, paid sick leave, equal pay, maternity and paternity rights, and the minimum wage. Our collective role now in Labour is to defend the trade unions, provide a voice for their members and our constituents in this place, and prevent this latest attack on our communities. If Conservative Members want to know how Labour would resolve these disputes, they should tell their leader to call a general election and we will soon find out.
Stephanie Peacock (Barnsley East) (Lab)
As a proud member of a trade union, I begin by referring the House to my entry in the Register of Members’ Financial Interests.
The proposals before us today are unworkable. They do nothing to address the reasons why workers go on strike and instead attack workers’ rights. The Government are imposing these measures as a distraction from fact that for 12 years they have given us an economy where wages have been squeezed and conditions have worsened. Let us be clear: the strikes are a result of this Government’s economic failure.
Industrial action is always a last resort. Workers on low pay do not choose to lose a day’s wage unless they absolutely have to. I know, because I have been on strike as a low-paid teacher. I know that the colleagues I taught with were concerned about not just their loss of income, but the impact on the pupils we taught. To suggest that striking is a decision that is taken lightly is simply wrong.
Going on strike is a difficult decision personally, but practically it is not easy either. We have some of the toughest trade union laws in Europe. Online voting in strike ballots is prohibited and there is a high threshold for both turnout and votes in favour. That only puts into context the strength of feeling among those workers who have voted to withdraw their labour.
Industrial action on the scale we are seeing today has not happened in a generation. In 1984, 14,000 miners went on strike in Barnsley, and 200,000 across the country, to defend their industry. We still feel the economic effects of the loss of the pits today. That was an attack on one industry by a Government determined to destroy mining in this country. This is an attack on all workers across the public sector, in a clear attempt to get workers to pay the price for this Government’s economic mistakes.
Teachers, bus drivers, rail workers, Border Force, ambulance drivers, NHS staff and nurses have all voted to strike. The Government are trying to label them the new enemy within, but these are the people who kept our country going during the pandemic. They want decent pay to provide for their families. If the Government want to get the country moving again, they will pay them a decent wage and stop threatening them with the sack.
David Linden (Glasgow East) (SNP)
Have we not been told so often throughout the course of this Parliament that one reason we do not have an employment Bill is that there is no parliamentary time? Yet when we see on television the likes of Mick Lynch and Dave Ward, who the Government seem to think have a big button to cause chaos, all of a sudden a Bill comes forward that gives huge amounts of power to the Secretary of State for Business, Energy and Industrial Strategy. Frankly, looking at clause 3 of the Bill, I would rather put Robert Mugabe in charge of the Electoral Commission than allow the Tories the opportunity to be in charge of workers’ rights.
It is already incredibly hard for workers to exercise their most basic, fundamental human right to withdraw their labour. The thresholds are already very high, and the people I stand alongside on picket lines, whether at Royal Mail or Glasgow Central station, do not want to be on strike. They are doing it knowing they will lose a day’s pay. The attitude of the Government and, in particular, this Secretary of State towards unions is about creating a wedge issue, trying to generate a huge division and pit worker against worker. The reality is that we in this country—or in these countries—already have a very large public service. As my hon. Friend the Member for Edinburgh East (Tommy Sheppard) said, huge numbers of people, in our families and in our neighbourhoods, are taking industrial action.
In reality, this legislation is not necessary. It is not national security legislation. It does not have to be rushed through in a day. The tawdry programme motion would ram the Bill through in the space of five hours even though we would be radically altering people’s terms and conditions and their ability to work. That raises bigger questions about the direction of travel that this Government have taken.
As colleagues have said, the Government already want to remove people’s ability to protest and the ability of the Scottish Parliament, which is democratically elected, to vote. Tonight, they are seeking to block legislation that has been passed by two thirds of that Parliament, which has legislative competence. This Government are going in the wrong direction. Frankly, to respond to the hon. Member for Brent North (Barry Gardiner), this makes the case for us. It is why we and the people of Scotland do not want to be a part of this absolutely crumbling democracy that has no legitimacy in Scotland.
Mr Deputy Speaker (Mr Nigel Evans)
I am really grateful to those of you who have kept your remarks to well under three minutes; it is good.
Zarah Sultana (Coventry South) (Lab)
I refer the House to my entry in the Register of Members’ Financial Interests and declare that I am a proud member of Unite the Union.
Politics costs money, and I am proud to be backed by organisations that represent the working class, rather than by the billionaires, oil and gas profiteers and big businesses that bankroll the Conservative party. They represent no one but themselves. There was a brief period in the pandemic when we all recognised who keeps our country running. It was not city bankers, hot-shot lawyers or big business executives; it was the people who drive our buses, sweep our streets, post our mail, teach our kids and nurse us back to health. Briefly, even Conservative Members thanked them. They called key workers “heroes” and clapped for them when the cameras were rolling. But as keyworkers knew, clapping does not pay the bills and, after a decade of falling wages, they could not go on. As the cost of living soars, workers are saying, “Enough is enough” and demanding a better deal. Of course, the Government’s line has changed. Conservative Members are now calling workers greedy and selfish. They have started pitting workers against each other, saying that railway staff should not get a pay rise if nurses do not, but that nurses were not allowed one either. Now they have stooped to an anti-worker Bill that threatens the civil liberties of us all.
This new law would see key workers such as nurses, railway workers, firefighters and teachers fired for going on strike—from clapping nurses to sacking nurses. The Government say that it is about safety, but that word is not mentioned even once in the pages of the Bill. They say it is about bringing us in line with other European nations, but Britain already has some of the most restrictive anti-union laws in the western world. No matter what they say, it is definitely not about resolving current disputes; it is only about inflaming tensions and making negotiations harder. What the Bill is really about is shifting the balance of power: weakening the power of workers and making it easier for bosses to exploit them and for the Government to ignore them.
I will finish with a message to those watching at home who are not sure about the strikes. If your pay is too low and your bills are too high, if you are struggling to make ends meet, and if you cannot get a doctor’s appointment, you are not alone. But the problem is not striking workers, immigrants, refugees, trans people or whoever the right-wing press are scapegoating today. The problem is this Tory Government, their 13 years of disastrous rule and the rigged economy they have built. Alongside record numbers of food banks, Britain has record numbers of billionaires, record profits for big businesses and record wealth for the top 1%. Let us bring together everyone who has had enough and, from the picket line to Parliament, let us fight for a better deal.
Claudia Webbe (Leicester East) (Ind)
I rise to speak as a proud trade unionist, which I have been since I was 16 and will be until the very end.
The Government do not care about patients, passengers, parents or the public. That is not what their minimum service levels Bill is about. It is a shameful attack on the democratic right to strike. At just six pages long, the Bill does not even set out the boundaries of what is permissible. They say that that will be decided later by the Secretary of State—not by Parliament—through regulation. Shockingly, it also gives the Government the power, without scrutiny, to override legislation made in the devolved legislatures of the Scottish Parliament and the Senedd. That is not democracy; it is government by diktat and authoritarianism writ large.
The Bill gives the Government the power to deny workers their fundamental basic human right to strike, allowing employers to bring injunctions to prevent strikes, sue unions and sack employees across the public sector—including in the NHS, transport, fire and rescue, and education—and undermining workers’ rights to a fair wage and improved terms and conditions. Strikes are a symptom, not the cause. Workers are being dragged into poverty and having to resort to strike action to make their voices heard, and this Government are trying to break them. From voter suppression and the attack on our right to protest to this anti-strike Bill, the Government intend to crush workers’ basic freedoms. Yet we live in a democratic society. Strike action is the tool of last resort and the best negotiating power workers have against unscrupulous and callous employers. The Bill seeks to erode the rights of trade unions to organise, and to drive fear through the very soul of workers who could lose their protection from dismissal.
Our trade union and employment rights legislation is already weak. For evidence of that, we have only to look to some of Leicester’s garment industry, where workers are still being paid less than the minimum wage, on zero-hours contracts, in Victorian workhouse conditions. No enforcement agency is able to break the scandalous mistreatment of workers who are fearful and whose powers have been weakened to near silence. In today’s Britain, not a single garment factory in Leicester will recognise a trade union.
In the same way, the Bill seeks obedience at the will of the state. It allows for the punishment of unions and workers who do not comply with a so-called work notice. The Bill is not about providing a basic level of service to the public; it is about breaking the growth of the trade union movement. The right to strike will be controlled by the state and permissible only on Government terms. To resist will mean to be liable to huge penalties.
The Bill is a threat to our basic rights. It is draconian, dehumanising and bullying. It is class war. For the sake of our hard-won freedoms, we must stand firm.
Sam Tarry (Ilford South) (Lab)
I proudly draw the House’s attention to my entry in the Register of Members’ Financial Interests.
It should be recorded in this House that, in our country’s history of progress, it was the trade unions that ended child labour, it was the trade unions that made workplaces safer, and it was the trade unions that gained us holidays, maternity and paternity pay, paid sick leave, equal pay legislation, pensions, workplace anti-discrimination laws, and even the weekend. The Government would do well to remember that trade unions have made an immensely positive contribution to society. A strong trade union movement is the cornerstone of any healthy, functioning democracy and a more equal, fair and prosperous society. The good news is that trade union membership is on the rise, with a net increase of 200,000 members over the past three years and online inquiries to the TUC surging by 700% this summer. Organised labour is back and it is going absolutely nowhere.
Shocking leaked emails from this Government show that Ministers are deliberating on an outright ban on trade union membership and strike action, and even introducing further restrictions on the democratic right to withdraw labour. Why might that be? Striking workers in various sectors—from bus drivers to BT engineers—have won for themselves double-digit pay rises, as well as better conditions and an end to outsourcing, while public support for strike action is at an all-time high. Many trade union leaders are more popular than any Government Minister right now, in 2023.
The Government’s own impact assessment of the Bill says that it could mean that more action is taken more frequently, as a way to pressure employers. In rail, the Bill seems particularly short-sighted and even at odds with what many train operating companies want. What happens when, as Mick Whelan from ASLEF asked, 100% of passengers try to get on 40% minimum service level trains? Ultimately, the Bill will do nothing to help resolve disputes or support good industrial relations; in fact, it will do absolutely the opposite.
Last week, the Secretary of State told me that ILO common practice authorises minimum service levels, but he neglected to mention that the ILO imposes restraints on the circumstances in which such powers can be used, the antithesis of the blank cheque that the Bill will give him and other Ministers. This Government’s attempts to draw comparisons with minimum service levels in Europe wholly ignore the broader context of industrial relations across the continent, where there are far higher levels of collective bargaining agreements. In fact, I would say that these proposals are more akin to the practice in countries such as Singapore and Turkey, where strikes can be undermined at the whim of the Government. It is totally disingenuous to suggest otherwise.
The Bill will give Ministers extraordinary powers. Firefighters, nurses, teachers and the same key workers the Government have praised will find themselves liable to be prohibited from striking. It is unnecessary. We should not be back to the days of the Tolpuddle martyrs.
Mr Deputy Speaker (Mr Nigel Evans)
It is half an hour before the wind-ups start and there are more than 10 Members wishing to speak, so do the maths. Please come within the three minutes in order to get everybody in.
Chris Stephens (Glasgow South West) (SNP)
I refer to my declaration in the Register of Members’ Financial Interests, my position as chair of the PCS parliamentary group and my membership of the Unison Glasgow City branch.
The Government started with clapping workers on their doorsteps and they are ending with clapping them in irons. Each of the staff mentioned in this Bill worked hard to protect our communities through crisis after crisis, but if they now wish to protect their own families, they are being threatened with dismissal. The false respect shown to them for their dedication and commitment has now become the removal of their most fundamental human rights.
None of the countries that Government Members have mentioned—they have also mentioned the ILO—imposes these restrictions on balloting or these notification requirements for strike. If the Government want to be consistent about the ILO, let us bring back the Trade Union Act 2016 so that we can discuss those thresholds and restrictions.
Another problem with the Bill is arbitration. In Europe, there is a social partnership model, so workers and employers try to reach agreement on things, but the Bill’s proposals seek to remove the Central Arbitration Committee and turn co-operation into conflict. We are now being advised that this Secretary of State would be the sole arbiter—this Secretary of State whose arrogant and ignorant performance this afternoon showed us everything that we always suspected: the Government are clueless when it comes to industrial action. This is a Secretary of State who tweeted last year calling the weekend a non-strike day and he is to be the arbiter of this. As Denis Healy once said, there are some people who should be gobsmacked at birth.
Trade union activists could be used as a weapon, with them picked to be the ones attending work, so that they will be the ones challenged to cross a picket line, and if they do not do so, they will be dismissed. That is a completely disproportionate action. In Europe, the norm is that they would lose their pay, which would seem more proportionate than automatic dismissal, with no protection to take that matter forward to industrial tribunal. I will be fundamentally opposing this Bill today, tomorrow and any other day of the week.
Matt Western (Warwick and Leamington) (Lab)
I refer Members to my declaration in the Register of Members’ Financial Interests that I am a member of Unison.
My constituent, Peter, died in February 2021. He was a proud railwayman. He lived in Leamington and he died of covid. He worked on the frontline through the pandemic. I saw him every week. Like many of the public, I was only able to get to my place of work because of people like Peter, Charlotte, Joe, Nick and others. Elsewhere, emergency service workers, healthcare workers and other frontline workers held this country together, and they are why I want to speak tonight.
We were urged to clap. Meanwhile, the Prime Minister partied. Emerging from the worst of the pandemic, these workers deserve not just our gratitude, but the right reward. The public understand that, and they want resolution to the disputes. They want due recognition for those workers, because the public also understand that, after 12 years of pay frozen or near frozen through austerity, they deserve better. The public know that for many, real wages have fallen since 2010. Nurses receive £5,000 less in real terms. We have the highest inequality of major nations in Europe.
The great irony is that this Government are incapable of meeting minimum standards or service, with the serial breaking of the ministerial code, two Prime Ministers breaking the law and a Government who illegally prorogued Parliament. The public know that this legislation is not necessary. It is a deliberate attempt to distract and to divide opinion, and a further attempt to erode workers’ rights. If Peter were still with us, he would be standing by his colleagues, and he would be striking. It is for Peter and for all those workers that I will be opposing this legislation.
Gerald Jones (Merthyr Tydfil and Rhymney) (Lab)
I, too, refer the House to my entry in the Register of Members’ Financial Interests. I am a lifelong trade unionist and a proud member of the GMB and USDAW.
This is truly a winter of discontent visited on the country by the Conservative Government. Railway staff, posties, ambulance staff, bus drivers, border staff, highway workers and driving examiners are on strike, and, for the first time in their 106-year history, so are nurses. Rather than threatening hard-pressed workers, the Government should be sitting around the negotiating table and trying to secure a solution. I support the trade unions and colleagues at the TUC who work tirelessly day in, day out to make life better for working people.
The Bill is a mark of the Government’s failure: they have failed to engage in effective negotiation and now they think that they can legislate their way out of the mess that they have created. Clearly, this is about trying to divert attention. The Government know that the Bill is unworkable and impractical. The Transport Secretary admits that it will not work and the Education Secretary does not want it. It represents one of the most restrictive and interventionist attacks on the right to strike for generations. The Government’s proposals are simply undemocratic. The Bill is clearly not about public safety; as we have heard time and again, it does not mention safety once. We all want minimum standards of service and staffing in the NHS and on our railways, but Ministers are failing to provide it at all with their abdication of responsibility.
Collective bargaining is widely recognised as the most effective route for delivering sustainable pay increases; tackling inequality at work; and promoting investment in skills, training and productivity. Rather than adopting the worst practices from other countries, the Government should commit to improving workers’ rights by putting an end to exploitative fire and rehire tactics and promoting collective bargaining.
As a Labour Member of Parliament, I am proud to be working alongside our trade unions to secure a Labour Government, who would provide a new deal for working people and oppose any attempt to undermine trade unions or workers’ rights. A new Labour Government would repeal these measures and sign an employment Bill into law within the first 100 days. When in power, we will end the Tories’ strikes chaos with a new partnership of co-operation between trade unions, employers and Government, so that issues are resolved before strikes. Workers in Britain know that Labour is on their side, so let us have that general election and let us have it now. I will oppose the Bill tonight.
Mick Whitley (Birkenhead) (Lab)
I join many of my hon. Friends in declaring an interest in the register. I am proud to be a member of Unite the union and to have spent more than 54 years of my life in the labour movement, fighting for workers on the shop floor as a steward and convenor, and across the north-west of England as a Unite regional secretary.
The Business Secretary sought to assure hon. Members that the Government will “always defend” workers’
“ability to withdraw their labour”.—[Official Report, 10 January 2023; Vol. 725, c. 432.]
I can only conclude that, in his rush to steamroll the Bill through the Commons, he has neglected to read it, because it sets out to do the direct opposite—to deny working people their democratic right to engage in lawful and legitimate strike action.
Last week, I warned that the Government are attempting to achieve through legislation what they have been unable to secure in negotiations with the trade unions, but the Business Secretary is gravely mistaken if he believes that the Bill will put an end to the wave of industrial action that we are now witnessing. It is not a recipe for harmonious workplace relations, but the exact opposite. Indeed, this draconian response to the same key workers who Ministers applauded through the pandemic will only strengthen the strikers’ resolve while forcing unions to find more creative and disruptive ways to make their voices heard.
The Business Secretary must also understand that the labour movement is prepared to fight these proposals all the way through this House and in the other place, through the courts, and through workplaces all over the country. He believes that he can bully working people into submission; we will prove him wrong. Soon enough, the Government will find themselves in court having to explain how the Bill can be reconciled with the UK’s obligations under the European convention on human rights, not to mention convention 87 of the International Labour Organisation.
The legal minefield awaiting Ministers in the court of law is nothing compared with the reckoning that awaits them in the court of public opinion. The British public do not support this Bill. When they see the architects of austerity condemning frontline workers for striking for fair pay, they know whose side they are on. They recognise that the issues now driving ambulance drivers, nurses and firefighters to the picket line—from low pay to unsustainable workloads—are the same issues that they face in their own working lives, and they understand that strikes are not to blame for our broken rail network and overwhelmed hospitals. These strikes are not the cause but rather the symptom of a crumbling public sector that has been hollowed to its core by 12 long years of Tory cuts.
Rebecca Long Bailey (Salford and Eccles) (Lab)
I refer to my entry in the Register of Members’ Financial Interests as a proud member of Unite the union.
“The trade unions are a long-established and essential part of our national life. We take our stand by these pillars of our British society as it has gradually developed and evolved itself, of the right of individual labouring men to adjust their wages and conditions by collective bargaining, including the right to strike.”
They are not the words of a trade union giant, nor even of a Labour politician. They are the words of the late Winston Churchill, but today his own party intends to unashamedly deny workers the very fundamental rights that he believed in with a Bill that threatens key workers with the sack for simply exercising their right to raise the alarm on low pay, erosion of terms and conditions, and grave concerns over the safety and future of their sectors.
Worse still, the Government do this in the full knowledge that the provisions of the Bill are almost certainly illegal. That includes breaching the Human Rights Act 1998, the European convention on human rights, International Labour Organisation conventions and various other statutes. The Government shamefully claim that the reason behind this legislation is that NHS trade unions were not providing minimum service agreements on strike days. That just is not true. Our ambulance workers, like our nurses, have never gone on strike without first putting agreements for life-and-limb cover in place. It is therefore no surprise that the Government have refused to publish any required impact assessments. What is even more absurd is the notion that this Bill will somehow reduce the propensity for strike action. We only need to look back in history to know that such authoritarian legislation has the opposite effect.
Instead of introducing this Bill, the Government should be listening to the concerns of key workers and facilitating negotiations. Instead they seek to divide a nation and demonise, demoralise and even threaten to sack the very workforce who have tried to hold our country together. Returning to Winston Churchill, there are no Winston Churchills on the Government Benches today, and I have no doubt that he would be absolutely devastated and disgusted that his party is treating our workforce with such disdain.
Richard Burgon (Leeds East) (Lab)
I refer the House to my entry in the Register of Members’ Financial Interests. I was also a trade union lawyer for 10 years before being elected to Parliament.
This Bill comes in the context of an attack on the right to vote, an attack on the right to protest peacefully and, now, an attack on the democratic right to strike. I want to read out what Human Rights Watch said last week:
“In 2022, we saw the most significant assault on human rights protections… in decades”.
It went on to warn that
“fundamental and hard-won rights are being systematically dismantled.”
In the light of that, I want in the time I have to look at a few key provisions in the Bill, which is part and parcel of that authoritarian attack on our hard-won rights. The very first clause makes no bones about it. Clause 1 explicitly says that the Bill is about restricting
“the protection…to trade unions and employees in respect of strikes”.
Moving on to the schedule, it talks about the
“Power of Secretary of State to specify minimum service levels”.
The Bill does not specify what the minimum service levels should be, so we have to ask ourselves this question: do we think it is right to hand to the Secretary of State as an individual the power to make such decisions? What level of service requirement would be seen as going too far in the eyes of an anti-union, union-bashing, right-wing Conservative Secretary of State—40%, 60%, 85%, 90%—if there is some trouble in the Tory party, and they want to throw some red meat to their hard-right Back Benchers and party members? This should concern us all.
We then move on to the broad categories of the services covered. How will “education services” or “transport services” be interpreted? Very widely I expect. The Bill states that a work notice must
“identify the persons required to work during the strike and…specify the work required to be carried out”.
This is chilling authoritarianism. Workers who lawfully voted to strike will be ordered to go to work. That is chilling. Finally, work notices offer no protection if a union fails to take reasonable steps. That completely changes the role of trade unions. It is absolutely appalling. Trade union officials will be expected outside the workplace on picket lines, telling workers who voted lawfully to strike to go to work. That completely subverts and changes the role of trade unions and attacks them as institutions. This Bill is appalling—it needs to be dropped.
Margaret Greenwood (Wirral West) (Lab)
I stand as a proud trade unionist in solidarity with my constituents who are taking strike action, and with workers across the country. We are seeing widespread strikes in the public sector because of the abject failure of more than 12 years of Conservative government. The Government have pushed nurses, ambulance workers and other dedicated NHS staff to the brink. They are taking strike action not only on pay, but as part of their campaign for patient safety and, as they have told me, to save the national health service. The Government now want to repay them by threatening to sack them for doing so. My constituents have written to me to tell me that they are appalled. The Bill is a shameful attack on the rights of working people. Richard Arthur, head of trade union law at Thompsons Solicitors, said:
“The introduction of minimum safety levels does not comply with the United Kingdom’s legal obligations under Convention No. 87 of the International Labour Organisation on Freedom of Association and Protection of the Right to Organise, and Article 11 of the European Convention on Human Rights.”
He is one of many who expect there to be legal challenges to the Bill.
Last October, the Government published the Transport Strikes (Minimum Service Levels) Bill, allowing minimum service levels to be introduced during strikes in certain transport services. It seems that that Bill has now been superseded by the one we are debating. In the European convention on human rights memorandum that accompanied the Transport Strikes (Minimum Service Levels) Bill, the Government set out why minimum service requirements would not apply to other sectors. Just a few months ago they were clear that “important factors” already existed in other sectors
“to mitigate the impacts of industrial action in those sectors on wider society.”
For example, in health, they pointed to the fact that unions include guidance to their members on their approach to life-and-limb arrangements. So why have Ministers changed their minds?
The Government now say that they are
“introducing this legislation to ensure that striking workers don’t put the public’s lives at risk.”
That is an insult to workers who kept the country running during the covid-19 pandemic, putting themselves at considerable risk. In particular, it is an insult to nursing unions and representative bodies that worked hard to ensure that there would be cover for urgent cases during their strike. As the TUC points out, the Bill is the Government’s
“latest attack on the right to strike”,
and I will be voting against it this evening.
Beth Winter (Cynon Valley) (Lab)
I refer Members to my entry in the Register of Members’ Financial Interests as a proud former employee of the University and College Union. I am also a proud member of Unite.
This Bill exposes this Tory Government’s contempt and disregard for working people, whose difficulties have been caused by them. Its purpose is to dismantle the trade union movement and workers’ rights, and it entrusts yet greater powers to the Government. It is authoritarian and an affront to democracy. The Bill does not establish minimum service levels for strikes. Those will follow in regulations, deprived of the proper scrutiny afforded to primary legislation. It does not ensure the safety of the public in times of industrial action—unions in relevant sectors already do that. So what is it for? As Mick Lynch of the RMT has said, this law is “a form of conscription” that would allow employers to choose how many striking employees they wanted to force to work.
The Conservatives have spent 12 years creating a low-pay Britain. Now that trade unions are effectively organising to lift people’s pay, the Tory party is concerned that it has lost control, and wishes to restore it. The Bill allows employers to sack individuals for participating in legitimate industrial action. It enables employers to sue trade unions for not forcing workers to cross the picket line, placing unions at risk of incurring significant costs that could cause the demise of trade unions. It will give enormous powers to the Secretary of State and to employers.
The Bill is also drafted without necessary detail or substance. There has been no consultation and no impact assessment. It is an imposition to weaken and even dismantle the trade union movement.
The UK Government are introducing a Bill that will overrule the powers and policies of the devolved Governments as the Welsh Government introduces a social partnership Bill. As Welsh Government’s Counsel General, Mick Antoniw, said:
“It is a fundamental attack on freedoms, and as Welsh Government we will give it no credence or support”.
Having sat in the Chamber and listened to all contributions intently, I must take issue with the myths propagated about, and vilification of, our key workers and trade unionists. All people want is fair, decent pay, terms and conditions and to protect our vital public services. Surely all of us in the Chamber should support that. I will oppose the Bill this evening.
Mr Deputy Speaker (Mr Nigel Evans)
Order. I ask those who took part in the debate please to come to the Chamber for the wind-ups, which will begin no later than 9.40 pm.
John McDonnell (Hayes and Harlington) (Lab)
I refer to my entry in the Register of Members’ Financial Interests. I would be worried if I did not—that would show that my constituency Labour party fundraising strategy had failed.
It is important that the Conservatives know this. We know what the motivation for the Bill is. Do not insult the intelligence of this House or the British people by saying that it has anything whatsoever to do with emergency measures. We have all negotiated those over the years—they have been in existence for decades, since the beginning of the trade union movement.
The motivations are these. First, the Bill is an attempt to try to threaten those in negotiations at the moment. Well, that has really worked: today, nine out of 10 teachers voted for industrial action. The second was the usual distraction. In the past, when Tory Governments were failing, they would usually create a war and send a gunboat. Mrs Thatcher then decided that the real enemy was within. We have heard that same language today of trade union “barons” holding the country to ransom—all of that. That is distraction. The real motivation is the one that they have had since the 1980s, which is to shift the balance of power from labour to capital and from workers to employers. That strategy has worked. It has worked so well that it has impoverished working-class people, and that is why they are coming out on strike. They cannot survive on the wages that they have got.
Labour Members will oppose the Bill in this House. There will be opposition in the other place as well. Labour will scrap the Bill as soon as we get into power. But I warn the Conservatives of this. The real opposition will not come in here; it will be out there. It will be from working people—trade unionists. When the first trade unionist is sacked and the first trade union is fined, the Government will foul the industrial relations of the country for a generation, and the people will be out there. I will be out there with them.
Rachael Maskell (York Central) (Lab/Co-op)
It is an honour to be a Unite and GMB member—I point to my entry in the Register of Members’ Financial Interests—as well as the former head of health at Unite, negotiating level of service agreements. I have never heard such misinformation as I have in the House today. Amid an economic crash and public services on their knees, we know that the morale of working people on the frontline is at rock-bottom as they are stressed out of their minds and struggling with low pay. This reckless Bill not only impacts on them but sours industrial relations and does nothing to resolve disputes. In fact, it will stoke more strikes and push workers into working to rule. The Minister will then have a problem on his hands as he learns how much unpaid overtime working people give.
The strikes are the canary in the mine of the biggest retention crisis in the history of our public services. Ministers should heed those warnings before things get even worse. Tonight, I am proud that we are voting against this regressive legislation, because I would rather have clinicians and frontline workers negotiating safety agreements than Ministers in Whitehall, who are clearly so out of touch.
When it comes to the ambulance service, there are 10 trusts, and each one negotiates its safety levels, as does each hospital and each clinic. That is because there are different pressures on each one, and it is vital that each has a separate negotiation determined locally to ensure that services are safe locally, not dictated by Whitehall. All the Minister needs to do is aggregate those negotiations to achieve those safe working levels. “Life and limb” was set out in the Trade Union and Labour Relations (Consolidation) Act 1992—he can read it for himself—where there is an obligation to ensure that human life is saved.
We know what happens on strike days: they are safer than the rest of the time. Trains are not running, hospitals are not properly staffed and there are 133,000 vacancies in the NHS, yet on strike days Christmas day cover, essentially, is provided. Hospitals that were running red, ran green on strike days. Waits for the ambulance service were cut by 10%. They were safer for the public because frontline workers really care about their patients—that is why they are still working under such dreadful conditions.
This is a sham of a Bill, while there is still a need to put money on the table, to negotiate and to resolve these disputes. I say to the Government: stop walking away and stop playing games. Get back to work and get back to the negotiating table.
Geraint Davies (Swansea West) (Lab/Co-op)
Geraint Davies, GMB, Swansea West constituency Labour party. [Laughter.]
The Tories have impoverished Britain and now working people who cannot afford to put food on the table, heat their bedrooms or pay their rent or mortgage, face a pay cut or the sack if they vote, along with over 50% of their trade union members, to defend their families, communities, towns and cities. It is an absolute disgrace. The Tories refuse to negotiate. They prefer disruption and chaos to cause political division. They just say, “Like it or lump it” unless, of course, you are a banker with a bonus, a crony with a contract or a donor with a dividend.
Our nurses witnessed thousands of their colleagues dying through a lack of personal protective equipment and, alongside that, billions of pounds given to Tory donors to provide that PPE. Nurses who spent their own money for three years to get a BSc now face a starting salary of £13.84 an hour, when they could start in McDonald’s for £12.25 without the stress and with the overtime.
The NHS faces long covid, more older people coming back from the EU, sicker people, and one in four people in poverty. It costs more to treat those people and there is much greater pressure on the system, yet the Tories turn their back and threaten NHS workers with a strike. The truth is that had the economy grown at the same rate as it did under the Labour Government, average wages would be £10,000 higher and we would not be facing this appalling situation. Instead, the Tories want strikes to create a diversion from that and to create a sort of Dickensian Britain where capital gains and labour loses.
The right to democratically vote to go on strike and not be sacked is a fundamental right. The Tories are torpedoing talks, whether on rail, the Driver and Vehicle Licensing Agency in Swansea or the nurses. They want to create strikes to cast blame, but frankly the public will not be fooled by their political attempt, in their authoritarian journey, to divide Britain. That is not who we are.
The Tories are isolating Britain. They are shaming Britain. They are dividing Britain. Britain deserves better. Britain deserves a Labour Government and a Labour Government will repeal this appalling draconian Bill.
Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)
Let me start by declaring my interests and my registrations as a trade union member.
This has been a hugely well-supported debate, with no fewer than 38 speeches from the Opposition Back Benches. As many of those speeches identified, there is certainly a pattern with this Government. When people began to protest in large numbers against their policies, they responded by making it harder to protest. When the polls turned and people made it clear they wanted to vote them out of office, they responded by making it harder to vote. Now, when paramedics, nurses, transport workers and many other professions decide, in desperation and as a last resort, to go on strike, rather than listen to them and negotiate, the Government are responding by making it harder to strike. Let me put it in simple terms for Conservative colleagues: “The problem isn’t them—it’s you.” The Conservative party has built this Britain of low pay, low resilience and insecurity, but instead of listening to the voices of the people most affected, Conservative Members have turned up today to try to take away their rights.
The Bill is not so much a proposal as an alibi. It is an attempt to deflect the blame for this country’s problems, particularly the condition of public services, away from the Government and on to the workforce themselves. It is a fairly transparent attempt to pretend that industrial action is the cause, rather than the symptom, of the poor state of public services. I think I speak for every Member on the Opposition Benches when I say that we reject that cynical attempt entirely. When we clapped key workers, we actually meant it. I can only imagine how they will feel watching this debate and having to listen to the people who crashed our economy, adding thousands to mortgage payments, giving them lectures now on pay restraint.
Imagine a police officer who has seen the Conservatives cutting the police so much that they can no longer respond to burglaries, a teacher struggling with class sizes and special educational needs and disabilities referrals, or a nurse on an understaffed ward in a busy NHS hospital this weekend. Imagine those workers hearing this Government having the audacity to talk today about minimum guaranteed levels of service. We have not had a minimum level of service from this Government for 13 long years. After 13 years of a Conservative Government, not a single public service is working better today than it was when the Conservatives came to power.
Even worse is what has happened to growth, productivity and wages in that time. Let us remember that we are not expecting to see UK wages return to 2008 levels until 2027. That is why times are so hard. That is why we are seeing so many people taking strike action—and that is despite the fact that in the UK it is actually quite hard to go on strike. We do not have a legal framework that allows industrial action to happen lightly.
Even so, many of the strikes that we have seen recently could have been avoided. Nurses have never been forced to strike in this country—until now. The offer to halt strike action before Christmas was made. All that was needed was negotiation. We needed the Government to listen, to negotiate, to work through the problems, to compromise and to lead, but that is not how this Government operate. Instead we have this Bill. As we have heard from so many of my hon. Friends today, its proposals are unnecessary, unethical and unworkable. In the brief time that I have, I will address each point in turn.
First, this legislation is unnecessary and is likely to make industrial disputes worse. Minimum service levels are not a recipe for industrial stability. What I find so abhorrent about the Bill is the assumption it makes about working people. We have heard it so many times today: the assumption that striking workers do not care about the people who rely on their services or the patients they are nursing back to health. That is completely wrong. As every one of my hon. Friends has said, in essential sectors we already see minimum service agreements being voluntarily negotiated. We have seen viral videos of workers leaving picket lines to implement those voluntary agreements. Where national agreements are not made, such as with the ambulance service, it is because they are done on a local basis, reflecting local circumstances. What this legislation will do is undermine the good will and good faith that are essential to making minimum service levels work.
We have also heard a repeated claim that the Bill will simply bring us in line with other European countries—remarkably, it seems that the Conservatives have finally found an area in which they see the advantages of common European alignment. But those countries combine their laws with much stronger employment rights, including collective bargaining, and these measures are part of that package. More than 95% of employees in France are covered by collective bargaining agreements. Additionally, it is still a poor argument because, as my hon. Friend the Member for Lewisham, Deptford (Vicky Foxcroft) said, France has lost almost six times as many days to strikes as the UK in recent times. In Spain the figure is more than double, and minimum service levels there have led to protracted legal battles, further prolonging disputes, not solving them. The evidence is compelling, if we look for it, that this approach is flawed.
Secondly, these measures are unethical. The scope of the Bill is huge, affecting as many as 6 million workers. Whether we agree or disagree with the merits of any one particular strike action, the right to strike is a fundamental right that every one of us has, except in the specific circumstances applying to occupations such as the armed forces. So many Conservative speakers have said today that they support that right, as long as the strike in question has no impact. That is meaningless. Conservatives used to worry about the power of the state over the individual, but we have not heard much of that today—and, crucially, the Conservative party has no mandate for this, because the manifesto commitment mentioned only the transport sector. That is likely to be a significant issue in the House of Lords.
Finally, these plans are unworkable. They will start a torrent of legal claims and counter-claims as people understandably resent the direction that the Government have taken and seek to challenge it. They will also prolong disputes by preventing workers from making the point that industrial action is designed to make.
The Business Secretary said something revealing in his opening statement: he said that he hoped he would never have to use these powers. In other words, this is all for show. It is a weak attempt by the Government to say that they are doing something when they are not doing anything to address the underlying causes. All the Members who will vote for the Bill tonight must be praying that its provisions are indeed never activated, because if the Government ever do use it, the net result will be teachers, doctors, nurses, firefighters and more turning up at Conservative Members’ surgeries or standing outside their offices, asking their MPs if they really do want to sack them. Has the Conservative party really thought this through? Is that how we will improve public services, and address the recruitment problems of which we are all aware? The truth is that the Conservatives have gone from clapping workers to sacking workers in just three short Prime Ministers.
These proposals strike me as the last gasps of a Government who are at the end of their tether. This is not a serious proposal to resolve the industrial action that the UK is experiencing. I repeat that it is a sideshow, it will not work, and in fact it is likely to make things even worse. Above all, it completely fails to recognise what every good business knows: that the biggest asset any organisation has is its people, and when those people are driven to extremes and are going on strike in record numbers, we simply have to listen to them. Look at the turnouts in the ballots, and at the strength of the votes that have taken place. We do understand that: there were no nurses’ strikes under the last Labour Government, and there are no rail strikes in Wales under the Welsh Labour Government.
Our plans will address the workforce problems in the NHS with revenue from ending the non-dom rule. Our plans for energy security, industrial strategy and making Brexit work will get the economy growing again, and we will put good jobs and good work at the heart of those plans. The simple truth is this: the Government cannot end these strikes because 13 years of Conservative Government are the cause of these strikes. The sooner they make way for the people who can build the fairer, stronger, more prosperous and more secure country that Britain could be, the better it will be for everyone.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Kevin Hollinrake)
I thank the Members on both sides of the House who have contributed to the debate.
The clear objective of the Bill is to protect the lives and livelihoods of the public by enabling minimum service levels to be applied to our vital public services during strikes. It does not ban the right to strike. It finds the right balance, which was highlighted by my hon. Friend the Member for Gloucester (Richard Graham), my hon. Friend the Member for South West Hertfordshire (Mr Mohindra)—who made some important points about the needs of business—and my hon. Friends the Members for Rushcliffe (Ruth Edwards), for Guildford (Angela Richardson), for Southend West (Anna Firth) and for Meriden (Saqib Bhatti).
Let me turn to some of the other points raised today. Like others on both sides of the House, I pay tribute and express our gratitude to our public sector key workers. That point was raised by my hon. Friends the Members for Sleaford and North Hykeham (Dr Johnson) and for Runnymede and Weybridge (Dr Spencer), who have vast experience of working in the public sector. I have my own personal experience, as my mother worked in the public sector all her life—a life worked to rehabilitate offenders. I am aware of the contribution that public sector workers make to our society.
The deputy leader of the Opposition seeks to blame this Government alone for the challenging times we face, but she seems conveniently to forget that we are still not free from the after-effects of the covid-19 pandemic and Russia’s illegal invasion of Ukraine. I was very interested in a point she raised in her speech, when she said, “We would have resolved this dispute long ago.” At what figure? Would it have been 11% across the public sector? That would have cost the taxpayers of this country £28 billion. That is £1,000 per household per annum. Maybe the leader of the Opposition will reflect on that now that he is here, obviously having had a call from his union paymasters.
Members ask why the Government are focusing on legislating and not resolving the disputes. The Government recognise the pressure of the cost of living on people. That is why we have committed to halving inflation and growing the economy, and why we have provided £26 billion to support individuals and businesses. We are investing billions more in schools, the NHS and social care. All that supports workers.
My right hon. Friend the Member for Witham (Priti Patel) is right to highlight the devastating impact of strikes on the economy—£6 billion, including £2.5 billion of lost income to the hospitality sector alone. That is why Ministers across Government have been meeting unions to resolve the disputes where it is possible to do so.
Sarah Owen
The Minister talks about the cost of strike action, but will he agree about the cost of the damage that the previous Prime Minister and the previous Chancellor did to our country and all the taxpayers and workers who we on the Opposition Benches are supporting today?
Kevin Hollinrake
I would highlight the downward pressure already placed on inflation, the changes to the money markets following the action taken by our Chancellor and Prime Minister and the stability being delivered through their future plan.
Kevin Hollinrake
I will shortly. Ministers across Government have been meeting unions to resolve the disputes where it is possible to do so. It is obviously apparent that unions exist to represent union members. Apparently, from today’s debate, so does the Labour party. The shadow Cabinet alone has received £350,000 since 2019. It is important to reflect on those figures. We need to have the confidence that when workers strike, people’s lives and livelihoods are not put at risk, so we need the power to act. That is why this legislation is needed. The public expect us to act. It is no wonder that YouGov polling for The Times published last week found that 56% of voters support this legislation and only 31% are against it.
Barry Gardiner
The Minister will know that under this Bill it is possible for the Government to designate workers to perform under a contract when they have voted to go on strike. Will he at least give an assurance that there will be no attempt by any Secretary of State to designate a union official to break a strike that they have encouraged their union members to be involved in?
Kevin Hollinrake
I will deal with work notices later in my speech, but it is clear that it is up to employers to decide what workers are needed on certain days, and there is no discrimination between people who are union members and people who are not. That is very clear in the legislation. Hon. Members have questioned the sectors within the Bill. The sectors in scope of the Bill are justified as these sectors are where strike action causes disproportionate disruption to the general public.
Mr Gagan Mohindra
The Minister is making an excellent summing up, as always. Could he reaffirm that public opinion is with this side of the House rather than with the Opposition?
Kevin Hollinrake
I think that the polling is very clear. We have heard precious little about what the public think of this. We heard a lot about the impact on public sector workers, but the public themselves are with us on this legislation.
The Government have already announced their intention to consult on the application of minimum service levels for rail, ambulance and fire services. I welcome Members’ questions and suggestions on how minimum service levels will operate in specific services, and I note in particular the helpful contributions from my hon. Friends the Members for Milton Keynes South (Iain Stewart) and for West Dorset (Chris Loder). I look forward to the contribution of key stakeholders and experts during the consultation process. The Government will also engage with the devolved Administrations during the consultation process. The Government have been clear, however, that we may choose not to use the regulation-making powers in the Bill if adequate voluntary arrangements, where necessary, are already in place between employers in a relevant sector.
This legislation also equips employers to manage instances where a worker takes strike action despite being named to work on a strike day. It is at the discretion of employers as to what action, if any, is taken, and we hope that employers are fair and reasonable. The claim that it is a policy of this Government to sack workers is an unfair exaggeration.
I want to touch on the international examples, mentioned in the excellent speech by my hon. Friend the Member for Newbury (Laura Farris). The concept of minimum service levels is not new. They are used all over the world, including in the USA, Canada and a number of European countries including Spain and Italy. We all want to see an end to these strikes.
Martin Docherty-Hughes (West Dunbartonshire) (SNP)
claimed to move the closure (Standing Order No. 36).
Mr Deputy Speaker (Mr Nigel Evans)
No, we still have another two and a bit minutes to run, so I am using my discretion not to accept that.
Kevin Hollinrake
In response to questions regarding the consistency of this legislation with the UK’s—
David Linden
I beg to move, That the House sit in private.
Question put forthwith (Standing Order No. 163).
The House proceeded to a Division.
Dawn Butler (Brent Central) (Lab)
On a point of order, Mr Deputy Speaker. The Minister has said that it will cost the Government £28 billion to settle the dispute with our public service workers. The Institute for Fiscal Studies predicts that it will actually cost the public a significantly lower figure, £14 billion, to meet the public sector demands. Is there a way in which we can get the Minister to correct the record on the Floor of the House?
Mr Deputy Speaker (Mr Nigel Evans)
I thank the hon. Lady for her point of order. The Chair is not responsible for the content of any speeches, be they ministerial or Back-Bench contributions, but it is well evidenced that if any Member finds out that they have unwittingly misled the House, they must correct the record at the earliest possible opportunity.
Strikes (Minimum Service Levels) Bill
Monday 30th January 2023
(1 year, 2 months ago)
Commons ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 30 January 2023 - (30 Jan 2023)
21:56 - The House divided: - Ayes: 46 / Noes: 321 - Question accordingly negatived.
22:10 - The Committee divided: - Ayes: 247 / Noes: 318 - Question accordingly negatived.
22:22 - The Committee divided: - Ayes: 250 / Noes: 317 - Question accordingly negatived.
22:36 - The Committee divided: - Ayes: 246 / Noes: 315 - Question accordingly negatived.
23:00 - The House divided: - Ayes: 315 / Noes: 246 - Question accordingly agreed to.
The First Deputy Chairman of Ways and Means (Mr Nigel Evans)
With this it will be convenient to discuss the following:
Clause 2 stand part.
Amendment 80, in clause 3, page 1, line 14, after “may”, insert “not”.
The purpose of this amendment is to ensure that any consequential provision is made only by an Act of Parliament.
Amendment 84, page 1, line 15, at end insert—
“(1A) No such regulations shall be made without the prior agreement of the Confederation of British Industry and the Trades Union Congress.”
This amendment, together with Amendment 83, is intended to partially fulfil the conditions required by ILO Convention 87 by providing that minimum service levels are reached by negotiation.
Amendment 100, page 1, line 16, leave out subsections (2) and (3).
This amendment would remove the Secretary State’s powers to amend, repeal or revoke primary legislation, through regulations.
Amendment 27, page 1, line 16, after “may” insert “not”.
The purpose of this amendment is to ensure that any amendment, repeal or revocation of primary legislation is made only by an Act of Parliament.
Amendment 101, page 1, line 18, leave out from “Act” to end of line 19.
This amendment would remove the Secretary of State’s powers to bring in regulations to amend, repeal or revoke primary legislation, later in the same session of Parliament as this Act.
Amendment 22, page 1, line 19, at end insert—
“(2A) No provision whatsoever having effect in Northern Ireland may be made under or by virtue of this Act unless and until the Northern Ireland Assembly has approved a joint decision by the First Minister and deputy First Minister that such provision should be made.”
This amendment is intended to ensure that the Bill will not be extended to cover Northern Ireland without appropriate devolved consent.
Amendment 102, page 2, line 5, leave out from “section” to end of line 7 and insert—
“must be made under the affirmative resolution procedure”.
This amendment would ensure that any regulations made under clause 3, must be made under the affirmative resolution procedure.
Amendment 28, page 2, line 8, leave out subsection (5) and insert—
“(5) In this section “primary legislation” means an Act of Parliament.
(6) For the avoidance of doubt, this section shall not apply to—
(a) an Act or Measure of Senedd Cymru, or
(b) an Act of the Scottish Parliament.”
The purpose of this amendment is to provide that, if Clause 3(2) is retained, the power of United Kingdom Ministers to amend primary legislation should not apply to Acts of the Scottish Parliament or the Senedd Cymru.
Amendment 97, page 2, line 8, leave out subsection (5) and insert—
“(5A) For the avoidance of doubt, this section shall not apply to—
(i) an Act or Measure of Senedd Cymru, or
(ii) an Act of the Scottish Parliament.”
The purpose of this amendment is to preclude the power of United Kingdom Ministers in clause 3(2) to amend primary legislation and extends that power to Acts of the Scottish Parliament or the Senedd Cymru.
Amendment 81, page 2, line 8, leave out from “means” to end of line 11 and insert “an Act of Parliament.”
This amendment would remove Acts of the Scottish Parliament or Senedd Cymru from the power to amend or repeal primary legislation by regulations made by statutory instrument.
Amendment 76, page 2, line 10, leave out subsection (b).
This amendment would prevent the Secretary of State from being able to make consequential amendments to an Act or Measure of Senedd Cymru.
Clause 3 stand part.
Amendment 98, in clause 4, page 2, line 13, leave out from “England” to end of line 13 and insert—
“only.
(2) This Act does not apply to disputes which take place in—
(a) Scotland or Wales; or
(b) the United Kingdom if any of the workers who are parties to the dispute are employed by an employer to work in Scotland or Wales, as the case may be.
(3) For the avoidance of doubt, this Act shall apply only to disputes where all the workers who are parties to the dispute are employed by an employer to work in England.”
The purpose of this amendment is to exclude the application of the Act to Scotland and Wales.
Amendment 77, page 2, line 13, leave out “and Wales”.
The purpose of this amendment is to exclude the application of the Act to Wales.
Amendment 30, page 2, line 13, leave out “and Scotland”.
This amendment is intended to prevent the Bill applying to Scotland. See also Amendments 36, 37 and 38.
Amendment 107, page 2, line 13, leave out “and Wales and Scotland.”
This amendment would confine the extent of the Act to England.
Clause 4 stand part.
Amendment 31, in clause 5, page 2, line 15, at beginning insert “Subject to subsection (2),”.
See explanatory statement for Amendment 32.
Amendment 67, page 2, line 15, leave out from “force” to end of line 15 and insert—
“in accordance with this section.
(1) Sections 4 to 6 of this Act come into force on the day on which this Act is passed.
(2) The remaining provisions of this Act come into force on a date specified by the Secretary of State, which may not be before one month after the day on which the Joint Committee on Human Rights, following the taking of written and oral evidence, has published a report as to whether in its opinion the Act’s provisions are compatible with the right to freedom of assembly and association under Article 11 nof the European Convention, as well as the right to strike as recognised in other international instruments that the United Kingdom has ratified.”
This amendment requires the publication of a report from Joint Committee on Human Rights before the Act can come into operation.
Amendment 20, page 2, line 15, leave out “on the day on which this Act is passed” and insert—
“in accordance with section [Compliance condition for commencement]”.
Amendment 32, page 2, line 15, at end insert—
“(2) But no regulations may be made under this Act or the Schedule to this Act before the Secretary of State has laid before Parliament statements of consent to the Act from—
(a) the Scottish Parliament,
(b) Senedd Cymru, and
(c) the Greater London Assembly.”
The intention of this Amendment is to prevent the Act coming into operation until after consent to the Act has been obtained from the Scottish Parliament, Senedd Cymru and the Greater London Assembly.
Clause 5 stand part.
Clause 6 stand part.
New clause 1—Compliance condition for commencement—
“(1) This section and sections 4 to 6 come into force on the day this Act is passed.
(2) The remainder of the Act comes into force on a day to be specified in regulations by the Secretary of State which may not be earlier than the day after the High Court has issued a certificate under this section.
(3) The Secretary of State may apply to a Judge of the High Court of Justice for a certificate that the law in this Act is compliant with—
(a) the obligations set out in Convention 87 of the International Labour Organisation;
(b) the obligations set out in the European Social Charter of 1961 which have been ratified by the United Kingdom;
(c) the obligations of the United Kingdom set out in Article 387 sub-paragraphs (2) and (4) of the UK/EU Trade and Cooperation Agreement 2021; and
(d) the obligations of the United Kingdom set out in Article 399 sub-paragraphs (2) and (5) of the UK/EU Trade and Cooperation Agreement 2021.
(4) On an application made by the Secretary of State for the certificate in subsection (3) above, after hearing the Secretary of State, the Trades Union Congress, the Confederation of British Industry and such other organisations or individuals whose applications the Judge may consider should be heard, the Judge shall grant the certificate only if the court is satisfied that the law of the United Kingdom is compliant with the obligations set out in paragraph (3).”
This new clause would prevent the Act from coming into operation until a court had certified that the Act complied with the UK‘s relevant international obligations.
New clause 2—Extent (No. 2)—
“(1) This Act extends and applies to England only.
(2) This Act does not apply to disputes which take place in—
(a) Scotland or Wales; or
(b) anywhere in Great Britain, if any of the workers who are parties to the dispute are employed by an employer to work in Scotland or Wales, as the case may be.
(3) For the avoidance of doubt, this Act shall apply only to disputes where all the workers who are parties to the dispute are employed by an employer to work in England.”
The purpose of this new clause is to exclude the application of the Act to Scotland and Wales.
New clause 3—Impact assessment: duties to work with trade unions in Wales—
“The Secretary of State must, within one month of the day on which this Act is passed, lay before Parliament an assessment of the effect of this Act on industrial relations in Wales, with particular reference to the intended outcomes of the Social Partnership and Public Procurement (Wales) Bill currently before Senedd Cymru.”
This new clause would require the Government to publish an assessment of the impact of this Act on social partnership.
New clause 4—Requirement for consent from devolved institutions—
“No regulations may be made under any provision of the 1992 Act inserted by this Act before the Secretary of State has laid before Parliament statements of consent to this Act from—
(a) the Scottish Parliament,
(b) Senedd Cymru,
(c) the Greater London Assembly, and
(d) Combined Authorities in England that have responsibility for delivering services that fall within any of the categories set out in s234B(4) of the 1992 Act.”
Amendment 36, in the schedule, page 3, line 7, after “services” insert “in England and Wales”.
This amendment is intended to prevent the Bill applying to Scotland.
Amendment 37, page 3, line 8, after “levels” insert “in England and Wales”.
This amendment is intended to prevent the Bill applying to Scotland.
Amendment 38, page 3, line 11, after “levels” insert “in England and Wales”.
This amendment is intended to prevent the Bill applying to Scotland.
Amendment 83, page 3, line 12, at end insert—
“(1A) No such regulations shall be made without the prior agreement of the Confederation of British Industry and the Trades Union Congress.”
This amendment, together with Amendment 84, is intended to partially fulfil the conditions required by ILO Convention 87 by providing that minimum service levels are reached by negotiation.
Amendment 115, page 3, line 12, at end insert—
“(1A) Minimum service regulations—
(a) may be made only if the Secretary of State reasonably believes them to be necessary to protect the life, personal safety or health of the whole or part of the population; and
(b) may provide only for levels of service reasonably considered necessary to provide protection for the life, personal safety or health of the whole or part of the population.”
This new subsection would limit the levels of service which the Secretary of State could set in regulations to levels of service that the Secretary of State reasonably believes to be necessary to protect life, personal safety or health.
Amendment 116, page 3, line 12, at end insert—
“(1B) Minimum service regulations must—
(a) not provide for levels of service which are greater than those necessary to satisfy the basic needs of the population or the minimum requirements of the service; and
(b) ensure that the scope of the minimum service does not render ineffective any strike it affects.”
This new subsection would limit minimum service regulations to the levels indicated as appropriate in conclusions of the International Labour Organisation’s Committee on Freedom of Association.
Amendment 15, page 3, line 15, leave out “even” and insert “except”.
This amendment would stop the Secretary of State from being able to set minimum service levels for disputes that have already been balloted for.
Amendment 99, page 3, line 15, leave out “even if” and insert “unless”.
The amendment seeks to stop regulations under this Bill from being applied to strikes which have already been balloted for.
Amendment 59, page 3, line 20, at end insert—
“(2A) A minimum service level must not be framed so that it would require more than 30% of a workforce to be served with a work notice.”
This amendment would limit the proportion of a workforce which can be required by a minimum service level so as to ensure that a majority of workers will be able to withdraw labour.
Amendment 60, page 3, line 20, at end insert—
“(2A) A minimum service level must be framed to take account of the actual levels of service provided in the previous year.
(2B) After a minimum service level regulations have been issued, no work notices may be issued for any further strikes unless the employer has maintained the minimum service level on days not affected by strike for at least 3 months.”
This amendment would prevent employers from requiring a minimum service level if the employer had not previously been able to maintain such a level on days not affected by strike action.
Amendment 61, page 3, line 20, at end insert—
“(2A) Minimum service levels must not exceed 20% of normal service levels achieved, except in so far as additions to the minimum service level is wholly determined for operational reasons related to health and safety requirements.”
This amendment would stipulate 20% of normal service levels as an upper threshold for minimum service levels.
Amendment 16, page 3, line 21, leave out subsection (3).
See Amendment 17.
Amendment 21, page 3, line 22, at end insert—
“(2A) The Secretary of State may not add to the list of categories in subsection (4) below.
(2B) The Secretary of State may by regulations made by statutory instrument subject to annulment remove any categories from subsection (4) below.
(2C) After a category has been removed from subsection (4) below, it may not be added back in to that subsection except by primary legislation.”
This amendment bars any addition to, or any reinstatement of, the 6 categories of service to which this Act applies, while facilitating the removal of any of those categories.
Amendment 17, page 3, line 23, leave out from “that” to end of line 31 and insert—
“have been approved for specification under this Act by resolution of each House of Parliament.”
This amendment would ensure that minimum service level regulations apply only to services that have been approved by resolution in both Houses.
Amendment 9, page 3, line 25, leave out paragraph (a).
This amendment would remove “health services” from the Bill.
Amendment 75, page 3, line 25, at end insert—
“except nurses, doctors, paramedics, ambulance support workers, veterinary services, community health services, pharmacists, mental health services, sexual health services, speech and language therapy services, dental services and transportation of medical supplies services.”
This amendment would various occupations and sub-sectors of the health sector from the regulations in the Bill.
Amendment 10, page 3, line 26, leave out paragraph (b).
This amendment would remove “fire and rescue services” from the Bill.
Amendment 11, page 3, line 27, leave out paragraph (c).
This amendment would remove “education services” from the Bill.
Amendment 74, page 3, line 27, at end insert—
“except primary schools, secondary schools, further education colleges, universities, contracted school transportation, private schools and academies.”
This amendment would exempt various occupations and sub-sectors of the education sector from the regulations in the Bill.
Amendment 12, page 3, line 28, leave out paragraph (d).
This amendment would remove “transport services” from the Bill.
Amendment 73, page 3, line 28, at end insert ——
“except aviation services, airline services, airport services, airport fire services, car delivery services, road haulage services, parcel delivery services, bus services, tram services, rail infrastructure, rail engineering ferry and waterway services, seafarers, and dock services.”
This amendment would exempt various occupations and sub-sectors of the transport sector from the regulations in the Bill.
Amendment 109, page 3, line 28, at end insert—
“, except where the service is
(i) a rail service wholly or partly within Scotland,
(ii) a bus service registered with the Traffic Commissioner for Scotland,
(iii) a ferry service wholly or partly within Scotland,
(iv) any aviation service which uses a facility holding an aerodrome certificate issued the Civil Aviation Authority for all or part of its journey, or
(v) any aviation service which receives funding as part of a Public Service Obligation.”
This amendment would exempt passenger transport services in, to, and from Scotland from being subject to a work notice.
Amendment 13, page 3, line 29, leave out paragraph (e).
This amendment would remove ““decommissioning of nuclear installations and management of radioactive waste and spent fuel” from the Bill.
Amendment 14, page 3, line 31, leave out paragraph (f).
This amendment would remove “border security” from the Bill.
Amendment 106, page 3, line 31, at end insert—
“(4A) No regulations made by statutory instrument under this section shall apply to any service which relates to the provisions of—
(a) the Transport (Scotland) Act 2019;
(b) the Transport (Scotland) Act 2001;
(c) section 8 of the Railways Act 2005;
(d) section 10 of the Civic Government (Scotland) Act 1982; or
(e) any passenger ferry operating within the portion of the UK Exclusive Economic Zone lying under the jurisdiction of Scotland, or to any service defined by Scottish ministers as relating to the provision of transport services in Scotland.”
This amendment would exclude most passenger transport services in Scotland from being subject to minimum service regulations laid by the Secretary of State.
Amendment 2, page 3, line 31, at end insert—
“(5) Levels of service set by regulations under subsection (1) may not exceed the lowest actual level of service for the relevant service recorded on any day of the 12 months before the regulations are laid.
(6) Before making regulations under subsection (1) for the relevant service, the Secretary of State must lay before Parliament a report showing that the condition in subsection (5) is met.”
This new subsection (5) would require the Secretary of State to specify any minimum service levels made in regulations under subsection (1) of the new inserted section 234B at a level no higher than the lowest actual level of service recorded on any day in the year before the new regulations are laid. Subsection (6) requires the Secretary of State to lay a report before Parliament to prove that the condition in subsection (5) has been met.
Amendment 4, page 3, line 31, at end insert—
“(5) The Secretary of State may not make any regulations under this section until after a Minister of the Crown has laid before Parliament assessments outlining the impacts of the Strikes (Minimum Service Levels) Act 2023 on—
(a) workforce numbers,
(b) Individual workers,
(c) employers,
(d) trade unions, and
(e) equalities.”
This amendment would require the Government to publish assessments of how the proposed legislation would impact on workforce numbers, individual workers, equalities, employers and trade unions before the Bill comes into operation.
Amendment 23, page 3, line 31, at end insert—
“(5) Regulations made under this section in relation to strikes affecting services in an area for which an elected mayor is responsible may not be made without the consent of the elected mayor for that area.”
This amendment would require the consent of the relevant elected mayor before minimum service levels could be set in relation to an area for which an elected mayor was responsible.
Amendment 39, page 3, line 31, at end insert—
“(5) Regulations under this Part may not—
(a) prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action;
(b) create an offence; or
(c) require levels of service on strike days which are higher than those ordinarily provided on non strike days.
(6) Regulations may not make provision which is contrary to the United Kingdom’s international obligations, and in particular—
(a) International Labour Organisation Convention No 87;
(b) Social Charter of the Council of Europe, Article 6(4); and
(c) EU-UK Trade and Cooperation Agreement, Article 399.
(7) For the purposes of subsection 6(a), reference shall be made to the Observations of the ILO Committee of Experts, and the Conclusions of the ILO Committee on Freedom of Association to determine the United Kingdom’s international obligations.
(8) For the purposes of subsection 6(b), reference shall be made to the Conclusions of the European Committee of Social Rights to determine the United Kingdom’s international obligations.”
This amendment is designed to restrict the power of the Secretary of State to make regulations, and in particular, to ensure that regulations should not authorise any steps which restrict the right to strike. Subsections (5)(a) and (b) are based on the restraints on the power to make regulations in the Civil Contingencies Act 2004. Subsection (5)(c) is new. The amendment is designed to ensure also that any regulations are compatible with international obligations.
Amendment 94, page 3, line 31, at end insert—
“(5) Regulations may not—
(a) prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action;
(b) create an offence; or
(c) require levels of service on strike days which are higher than those ordinarily provided on non-strike days.
(6) Regulations may not make provision which is contrary to the United Kingdom’s international obligations, and in particular—
(a) International Labour Organisation Convention No 87;
(b) Social Charter of the Council of Europe, Article 6(4); and
(c) EU-UK Trade and Cooperation Agreement, Article 399.
(7) To determine the United Kingdom’s international obligations for the purposes of subsection 6(a), reference shall be made to the Observations of the ILO Committee of Experts, and the Conclusions of the ILO Committee on Freedom of Association, and for the purposes of subsection 6(b), reference shall be made to the conclusions of the European Committee of Social Rights.”
This amendment would prevent the Secretary of State from making regulations which unduly abridge the right to strike. Section 234(5)(a) and (b) are based on the Civil Contingencies Act 2004. Section 234(5)(c) is new. The amendment is intended to require any regulations to be compatible with the UK’s international obligations.
Amendment 108, page 3, line 31, at end insert—
“(5) Any services deemed to fall within a category specified in subsection (4) which are subject to the competence of—
(a) the Scottish Parliament,
(b) the Senedd,
(c) the Northern Ireland Assembly,
(d) the Greater London Authority,
(e) a combined authority constituted under the Local Democracy, Economic Development and Construction Act 2009,
(f) any other elected body named by the Secretary of State,
shall not be subject to regulations made under subsection (3).”
This amendment would remove any service provided by a devolved government or authority from being subject to a regulation made by the Secretary of State under this Act.
Amendment 40, page 3, line 31, at end insert—
“234BA Parliamentary Scrutiny
(1) Where regulations are made under section 234B—
(a) a senior Minister of the Crown shall as soon as is reasonably practicable lay the regulations before Parliament, and
(b) the regulations shall lapse at the end of the period of seven days beginning with the date of laying unless during that period each House of Parliament passes a resolution approving them.
(2) If each House of Parliament passes a resolution that the regulations shall cease to have effect, the regulations shall cease to have effect—
(a) at such time, after the passing of the resolutions, as may be specified in them, or
(b) if no time is specified in the resolutions, at the beginning of the day after that on which the resolutions are passed (or, if they are passed on different days, at the beginning of the day after that on which the second resolution is passed).
(3) If each House of Parliament passes a resolution that regulations shall have effect with a specified amendment, the regulations shall have effect as amended, with effect from—
(a) such time, after the passing of the resolutions, as may be specified in them, or
(b) if no time is specified in the resolutions, the beginning of the day after that on which the resolutions are passed (or, if they are passed on different days, the beginning of the day after that on which the second resolution is passed).
(4) Nothing in this section—
(a) shall prevent the making of new regulations, or
(b) shall affect anything done by virtue of regulations before they lapse, cease to have effect or are amended under this section.
234BB Parliamentary Scrutiny: Prorogation and Adjournment
(1) If when regulations are made under section 234B Parliament stands prorogued, His Majesty shall by proclamation under the Meeting of Parliament Act 1797 (c. 127) require Parliament to meet on a specified day.
(2) If when emergency regulations are made under section 234B the House of Commons stands adjourned, the Speaker of the House of Commons shall arrange for the House to meet on a day during that period of adjournment.
(3) If when emergency regulations are made under section 234B the House of Lords stands adjourned, the Speaker of the House of Lords shall arrange for the House to meet on a day during that period of adjournment.”
The inserted sections 234BA and 234BB are designed to enhance the power of Parliament to approve regulations. These provisions are based on the power to make regulations in the Civil Contingencies Act 2004.
Amendment 41, page 3, line 31, at end insert—
“234BC Consultation with Devolved Administrations
(1) Regulations which relate wholly or partly to Scotland may not be made unless a senior Minister of the Crown has consulted the Scottish Ministers.
(2) Regulations which relate wholly or partly to Wales may not be made unless a senior Minister of the Crown has consulted the National Assembly for Wales.
(3) For the purposes of (1) and (2) consultation means consultation with a view to reaching an agreement.”
The inserted Section 234BC is designed to ensure that the Minister must consult the Scottish and Welsh ministers before regulations are made. Section 234BC(1) and (2) are based on similar provisions in the Civil Contingencies Act 2004.
Amendment 3, page 3, line 31, at end insert—
“234BA Power to specify minimum service levels: health and safety
(1) Minimum service regulations must take into account the levels of service provided in the relevant service in periods when that service is not affected by strikes.
(2) Before making any regulations under section 234B, the Secretary of State must lay before Parliament an assessment of the level of service provided within the relevant specified category over the most recent period of 12 months for which data is available.
(3) The assessment under subsection (2) must include an analysis of performance in relation to health and safety standards applicable to the relevant service.
(4) The Secretary of State must give priority in making regulations under section 234B to maintaining health and safety standards during a strike which are no lower than the relevant applicable standards in the specified service.”
This amendment would require the Government to assess health and safety performance in the affected sector before making minimum service regulations.
Amendment 82, page 3, line 31, at end insert—
“234BD Consultation with Social Partners
(1) Before making regulations under section 234B the Secretary of State shall consult organisations representative of employers and trade unions.
(2) Consultation under subsection (1) shall take place with a view to reaching an agreement.
(3) Where consultation takes place without an agreement being reached, the Secretary of State shall refer the matter to arbitration for the resolution of any matters of disagreement between the Secretary of State and the organisations representative of employers and trade unions.
(4) The arbitrator appointed under subsection (3) shall be an independent person appointed by ACAS from a panel of arbitrators established by ACAS for this purpose.
(5) The decision of the arbitrator shall be binding.
(6) The Secretary of State shall not make regulations which are inconsistent with the decision of the arbitrator.”
The proposed new section 234BD is intended to require the Secretary of State’s to consult and agree minimum service levels with the social partners, failing which minimum service levels will be determined by an independent arbitrator.
Amendment 117, page 3, line 31, at end insert—
“234BA Requirement for opportunity for negotiated settlement and involvement of independent body
(1) The Secretary of State may not make minimum service regulations in respect of any strike of which a trade union gives notice to an employer under section 234A unless—
(a) the employer and the trade union have been given a reasonable opportunity to reach a negotiated agreement on minimum service levels in respect of the strike; and
(b) if the employer and the trade union have not been able to reach an agreement on minimum service levels—
(i) the employer and trade union have both been given a reasonable opportunity to make representations to a quasi-judicial body independent of the employer, trade union and Government; and
(ii) the independent body has been given a period that is reasonable in the circumstances to determine minimum service levels in respect of the strike.
(2) If the employer and trade union have reached a negotiated agreement on minimum service levels in respect of the strike referred to in subsection (1), the Secretary of State may not make minimum service regulations in respect of that strike.
(3) If the independent body referred to in subsection (1)(b)(i) and (ii) above has determined minimum service levels in respect of the strike within the reasonable period—
(a) The employer and trade union are bound by those minimum service levels;
(b) The Secretary of State may not make minimum service regulations in respect of the strike referred to in subsection (1).”
This amendment would prevent the Secretary of State making minimum service regulations in respect of a strike unless the trade union and employer have had an opportunity to reach a negotiated agreement on those levels, and where an independent body has had the opportunity to determine the levels in the absence of an agreement.
Amendment 119, page 3, line 34, after second “a” insert “recognised”.
Amendment 42, page 4, line 1, at end insert—
“(1A) An employer shall also send a copy of a work notice to any person identified therein as someone required to work during the strike.”
This amendment is designed to require the employer to send a copy of the notice to each of the individuals identified in the notice.
Amendment 111, page 4, line 18, at end insert—
“(c) not relate to a service which does not relate to a competence listed in Schedule 5 of the Scotland Act 1998.”
This amendment this would exclude any devolved services in Scotland from being subject to a work notice.
Amendment 70, page 4, leave out lines 19 to 21 and insert—
“(5) A work notice must not identify any more than the minimum number of persons necessary for the purpose of providing the levels of service under the minimum service regulation.”
This amendment, with Amendments 71 and 72, is intended to require employers to take reasonable steps to ensure the serving of work notices does not prevent lawful industrial action from taking place.
Amendment 69, page 4, line 21, at end insert—
“and no person shall be identified in one or more work notices where the effect would be that they would be prevented from taking part in industrial action on fifty per cent or more of the days included in the notice referred to in section 234C(1)(a)”
This amendment is intended to ensure that specific workers cannot be prevented from striking by this Bill.
Amendment 120, page 4, line 21, at end, insert—
“or have the effect of preventing any one person taking part in protected industrial action”
Amendment 93, page 4, line 21, at end insert—
“(5A) A work notice must not include a person who is an official of the trade union (within the meaning of section 119) at the time a work notice is issued.”
This amendment would exempt trade union officials from a work notice under the Act.
Amendment 64, page 4, line 24, at end insert—
“; or whether the person took part in the activities of an independent trade union at an appropriate time; or made use of trade union services at an appropriate time.”
This amendment would ensure that the selection of persons for work notices cannot be targeted at trade union activists.
Amendment 68, page 4, line 24, at end insert—
“; or whether the person took part in the activities of an independent trade union at an appropriate time; or made use of trade union services at an appropriate time.
(6A) An employer having regard to one or more of the matters referred to in subsection (6) in deciding whether to identify a person in a work notice shall be deemed to subject that person to a detriment for the purpose of section 146 of this Act.
(6B) Subjecting a person to a detriment in contravention of section 146 of this Act by reason of subsections (6) and (6A) shall be actionable as a breach of statutory duty.
(6C) A person deemed to have been subjected to a detriment for the purpose of section 146 by reason of reason of subsections (6) and (6A) may, as an alternative to pursuing an action for breach of statutory duty in accordance with subsection 6B, present a claim to an Employment Tribunal in accordance with that section.
(6D) If there facts from which a court or tribunal could conclude, in the absence of any other explanation, that the employer has contravened, or is likely to contravene, subsections (6) and (6A), it must find that such a contravention occurred, or is likely to occur, unless the employer shows that it did not, or is not likely, to occur.”
This amendment is intended to gives legal recourse in cases where employers may choose to target trade union members with work notices.
Amendment 85, page 4, line 25, leave out from “must” to end of line 28 and insert—
“reach agreement with the union about the number of persons to be identified and the work to be specified in the notice.”
This amendment is intended to partially fulfil the conditions required by ILO Convention 87 by providing that minimum service levels are reached by negotiation between the social partners
Amendment 103, page 4, line 25, leave out from “must” to end of line 28 and insert—
“take reasonable steps to reach agreement”.
This amendment aims to ensure that minimum service levels are reached by negotiation between employers and trade unions.
Amendment 43, page 4, line 25, leave out subsection (7) and insert —
“(7A) A work notice shall not be valid unless the employer has consulted the recognised trade union, or in the absence of a recognised trade union, a representative trade union.
(7B) Consultation under subsection (7A) shall take place with a view to reaching an agreement.
(7C) Where consultation takes place without an agreement being reached, the employer shall refer the matter to arbitration for the resolution of any matters of disagreement between the employer and the trade union.
(7D) The arbitrator appointed under subsection (7C) shall be an independent person appointed by ACAS from a panel of arbitrators established by ACAS for this purpose.”
This amendment is designed to enhance the employer’s duty to consult about work notices.
Amendment 86, page 4, leave out lines 25 to 28 and insert—
“(7A) A work notice shall not be valid unless the employer has consulted the recognised trade union, in the absence of which a representative trade union.
(7B) Consultation under subsection (7A) shall take place with a view to reaching an agreement.
(7C) In the event of a failure to agree the matters in (7A) the employer or the union may refer any or all disputed issues to an arbitrator who shall be an independent person appointed by ACAS from a panel of arbitrators established by ACAS for this purpose and the decision of the arbitrator shall be binding.”
This alternative amendment turns on a duty to consult rather than to reach agreement.
Amendment 71, page 4, line 27, leave out “and”.
This amendment, with Amendments 70 and 72, is intended to require employers to take reasonable steps to ensure the serving of work notices does not prevent lawful industrial action from taking place.
Amendment 65, page 4, line 28, leave out “have regard to any views expressed by the union in response” and insert—
“take into account the views expressed by the trade union with a view to reaching agreement with the union.”
This amendment is intended to promote good faith engagement between the employer and trade union when consulting over work notices.
Amendment 72, page 4, line 28, after “response” insert—
“and (c) be satisfied that the requirement in subsection (5) is satisfied.”
This amendment, with Amendments 70 and 71, is intended to require employers to take reasonable steps to ensure the serving of work notices does not prevent lawful industrial action from taking place.
Amendment 87, page 4, line 28, at end insert —
“(7A) In the event of a failure to agree the matters in subsection (7), the employer or the union may refer any or all disputed issues to an arbitrator who shall be an independent person appointed by ACAS from a panel of arbitrators established by ACAS for this purpose and the decision of the arbitrator shall be binding.”
This amendment is intended to partially fulfil the conditions required by ILO Convention 87 by providing that minimum service levels are reached by negotiation between the social partners.
Amendment 112, page 4, line 28, at end insert—
“(7A) No employee of any organisation listed in Schedule 1 of the Civil Contingencies Act 2004 shall be subject to any work notice.”
This amendment would exempt any occupation or employee subject to the above Act from any regulations allowing a work notice to be issued.
Amendment 44, page 4, line 30, after “union” insert—
“and to each individual person identified in the notice”.
See Amendment 42.
Amendment 95, page 4, line 30, after “varied” insert—
“to any person identified therein as someone required to work during the strike and,”.
This amendment is intended to require the employer to send a copy of the notice to each of the individuals identified in the notice.
Amendment 88, page 4, line 33, at end insert —
“(8A) A variation shall not be valid unless the employer has consulted the recognised trade union, in the absence of which a representative trade union.
(8B) Consultation under subsection (8A) shall take place with a view to reaching an agreement.
(8C) In the event of a failure to agree the matters in subsection (8B) the employer or the union may refer any or all disputed issues to an arbitrator who shall be an independent person appointed by ACAS from a panel of arbitrators established by ACAS for this purpose and the decision of the arbitrator shall be binding.”
This alternative amendment turns on a duty to consult rather than to reach agreement.
Amendment 89, page 4, line 34, leave out paragraph (9) and insert—
“(9A) In the event of a failure to agree the matters in subsection (7A) the employer or the union may refer any or all disputed issues to an arbitrator who shall be an independent person appointed by ACAS from a panel of arbitrators established by ACAS for this purpose and the decision of the arbitrator shall be binding.”
This amendment is intended to partially fulfil the conditions required by ILO Convention 87 by providing that minimum service levels are reached by negotiation between the social partners.
Amendment 90, page 4, line 34, leave out paragraph (9) and insert—
“(9A) An employer may vary a work notice.
(9B) A variation shall not be valid unless the employer has consulted the recognised trade union, in the absence of which a representative trade union.
(9C) Consultation under subsection (9A) shall take place with a view to reaching an agreement.
(9D) In the event of a failure to agree the matters in (9A) the employer or the union may refer any or all disputed issues to an arbitrator who shall be an independent person appointed by ACAS from a panel of arbitrators established by ACAS for this purpose and the decision of the arbitrator shall be binding.”
This alternative amendment turns on a duty to consult rather than to reach agreement.
Amendment 104, page 4, line 34, leave out from “must” to end of line 37 and insert—
“take reasonable steps to reach agreement”.
This amendment aims to ensure that minimum service levels are reached by negotiation between employers and trade unions.
Amendment 96, page 4, line 34, at end insert—
“(za) send a copy of a work notice to any person identified therein as someone required to work during the strike,”.
This amendment is intended to require the employer to send a copy of the notice to each of the individuals identified in the notice.
Amendment 46, page 4, line 35, after “union” insert—
“and each individual person identified in the notice”.
See Amendment 42.
Amendment 66, page 4, line 37, leave out “have regard to any views expressed by the union in response” and insert—
“take into account the views expressed by the trade union with a view to reaching agreement with the union.”
This amendment is intended to promote good faith engagement between the employer and trade union when consulting over work notices.
Amendment 47, page 4, line 37, after “union” insert—
“and by each individual person identified in the notice”.
See Amendment 42.
Amendment 110, page 4, line 40, at end insert—
“(a) A work notice must be submitted to the Presiding Officer of the Scottish Parliament, the Llywydd of the Senedd, and the Speaker of the Northern Ireland Assembly for consideration by a sitting of each body.
(b) Where less than four-fifths of those elected representatives constituting each body vote in favour of a motion supporting the granting of a work notice, the notice shall be deemed invalid.”
This amendment would ensure that a work notice would be valid only if its provisions were submitted by an employer to the three devolved institutions and received the support of over 80% of elected members in each chamber.
Amendment 48, page 4, line 40, at end insert—
“234CA Protection of Employees
(1) A person shall not be subject to a work notice if the person in question has not been given or received the work notice.
(2) The onus will be on the employer to prove that an individual received a work notice.
(3) Failure to comply with a work notice shall not—
(a) be regarded as a breach of the contract of employment of any person identified in the work notice; or
(b) constitute grounds for dismissal or any other detrimental action.
(4) Having regard to subsection (3), failure to comply with a work notice shall be deemed to be—
(a) a trade union activity undertaken at an appropriate time for the purposes of section 146 above; and
(b) participation in industrial action for the purposes of sections 238 and 238A below.”
This inserted Section 234CA is designed to ensure that compliance with a work notice should be voluntary on the part of the employee in question. Provision is also made to protect the individual who decides not to comply from any sanction imposed by the employer.
Amendment 113, page 5, line 6, at end insert—
“(2A) No disclosure of information authorised by section 234C shall apply to any individual habitually residents or ordinarily employed in Scotland.”
This amendment would protect the personal data of people living and working in Scotland.
Amendment 49, page 5, leave out lines 9 to 22.
The purpose of this amendment is to delete inserted section 234E in order to exclude the operation of the duty of the union to take reasonable steps to ensure that all workers identified in the work notice comply with the notice.
Amendment 79, page 5, line 14, leave out from “234C” to end of line 17.
This would remove the requirement for trade unions to take reasonable steps for employees to comply with work notices, as these are not a matter between trade union and member, but between employer and employee.
Amendment 63, page 5, line 17, leave out “comply with” and insert “are aware of”.
This amendment would ensure that the trade union’s legal duty is restricted to making its members aware of the content of the work notice.
Amendment 92, page 5, line 17, at end insert—
“(1A) In paragraph (1)(b), if it is alleged that a union failed to take “reasonable steps”, a failure to take any of the following steps shall not be taken to constitute a failure to take reasonable steps—
(a) to discipline or impose any detriment for non-compliance or threatened non-compliance, or for inducing or seeking to induce non-compliance by another member with a work notice, or
(b) to threaten to discipline or impose any detriment for non-compliance or threatened non-compliance, or for inducing or seeking to induce non-compliance by another member with a work notice, or
(c) to instruct a member not to comply with a work notice, or to revoke any instruction or encouragement to take part in the strike.”
This amendment is intended to limit the requirement that a union should police its own members.
Amendment 52, page 5, line 22, at end insert—
“(3) A trade union shall be deemed fully to have complied with its obligation under subsection (1) if it informs any members identified in a work notice that they have been so identified.
(4) For the purpose of subsection (3) a trade union is required to do only whatever is reasonably practicable by whatever means it deems appropriate.
(5) For the purposes of subsection (3) a trade union will not be deemed to have failed to comply with its duty in paragraph (b) on the ground only that one or more members has or have not been informed that they are the subject of a work notice.
(6) For the avoidance of doubt, a trade union will not be required to discipline or expel a member who—
(a) refuses to comply with a requirement to work under a work notice, or
(b) encourages others not to comply with a work notice.”
This amendment is intended to restrict the trade union’s compliance duty under the Act.
Amendment 118, page 5, line 22, at end insert—
“(3) Peaceful picketing within the meaning of section 220 of the 1992 Act shall not be regarded as an act done by the union to induce a person to take part, or continue to take part, in the strike, for the purposes of subsection (1).”
The intention of this amendment is avoid picketing alone being a cause for a claim against the union under the Act on the basis that this was inducing an identified person to take part in the strike.
Amendment 91, page 5, line 22, at end insert —
“(2A) A trade union shall be deemed fully to have complied with its obligation under section (1) if it informs any of its members identified in a work notice that they have been so identified.
(2B) For the purpose of subsection (2A) a trade union is required to do only whatever is reasonably practicable by whatever means it deems appropriate.
(2C) For the purposes of subsection (2A) a trade union will not be deemed to have failed to comply with its duty in paragraph (b) on the ground only that one or more members has or have not been informed that they are the subject of a work notice.”
This amendment is intended to limit the requirement that a union should police its own members.
Amendment 50, page 5, line 23, after “consultation” insert “with Social Partners”.
This amendment is linked to Amendment 51.
Amendment 8, page 5, line 23, at end insert—
“(A1) Before making regulations under section 234B the Secretary of State must receive a report into minimum services in the affected sector from the relevant House of Commons select committee.
(A2) For the purpose of subsection (A1), “relevant House of Commons select committee” means—
(a) House of Commons Home Affairs Committee for regulations affecting fire and rescue services, and border security as set out in 234B(4),
(b) House of Commons Education Committee for regulations affecting education services as set out in 234B(4),
(c) House of Commons Transport Committee for regulations affecting transport services as set out in 234B(4),
(d) House of Commons Health and Social Care Committee for regulations affecting health services as set out in 234B(4),
(e) House of Commons Business, Energy and Industrial Strategy Committee for regulations affecting decommissioning of nuclear installations and management of radioactive waste and spent fuel as set out in 234B(4).
(A3) The Speaker of the House of Commons may determine in case of any doubt the relevant successor of any committee mentioned in subsection (A2).”
This amendment would require that each relevant Select Committee conducts and publishes inquiries on how the Act will impact on each named sector, before the Act can be brought into operation.
Amendment 51, page 5, line 24, leave out subsection (1) and insert—
“(1A) Before making regulations under section 234B the Secretary of State shall consult organisations representative of employers and trade unions.
(1B) Consultation under subsection (1) shall take place with a view to reaching an agreement.
(1C) Where consultation takes place without an agreement being reached, the Secretary of State shall refer the matter to arbitration for the resolution of any matters of disagreement between the Secretary of State and the organisations representative of employers and trade unions.
(1D) The arbitrator appointed under subsection (3) shall be an independent person appointed by ACAS from a panel of arbitrators established by ACAS for this purpose.
(1E) The decision of the arbitrator shall be binding.
(1F) The Secretary of State shall not make regulations which are inconsistent with the decision of the arbitrator.”
Consistently with the practice in other countries, the purpose of this amendment is to remove the Secretary of State’s unilateral power to determine what minimum service levels should be. The Secretary of State would l be required to consult and agree minimum service levels with the social partners, failing which minimum service levels will be determined by an independent arbitrator.
Amendment 62, page 5, line 25, leave out lines 23 to 40 and insert—
“234F Consultation
(1) If a Minister of the Crown proposes to make regulations under this Act the Minister must—
(a) consult such organisations as appear to the Minister to be representative of interests substantially affected by the proposals;
(b) where the proposals relate to the functions of one or more statutory bodies, consult those bodies, or persons appearing to the Minister to be representative of those bodies;
(c) consult the Scottish Ministers and the Welsh Ministers, and
(d) consult such other persons as the Minister considers appropriate.
(2) If, as a result of any consultation required by subsection (1), it appears to the Minister that it is appropriate to change the whole or any part of the proposals, the Minister must undertake such further consultation with respect to the changes as the Minister considers appropriate.
(3) If, before the day on which this section comes into force, any consultation was undertaken which, had it been undertaken after that day, would to any extent have satisfied the requirements of this section, those requirements shall to that extent be taken to have been satisfied.
(4) In subsection (1)(b) ‘statutory body’ means—
(a) a body established by or under any enactment; or
(b) the holder of any office so established.
234FA Draft regulations and explanatory document laid before Parliament
(1) If, after the conclusion of the consultation required by section 234F, the Minister considers it appropriate to proceed with the making of regulations, the Minister must lay before Parliament for a period of at least 60 days —
(a) a draft of the regulation, together with
(b) an explanatory document.
(2) The explanatory document must—
(a) introduce and give reasons for the regulations;
(b) give details of—
(i) any consultation undertaken under section 234F;
(ii) any representations received as a result of the consultation;
(iii) the changes (if any) made as a result of those representations;
(c) explain why the draft regulations are consistent with the United Kingdom’s international legal obligations.
234FB Super-affirmative resolution procedure
(1) In determining whether to make regulations, the Minister must have regard to—
(a) any representations made,
(b) any resolution of either House of Parliament, and
(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft regulations,
any recommendations of a committee of either House of Parliament charged with reporting on the draft regulations,
(2) If, after the expiry of the 60-day period, the Minister wishes to make regulations in the terms of the draft, the Minister must lay before Parliament a statement—
(a) stating whether any representations were made under subsection (1)(a); and;
(b) if any representations were so made, giving details of them.
(3) The Minister may after the laying of such a statement make regulations in the terms of the draft if it is approved by a resolution of each House of Parliament.
(4) However, a committee of either House charged with reporting on the draft regulations may, at any time after the laying of a statement under subsection (3) and before the draft regulations are approved by that House under subsection (3), recommend under this subsection that no further proceedings be taken in relation to the draft regulations.
(5) Where a recommendation is made by a committee of either House under subsection(4) in relation to a draft regulations, no proceedings may be taken in relation to the draft regulations in that House under subsection (3) unless the recommendation is, in the same Session, rejected by resolution of that House.
(6) If, after the expiry of the 60-day period, the Minister wishes to make regulations consisting of a version of the draft regulations with material changes, the Minister must lay before Parliament—
(a) a revised draft of the regulations; and
(b) a statement giving details of—
(i) any representations made under subsection (1)(a); and
(ii) the revisions proposed.
(7) The Minister may after laying revised draft regulations and statement under subsection (6) make regulations in the terms of the revised draft if they are approved by a resolution of each House of Parliament.
(8) However, a committee of either House charged with reporting on the revised draft regulations may, at any time after the revised draft regulations are laid under subsection (6) and before they are approved by that House under subsection (7), recommend under this subsection that no further proceedings be taken in relation to the revised draft regulations.
(9) Where a recommendation is made by a committee of either House under subsection (8) in relation to a revised draft regulations, no proceedings may be taken in relation to the revised draft regulations in that House under subsection (7) unless the recommendation is, in the same Session, rejected by resolution of that House.
(10) In this section the “60-day period” means the period of 60 days beginning with the day on which the draft regulations were laid before Parliament under section 234FA.”
This amendment would provide a super-affirmative procedure for Regulations under the Act.
Amendment 5, page 5, line 25, leave out
“such persons as the Secretary of State considers appropriate”
and, at end insert —
“(a) trade unions in each affected sector,
(b) employers in each affected sector,
(c) relevant Government Departments for each affected sector, and
(d) relevant Parliamentary Select Committees for each affected sector.”
The intention of this amendment is to require that the Government consults with a range of stakeholders for each affected sector before making regulations, including relevant trade unions, employers, Government Departments and Select Committees.
Amendment 114, page 5, line 25, leave out
“such persons as the Secretary of State considers appropriate”
and insert—
“(a) the Scottish Trade Union Congress,
(b) the Trade Union Congress,
(c) the Irish Congress of Trade Unions,
(d) all trade unions entered on the list maintained by the Certification Officer under Section 3 of the Trade Union and Labour Relations (Consolidation) Act 1992,
(e) the Scottish Parliament,
(f) Scottish Ministers,
(g) Senedd Cymru,
(h) Welsh Ministers,
(i) the Northern Ireland Assembly,
(j) the Northern Ireland Executive, and
(k) such persons as the Secretary of State considers appropriate.”
This amendment would mandate consultation with all relevant trade union bodies, individual trade unions, the Scottish Parliament, Senedd Cymru, Northern Ireland Assembly, and allow the Secretary of State to consult others.
Amendment 53, page 5, line 26, at end insert—
“(1A) For the avoidance of doubt subsection (1) is without prejudice to the obligations of the Secretary of State in section 234BC (duty to consult Devolved Administrations) and section 234BD (duty to consult Social Partners).”
This amendment is linked to Amendment 41.
Amendment 24, page 5, line 26, at end insert—
“(1A) In particular, the Secretary of State must consult elected mayors of Greater London and of Combined Authorities in respect of minimum service levels for services for which they have responsibility.”
The intention of this amendment is to ensure that elected mayors with strategic responsibilities for transport, for example, are included in the consultations before minimum service levels are set.
Amendment 7, page 5, line 39, leave out
“(as well as by consultation after that time)”.
The intention of this amendment is to require that the consultation may be satisfied only by consultation completed before the passing of the Act.
Amendment 6, page 5, line 40, at end insert —
“(6) Any consultation carried out by the Government under this section must be published within six weeks of the day on which this Act is passed.”
The intention of this amendment is to require that the Government makes public any and all consultations.
Amendment 18, page 5, line 40, at end insert—
“234FA Impact assessment of this Part
(1) The Secretary of State must conduct a review into the impact of this Act on each the categories listed in section 234B(4), with regard to—
(a) recruitment of new staff,
(b) retention of existing staff, and
(c) the provision of adequate staffing levels in the long-term.
(2) The Secretary of State must a lay a copy of the report under subsection (1) before both Houses of Parliament no later than six months after the day on which this Act is passed.”
This amendment would require the Secretary of State to conduct a report into the impact of the Bill on recruiting staff, retaining staff and the provision of adequate staffing levels in the long-term.
Amendment 19, page 5, line 40, at end insert—
“234FB Impact assessment of this Part (No. 2)
(1) The Secretary of State must conduct a review into the impact of this Act on—
(a) numbers of working hours lost attributable to the operation of this Act, and
(b) the total cost to the Exchequer of litigation arising from legal challenges to this Act over the first 12 months after the day on which this Act is passed.
(2) The Secretary of State must a lay a copy of the report under subsection (1) before both Houses of Parliament no later than 18 months after the day on which this Act is passed.”
This amendment would require the Secretary of State to conduct an impact assessment on the working hours lost, and costs to government of legal challenges, incurred as a result of the Act.
Amendment 54, page 6, line 2, at end insert—
“‘senior Minister of the Crown’ means—
(a) the First Lord of the Treasury (the Prime Minister),
(b) any of Her Majesty’s Principal Secretaries of State, and
(c) the Commissioners of Her Majesty’s Treasury.”
This provision is based on the Civil Contingencies Act 2004: see Amendment 41.
Amendment 55, page 6, line 9, leave out paragraphs 3 to 5.
The purpose of this amendment is to ensure that trade unions do not incur delictual or tortious liability where there is a failure to take reasonable steps to ensure workers fail to comply with work notices.
Amendment 1, page 6, line 29, leave out paragraphs 6 to 10.
This amendment would preserve existing protections from unfair dismissal, including for an employee who participates in a strike contrary to a work notice under this Bill.
Amendment 78, page 6, line 33, leave out paragraph 8.
This amendment would remove the Bill’s intention to remove protection against unfair dismissal for workers who refuse to work on strike days.
Amendment 58, page 7, line 4, at end insert—
“(ab) however, where the industrial action is a strike relating to the provision of a particular service, an employee who takes part shall be treated as having taken part in protected action if the only reason why the action is not protected in accordance with subsection (1) is that the union has failed to comply with section 234E above.”
This amendment would ensure that unfair dismissal protection for participating in industrial action is retained where the union has failed to take reasonable steps in accordance with section 234E.
That the schedule be the Schedule to the Bill.
Amendment 57, in the title, line 1, leave out
“about minimum service levels in connection with the taking by trade unions of strike action relating to certain services”
and insert—
“to make provision for workers in specified services to be subject to compulsory work notices contrary to their decision to withdraw their labour in an industrial dispute”.
The intention of this Amendment is to re-phrase the long title of the Act.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Kevin Hollinrake)
It is a pleasure to serve under your chairmanship, Mr Evans.
It is well known that the first and foremost job of any Government is to keep the public safe. Every one of us in this Chamber will know of people who have been impacted by industrial action. Every one of us will know constituents who work hard and expect access to essential and life-saving services when they need them. It is clear that that is not happening in all cases. That is why this Government are taking proportionate and sensible steps through the Bill. Our position, which has the support of the majority of our constituents—in a recent YouGov poll, 56% of those polled said that they support the legislation—is that we need to maintain a reasonable balance between the ability of workers to strike and the ability to keep the lives and livelihoods of the British public safe.
Alan Brown (Kilmarnock and Loudoun) (SNP)
The Minister has started with a red herring about keeping people safe. Can he explain, then, why teachers and education are included in the Bill?
Kevin Hollinrake
Clearly, there is a wider context for children. It is about services and safety—those are both contexts in this—as well as livelihoods. All those things are affected when people do not provide a minimum service level.
Kevin Hollinrake
If I may, I will respond to the question from the hon. Member for Kilmarnock and Loudoun (Alan Brown). All those things are affected when there is a universal strike. The Bill is about guaranteeing a minimum service level.
Several hon. Members rose—
Kevin Hollinrake
I am happy to give way to the hon. Member for Coventry South.
Zarah Sultana (Coventry South) (Lab)
I thank the Minister for giving way. This anti-worker, anti-strike Bill applies to the fire and rescue service, which has seen a 30% cut in central Government funding since the Tories came into power, with one in five firefighter jobs being lost. Today the Fire Brigades Union won a historic ballot against another insulting real-terms pay cut. Does the Minister agree that if the Government really cared about minimum service levels, they would properly fund the fire and rescue service, alongside other key services, and give pay rises, rather than this pathetic attempt to cosplay as Thatcher, pretending that firefighters and workers are the enemy rather than the people keeping the country running?
Alexander Stafford (Rother Valley) (Con)
On a point of order, Mr Evans, is it acceptable for Members to speak on an issue and not declare an interest when they have received money from trade unions?
The First Deputy Chairman of Ways and Means (Mr Nigel Evans)
It is up to each individual Member to reflect on whether they wish to declare an interest, but at least the hon. Member has given a timely reminder that those who wish to do so should, even in interventions, declare interests.
David Linden (Glasgow East) (SNP)
Further to that point of order, Mr Evans, to be helpful to the House, given that a number of Members who spoke on Second Reading declared their interest, is it really necessary for them to do so again in Committee? I know that the hon. Member for Rother Valley (Alexander Stafford) is new to the House, but perhaps he might re-acquaint himself with “Erskine May”.
Chris Stephens
Further to that point of order, Mr Evans, is it also in order for hon. Members who have received donations from employers to register them in the debate?
The First Deputy Chairman
That is exactly the same point. Let us just move on please. We have got a lot to deal with today, and it is six hours of protected time.
Kevin Hollinrake
In answer to the point from the hon. Member for Coventry South (Zarah Sultana), negotiations need to continue, and they need to be fair to workers, but also to the taxpayer, which I will touch on in a second.
I reject the characterisation of this Bill by the Opposition, who clearly put their relationship with their unions over the interests of this country. This is not a radical Bill. What we are doing is not even new. We are taking reasonable, proportionate and balanced steps and aligning ourselves with many of our European partners, such as France and Spain.
Barry Gardiner (Brent North) (Lab)
Will the Minister accept that health and safety legislation in this country—to ensure guards on machinery, for example, to stop people’s hands being chopped off—was won because workers withdrew their labour? Does he understand that the ambulance workers and the nurses say that the very reason they are going on strike is to make sure that the service is safe? What he is saying at the Dispatch Box is complete rubbish.
Kevin Hollinrake
I do not accept the hon. Gentleman’s point. On nurses, we already have voluntary agreements, yet still they go on strike. The two things are consistent and are not mutually exclusive, but I recognise his point on the right to withdraw labour and bring attention to certain things, whether pay or other matters at work. It is absolutely right that people should be able to do that, but it should not prevent others going about their daily business and, indeed, feeling safe in terms of such things as healthcare.
Several hon. Members rose—
Jim Shannon (Strangford) (DUP)
In relation to safety—others have mentioned this—the nurses that I have spoken to and been on the picket line with have told me that they want better pay and conditions and more staff, but they have also made sure that at no stage was emergency cover not available. The ambulance service staff who went on strike always made sure emergency cover was available. It is really a matter of staffing and wages. Does the Minister, who I respect greatly, understand that nurses have already ensured cover, and all they are looking for is fair pay?
Kevin Hollinrake
The hon. Member makes an important point. We are happy with the agreement we have with the Royal College of Nursing, and that is why we are not consulting on minimum service levels for nurses. On ambulances, we got only last-minute agreements—we had to negotiate on a trust-by-trust basis—that provided no confidence that the service would be in place and did not cover things such as strokes and chest pains in all cases. That would put somebody who is worried about having a stroke in a state of anxiety, and that is what we are trying to protect against.
Several hon. Members rose—
Kevin Hollinrake
I will make some progress.
We clearly want to resolve these disputes, but we must do it in an affordable way. An inflation-matching pay increase of 11% for all public sector workers would cost £28 billion, which would put just under £1,000 on to the bills of every household in all our constituencies. That is on top of the Opposition’s spending plans, which would add £50 billion of recurrent costs annually on to our economy, where we are already running a £175 billion deficit. As we have seen in recent months, we cannot take the market for granted, so that level of borrowing is absolutely unsustainable.
The disputes are already costing our economy and threatening businesses and livelihoods. The estimated cost to the economy so far is £6 billion, including £2.5 billion to the already challenged hospitality sector. I will conclude my comments there. I am happy to hear contributions from hon. Members on both sides of the Committee. I will listen with interest and look forward to responding later.
Angela Rayner (Ashton-under-Lyne) (Lab)
I draw the House’s attention to my entry in the Register of Members’ Financial Interests, because I continue to be a proud trade unionist and I am proud to represent my constituents in the Chamber when I speak today.
We are in an absurd situation: we are back to debate the Conservatives’ sacking nurses Bill—[Interruption.]— not just nurses, but millions of other key workers. The Bill is controversial and divisive, and as irrational as it is impractical. It is strongly condemned by all Opposition parties.
Some 110 amendments and new clauses have been selected for consideration today, including more than 35 tabled by the Labour Front-Bench team. Given that we have had just a few days to draft and table them, that is quite some feat. We will have only five hours to debate those amendments, however, with no reasonable timetable; there would have been more if we had had that. We have had no line-by-line scrutiny of the Bill and we are unable to hear any evidence. The Government have simply prevented the House from doing its job, so it will be left to the other place to scrutinise the legislation properly, which should be a major concern to us all.
Ellie Reeves (Lewisham West and Penge) (Lab)
Under this legislation, workers can be sacked for taking strike action that has been agreed in a democratic ballot, which is a gross infringement of working rights and goes against the long-established principles set out in the Trade Union and Labour Relations (Consolidation) Act 1992. It also goes against the pledge in the 2019 Queen’s Speech, which said that sanctions would not be directed at individual workers. In the light of that, does my right hon. Friend agree that we simply have not been given enough time to debate a Bill that goes against everything that we stand for?
Angela Rayner
I absolutely agree with my hon. Friend that Labour stands against this sacking nurses Bill—the Minister chuntered earlier about that not being the case; if he would like to prove that, then the Government could accept our amendment that would resolve the unfair dismissal situation.
We oppose the Bill in the strongest terms on principle and by virtue of the serious flaws that render it utterly unworkable.
Dr Kieran Mullan (Crewe and Nantwich) (Con)
Does the right hon. Lady think it is right that the police are restricted from taking strike action? If she does, why does she oppose similar restrictions on other important public services?
Angela Rayner
The hon. Member should know, because of what has happened recently, that members and those who deliver critical public services have voluntary agreements to ensure that “life and limb” services are covered. The Bill, however, would restrict trade unions’ rights—which are already among the most restricted in the evolved democracies anywhere in the world—and further, goes from clapping nurses to sacking them. I hope he will vote with us tonight, at least on our amendments, if he does not want to see that happen.
The Secretary of State says we need this Bill to ensure safety levels on strike days, slandering the brave and hard-working ambulance workers as he goes and ignoring the “life and limb” deals that workers already agree. What about our constituents who cannot get an ambulance on any day, such is the crisis in the NHS? The Prime Minister admitted today the serious challenges facing the health service, and he is right, but it is his Government’s duty to protect the public’s access to essential services. The public are being put at risk every day due to this crisis of his own Government’s making.
Lives and livelihoods are already being lost. What about the commuters stopped from going to work because of the failing rail companies in the north? If the Prime Minister really cared, he would insist on fixing the broken public services we have today because of 13 years of Conservative failure. If they were confident of their case, why not agree to amendment 3 and provide us with reports on safety and service levels on any given day in transport, health, education and so on? Or are they just playing politics to distract from their 13 years of failure?
Barry Gardiner
Does my right hon. Friend understand that the Government are authorising employers to do what not even a court in this country can? Under the Trade Union and Labour Relations (Consolidation) Act 1992, no court can compel an employee to do any work or attend any place for the doing of any work, but after a notification to a union of the identity of workers to be requisitioned, the Bill requires the union to take reasonable steps to ensure that all members of the union identified in that work notice comply with it. Is that not absolutely turning the whole system on its head?
Angela Rayner
I absolutely agree with my hon. Friend. These are the fundamental freedoms that underpin our democracy. Conservative Members should be very concerned about what the Government are trying to do; even Henry VIII would be spinning in his grave and absolutely astonished. If, as the Secretary of State and his Prime Minister say, the International Labour Organisation backs their plans, why did the ILO director general slam them? Why did President Biden’s Labour Secretary raise concerns too?
The Secretary of State says that threatening key workers and tearing up their protection against unfair dismissal is necessary. Nurses, teachers, ambulance workers, cleaners, border staff, firefighters, rail workers, bus drivers and nuclear decommissioners—all threatened with the sack in the midst of a recruitment and retention crisis. If that is not the purpose of the Bill, Government Members have the chance to join the Opposition in voting for amendment 1 and removing the sacking key workers clause. I am happy for the Minister to intervene to confirm that he is happy to accept that amendment, and then we can move on. No? Okay.
I also want to draw attention to the gaping holes in the Bill. The Secretary of State would have not just the power to set, impose and police minimum service levels, but to amend, repeal and revoke primary legislation—not just existing Acts but future Bills. We might pass a Bill only for a Minister to rewrite it by statutory instrument the next day. Why on earth do the Government need this power? Are they admitting that future legislation will be badly drafted, or are their motives more sinister? If those are the powers they seek, the least we can do is ensure that those regulations are made under the affirmative procedure.
If there is nothing to fear, the Government can show it by accepting amendments 100 to 102 tonight. Riddled with holes, the Bill gives sweeping powers to a power-hungry Secretary of State.
Why should minimum service levels apply to strikes that have already been balloted for? Would the Minister propose retrospective legislation in any other circumstances? Surely this would undermine attempts to find a resolution to the current disputes, prolonging the pain that the Government are hellbent on putting the public through. Or is it that the Government offer no solution because they caused the problem?
Mike Amesbury (Weaver Vale) (Lab)
The only minimum service level that I and my constituents would like to see is one for the Prime Minister, Secretaries of State and Ministers. Indeed, in opening the Committee stage for this important and draconian piece of legislation, the Minister certainly provided a minimum level of service. Does my right hon. Friend agree?
Angela Rayner
I absolutely agree with my hon. Friend, and here is the rub. I think it is the reason for the latest poll out today on support for the action that trade unions are taking. It is not because the general public like the inconvenience. Of course we all want strike action to be avoided, but the public can glaringly see through the Government’s defence—that this legislation is needed because we need minimum service levels—because they have seen ambulance workers, nurses, and all other key workers fighting for this country and protecting people when this Government cannot provide the minimum safe service level at any other time, during any other week, when there is no strike action. It is this Government who are failing the British people and not providing the level of care, not our key workers, not our nurses, not our teachers and not our firefighters. They are the ones supporting our key public services, and I applaud them for doing that.
The Bill also allows bosses to target union members with work notices. What is to stop that happening? Will trade unions be liable for the actions of non-members? What about when there is no recognised trade union? What reasonable steps will a trade union need to take? Will it be penalised for picketing, or could the simple existence of an otherwise lawful peaceful picket line be effectively banned? The Secretary of State claims to stand up for the democratic freedom to strike. Where are the protections to ensure that work notices do not prevent legal industrial action, or the requirements on employers to take reasonable steps to make sure that they do not, either intentionally or not? Can he really say that not one worker will be banned from action by simply being named in every work notice? What about workers in control functions on the railways, such as fleet managers, route managers and maintenance managers, who would be forced to work regardless under this law?
If the Secretary of State does not care about workers, what about the burden on the employers? Does he seriously think that overstretched public services have the resources to assess new minimum service laws—to work out who needs to be in work, how many people and where, before every single strike day? Should we not promote good-faith negotiations instead? If only the Government put their time and their effort into doing the one thing that will resolve this crisis: negotiating with the employers and the workers in good faith. There are reports that some Ministers are seeing the light and are ready to negotiate. The Transport Secretary admits that these measures will not work; the Education Secretary sees the damage they will do to schools.
As is normally the case in Committee upstairs, we have tabled probing amendments—for example, why these six sectors? Will the Secretary of State add more, and how are they defined? Do health services include veterinary services, dentists or pharmacists? What about parcel delivery, ferry and waterway services, or steam railways? Does he mean to include private schools? Will he regulate minimum service levels for Eton?
The Government are running away from scrutiny precisely because they know that this Bill will not stand up to it. Does the Secretary of State not accept that first we need to see the assessment by the Joint Committee on Human Rights and inquiries by the relevant Select Committees, and that all promised consultations must be completed and published before the Act comes to pass? I know the Minister understands the challenges with legislation and the need to ensure that those affected are consulted properly, so I do not understand why he stands at the Dispatch Box today and does not want, as a minimum, these things to have happened before legislation is passed.
Who is the Secretary of State planning to consult? Will he consult the trade unions and employers affected? Why has he failed to publish the impact assessment that he promised? The Bill has nearly passed through the lower House and we have still not had any sight of it. This is near unprecedented and deeply anti-democratic. Even the Regulatory Policy Committee has not seen it. Is the Secretary of State scared that the impact assessment will speak the truth—that it will conclude that this legislation is unneeded and will actually make things worse?
Rachael Maskell (York Central) (Lab/Co-op)
My right hon. Friend is making an excellent speech. The Minister should go on a field trip to really understand what happens with these agreements. The paramedics on the ambulance service picket line carry bleeps, as do those in the NHS, so that they can provide surge staffing when that is required. That is an ongoing dialogue throughout the day and the minimum standards in the Bill will not address that. Does my right hon. Friend agree that the standards are therefore superfluous because they will not address the day-to-day, minute-by-minute needs of the health service?
Angela Rayner
I absolutely agree with my hon. Friend. Her point links to what I was trying to express earlier: the Government fail to recognise that every time they suggest in some way that our paramedics, nurses and other key workers do not provide a minimum service and do not take seriously the impact of challenging in the way they have been forced to. They protect the very people they are there to support. The Government have misjudged how people feel about that, because not only have they caused offence to those workers who protect us day in, day out, but they have failed to recognise that every single one of our key workers who does that has friends and family who know that they do that. This is why the public get very upset with the Government when they suggest that somehow our paramedics, nurses and other key workers do not provide those standards. I agree with my hon. Friend: if the Government were able to get out more and see what happens on the ground, they would have a clearer understanding of why this legislation will not work and fix the problems. The public understand that and the Minister should take note.
John McDonnell (Hayes and Harlington) (Lab)
If we walk through this legislation and its eventual implementation, we see that it will result in either a worker being sacked or a worker being sacked and a trade union being fined. Can my right hon. Friend think of anything that could greater exacerbate the current industrial-relations climate than those sorts of threats?
Angela Rayner
I absolutely agree with my right hon. Friend. That is exactly what this Government are walking into and I think it will exacerbate the situation. The Government have been exacerbating the situation not just by bringing forward this legislation—most of the public can see what they are trying to do—but through the tone with which they have carried out, or failed to carry out, negotiations to avert the industrial action we have seen. Nurses are taking industrial action for the first time ever. Rather than get round the table and sort the mess out that they have created after 13 years in government, the Government try to demonise those very workers. The public do not thank them for that.
Rushanara Ali (Bethnal Green and Bow) (Lab)
Does my right hon. Friend agree that this legislation is a diversion from this Government’s incompetence? Last year, they practically cost the taxpayer £55 billion because of the economic mismanagement of their Government under the former Prime Minister, the right hon. Member for South West Norfolk (Elizabeth Truss). Instead of negotiating to protect people, the Government are blaming them for their own incompetence.
Angela Rayner
I absolutely agree with my hon. Friend. We cannot be divorced from the fact that members of the public have seen how this Government have conducted themselves—the sleaze and scandals, the outrageous waste of money, and crashing the economy, of course—while at the same telling the key workers who got us through the pandemic that they have to like it or lump it and suffer the consequences of the Government’s incompetent governance. It does gripe with the general public and they do not accept it.
Ian Lavery (Wansbeck) (Lab)
My right hon. Friend is making a really powerful speech. I remind Members that this afternoon the fire and rescue service members in the FBU voted—on a 72% turnout—88% yes to industrial action. They have a huge mandate but, like other trade unions, they are suggesting that there should be 10 days in which the employer can discuss with the unions some sort of resolution to the strike action, by discussing pay and so on. Is that not a far better way to deal with this unrest than trying to implement the most anti-democratic, anti-worker and anti-trade union legislation? I declare an interest and refer to my entry in the Register of Members’ Financial Interests.
Angela Rayner
I thank my hon. Friend for that intervention. I think we all have an interest in ensuring that we have good, valuable public services. Like our other key workers, firefighters put in place local agreements to ensure that services continue if life is at risk or there are major incidents. There is not a single firefighter who would not attend a major incident. These are our brave heroes who run towards danger when the rest of us run away. There are also already legal obligations on fire services to provide contingency plans for strike days, dating back to the Civil Contingencies Act 2004. Yet again, we have a Government fixated on creating a problem and trying to fix a problem that does not actually exist, instead of dealing with the problem that they have created—penalising and causing great hardship for our key workers, such as the firemen and women who protect our lives every single day.
Can the Minister promise that we will get separate assessments of the impacts of this legislation on all six of the sectors named? Can he guarantee that there will not be any impact on workforce numbers? Can he guarantee that work notices will not put undue burdens on overworked, under-resourced employers? Can he guarantee that equalities law will be upheld and that these new measures will not be used to discriminate against workers with protected characteristics? I fear we already know the answer to that question.
That brings me to our biggest concern with this Bill: the “sacking key workers” clause—
Angela Rayner
I gave the Minister the opportunity to back our amendment. I give him the opportunity to intervene now and say that he will back the amendment and that he does not want to sack those nurses or key workers, as is set out in the current Government proposal. I will happily stop again and allow the Minister to confirm that.
Angela Rayner
No. Thought not. The “sacking key workers” clause will give the Secretary of State the power to threaten every nurse, firefighter, health worker, rail worker or paramedic with the sack—on his whim. These are the workers who got us through the pandemic; the workers who run towards the danger as the rest of us run away; the workers who have been pushed to exhaustion by austerity. And how does the Secretary of State pay them back—by ripping up their protections against unfair dismissal, with no regard for our NHS, schools, or transport lines that cannot cope with mass sackings. How can he seriously think that sacking thousands of key workers will not just plunge our public services further into crisis?
One hundred and thirty-three thousand and four hundred—that is the latest vacancy number in our NHS. One thousand six hundred—that is the latest number of teaching vacancies. One hundred and twenty thousand—that is the number of new vacancies that City & Guilds estimates the rail sector will see in the next five years. We all know that we have a national staffing recruitment and retention crisis and that business groups from the Confederation of British Industry to the British Chambers of Commerce are crying out for vacancies to be filled. How is this a rational and proportionate response? Labour Members are not the only ones asking that question. Has the Secretary of State listened to the right hon. Member for Stevenage (Stephen McPartland) who said earlier this month:
“I will vote against this shameful Bill…It does nothing to stop strikes—but individual NHS Staff, teachers & workers can be targeted & sacked if they don’t betray their mates.”
The right hon. Gentleman understands the Bill, but the Minister clearly does not understand his own Bill. I know that many Conservative Members will share the feelings of the right hon. Member for Stevenage, and that they will be uncomfortable with this awful attack on individuals and with taking away workers’ basic freedoms and removing hard-won basic rights and protections.
Barry Gardiner
My right hon. Friend is being extremely generous in giving way. Does she accept that the only way a union can avoid the situation she has just talked about, where unfair dismissal protection is taken away from workers, is by ensuring that they become an instrument of coercion, of the state and of the employer? For 35 years in this country, legislation has provided that a trade union is prohibited by law from disciplining or expelling a member who refuses to take part in a strike. Under the Bill, the same trade union may be required to discipline or expel a member who does what their workmates and they themselves may have voted for—namely, to withdraw their labour. Jonathan Swift could not have made this up. Nothing in all Lilliput or Brobdingnag could come up with a more ludicrous situation.
The First Deputy Chairman of Ways and Means (Mr Nigel Evans)
Interventions, by their nature, should be short, not lengthy.
Angela Rayner
The Bill is an attack on our basic British freedoms, and Conservative Members should be concerned about that. It is from a Prime Minister who is desperately out of his depth, and desperately blaming the working people of Britain for his own failures. There has been no opportunity for real scrutiny, no impact assessment, and there is no justification for it. The Government’s pretence that it is about safety is offensive to every key worker. For the sake of every nurse, teacher and firefighter across the UK, I urge every member of the Committee to vote for our amendments. For the sake of freedom, fairness and feasibility, I also urge all Members to join us in voting down the Bill tonight.
Several hon. Members rose—
The First Deputy Chairman of Ways and Means (Mr Nigel Evans)
Order. I remind Members that if they were here for the openings of both speeches, then yes they can make a speech in Committee, but if they were not they cannot. If they have been here for what I would say is a decent time, then they are by all means able to make interventions.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
It is a pleasure to follow the right hon. Member for Ashton-under-Lyne (Angela Rayner). I am a supporter of the Bill. I think it is a good and proportionate Bill, but it is badly written. What the right hon. Lady said about Henry VIII clauses is absolutely spot on. Indeed, should the socialists ever be in government in the future I hope they will remember what she said, because skeleton Bills and Henry VIII clauses are bad parliamentary and constitutional practice.
It seems to me that it is hard to describe the right hon. Lady as having been wrong for tabling amendment 101— I will not vote for her, but I say none the less that she is far from being described as wrong. Clause 3 suggests:
“Regulations under this section may amend, repeal or revoke provision made by or under primary legislation passed…later in the same session of Parliament as this Act.”
On what basis can any Government claim to have the power to amend legislation that has not yet been passed? The only argument for doing so, which no Government would wish to advance, is incompetence. The only way to pass a subsequent Act without amending it before it is passed is if we have not noticed what it was saying in the first place, and I cannot understand why a Government would wish to put such a measure in a Bill. Indeed, I am puzzled as to how clause 3 managed to get through the intergovernmental procedures that take place before legislation is presented to the House. I do not understand how the Parliamentary Business and Legislation Committee managed to approve a Bill with such a wide-ranging Henry VIII clause and which fails to set out in detail what powers the Government actually want.
I will support the Bill because its aim is worthy, but the means of achieving that aim are not properly constitutional. Henry VIII powers, it has been established, should be used exceptionally or when there is no other alternative. During the passage of the Coronavirus Act 2020 it was perfectly reasonable to have Henry VIII powers. Why? Because the Act was brought forward extremely quickly, there was little time to revise it and there was not an enormous amount of time to work out precisely what revisions to existing statute law may be needed. Emergency legislation falls into that category. But this is not emergency legislation; this is a Bill that we in the Conservative party have been cogitating about since at least our last manifesto, if not back to about 2016. I have supported it all the way through. I wanted the Bill to come forward. I think it is the right thing to be doing, but there is no excuse for failing to do it properly.
John McDonnell
I think the Conservative party has been contemplating this since the Combination Acts of the 18th century. Anyway, strange alliances have been formed over the years on this issue. If the right hon. Gentleman recalls, an alliance was formed over the Civil Contingencies Bill, and we had a concession from the Government on some of the legislation regarding at least a super-affirmative mechanism that would give the House a bit more influence to amend statutory instruments. Would he be in favour of that?
Mr Rees-Mogg
I am slightly more ambitious than the right hon. Gentleman, because I think that, in and of itself, clause 3—I hope Opposition Members will take note of this—is an argument for the existence of the House of Lords. I hope that their lordships will look at the clause and say, “That is simply not something we can pass into law as it is currently phrased.” The Government must accept amendments, and I hope their lordships will vote through amendments that clarify and set out in detail the powers that are desired.
Other than urgency, there are only two reasons for bringing forward extensive Henry VIII powers. One is that the issue is too complicated to determine. That is problematic, because if it is too complicated to determine for primary legislation, how can it be sufficiently set out in secondary legislation? That probably means that the secondary legislation in and of itself will not be well formed. This is where the Government’s interest—the Executive interest—and the legislature’s interest combine, because if the House passes good, well-constructed legislation, it is much less susceptible to judicial review. There is a Treasury Bench interest in good, well-crafted legislation, which, as I have been saying, this Bill is not. That is why the Government should be keen that the House of Lords, in the time available and with the help, I hope, of parliamentary counsel, will be able to specify the powers more closely.
David Linden
It is a pleasure to see the right hon. Gentleman back on the Back Benches as part of the awkward squad. Does he agree that part of the reason why we have ended up in this mess is that the Government have rushed the Bill, with a programme motion that allows for only five or six hours on the Floor of the House? They are attempting to ram it through and perhaps intend to use it as a stick or as a carrot to dangle during trade union negotiations. This is not thoughtful legislation; this is being rammed through, isn’t it?
Mr Rees-Mogg
I do not think there is any great need to “ram it through”, as the hon. Gentleman phrases it. The secondary legislation will not be written in time to affect the current set of disputes. Indeed, if the secondary legislation is already written and is in a position to be used, those measures ought to be in the Bill in the first place and there would be absolutely no reason for not having them. It is hard to understand the need to rush this through when, as I said, this Bill has been contemplated for many years, and therefore it ought to have been prepared in detail.
I think that it is helpful to refer to two very good reports from the House of Lords on the subject, “Government by Diktat” and “Democracy Denied?”, both published in November 2021. May I thank the Vote Office for hastily printing them for me? It has to be said that it is much easier to read what was said from sheets of paper than from a small mobile telephone. One of the points they make is:
“It cannot be emphasised strongly enough that the critical problem about relegating significant policy change to secondary legislation is that parliamentary scrutiny of secondary legislation is far less robust than that afforded to primary legislation”.
I remind the Committee that there were recently complaints about the Retained EU Law (Revocation and Reform) Bill. Primary legislation was specifically excluded for exactly this reason: when I was responsible for that Bill, it seemed to me that if Parliament passes primary legislation, it should not, as a matter of routine, be changed by secondary legislation.
The “Government by Diktat” report goes on to say:
“We are concerned that the underlying challenge to the balance between Parliament and government is not primarily attributable to the impact of ‘exceptional times’ such as Brexit and the pandemic, as the Permanent Secretaries appeared to assert, but is instead the result of a general strategic shift by government.”
It seems to me that this Bill, which has been thought about for so many years, falls into exactly that category.
The Delegated Powers and Regulatory Reform Committee refers to “skeleton legislation”. This Bill is almost so skeletal that we wonder if bits of the bones were stolen away by wild animals and taken and buried somewhere, as happens with cartoon characters. The DPRRC takes the view that
“skeleton legislation should only be used in the most exceptional circumstances and that, where it is used, a department should always provide a full justification, including an explanation of the nature of those exceptional circumstances”
and
“why no other approach was reasonable to adopt”.
Again, that seems to be absolutely fair and reasonable. If I may quote further:
“Skeleton bills or skeleton clauses, by their very nature, cannot be adequately scrutinised during their passage through Parliament.”
We are trying to scrutinise the Bill and hold the Government to account. I want good legislation. I want legislation that achieves its objective and that clarifies the boundaries of power between the legislature, the King in Parliament and the courts.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
The right hon. Gentleman is making a powerful argument, which I think behoves us to ask the question: why are the Government bringing forward legislation prematurely? The purpose may be that they are seeking to raise conflict in relation to the unions and the strikes for a political reason. The Government are in a position to resolve the strikes but are choosing not to do so, and they are now using legislation as a vehicle by which to do so.
Mr Rees-Mogg
I do not want to be disagreeable, but I do not take that view. I think the Bill has been brought forward as it is because, actually, it is easy for Governments to bring forward skeleton legislation. In my view, it exhibits a general trend in a very acute form. The tendency for Governments to do so goes back many years. Thanks to a House of Lords report, I have a quotation from 1929 from Lord Chief Justice Hewart, who was concerned even then about excess powers being taken. But this Bill puts it in such an acute form, because clause 3 is simply so wide ranging.
I think that this is seeking the easy way to legislate. In my experience, parliamentary counsel, who are among the finest civil servants in the country—the work they do is phenomenal—are never defeated by time, but they are sometimes defeated by political instruction. Had they been instructed to draft a Bill that contained the proper details of what is needed, they would have been able to do so.
Sam Tarry (Ilford South) (Lab)
I have listened carefully to the right hon. Member’s erudite exposition of the constitutional matters affecting the Bill. I draw his attention to the Minister of State, Department for Transport, the hon. Member for Bexhill and Battle (Huw Merriman), who, in recent discussions with the trade unions, made it clear that this was about one thing only—pay—and that the Government would not “capitulate” to the rail trade unions because they would have to give a fair deal to every other sector going on strike, with the latest being the firefighters.
Mr Rees-Mogg
I agree with what the Bill is intended to do. I think that minimum levels of service are perfectly reasonable and not an outrageous thing to ask; they apply to the police and to the armed services. My objection is not to the aim of the Bill; it is merely about the constitutional process.
Richard Fuller (North East Bedfordshire) (Con)
My right hon. Friend is right, in response to the comment from the right hon. Member for Hayes and Harlington (John McDonnell) about strange alliances, that it is the constitutional issues that raise the most significant concerns among Government Members.
In addition to those two reports from the House of Lords, we have the pending review from the Hansard Society on secondary legislation, with its preliminary findings due, I think, on 6 or 7 February. Does my right hon. Friend agree that the Bill may be measured against its preliminary recommendations to see how well it fits, given the constitutional issues that he has mentioned?
Mr Rees-Mogg
The Bill is, as I said, a particularly extreme example of bad practice with the least possible excuse for it. There are many Bills where we can find some reason why it had to be done in such a way. I sat on Committees looking at Henry VIII powers and trying to stop them, and I often found that, actually, they were needed because that was the only way of doing things. I make no apology for the Energy Prices Act 2022. That was emergency legislation, and it contained lots of powers because energy prices had got so high that something had to be done straight away to save people from financial distress. That was a reasonable balance between the Executive and the legislature, but this Bill is not urgent legislation.
My fear is that, by writing poor legislation, we invite the courts to intervene more. I do not like the fact that, over recent decades, the courts have intervened more in our legislative processes. That undermines the democratic remit that we have to make the laws. However, if that is handed over to secondary legislation, of course the courts will intervene because the level of scrutiny of secondary legislation is so much lower and there is little other protection. So if we take away scrutiny from this House, where else will it go? Then we get judicial review, and then the Executive finds that it cannot carry out its plans for government, so it becomes self-defeating.
John McDonnell
I understand and completely follow the logic of the right hon. Gentleman’s argument. I agree with it. However, he is shirking the responsibility of this House by simply passing it to the Lords. In recent months, we have seen the Government withdraw a Bill for further consideration until they got it right. Surely that is the mechanism to get the Bill right; otherwise, we are shirking our responsibility.
Mr Rees-Mogg
I am grateful to the right hon. Gentleman, but I think that he attributes to me more influence than I have. My fusillade against clause 3 will not change many votes this evening—including my own, as it happens. Therefore, it will not be the case that the Government will be defeated in the Committee. I think that I went quite a long way in saying that the right hon. Member for Ashton-under-Lyne was not wrong on amendment 101; I thought that was pretty generous. However, the right hon. Gentleman is a hard man—he is known as a hard man of the left, and he is a hard man of parliamentary procedure as well.
Alan Brown
It is quite impressive that, despite the right hon. Member having been on his feet for 16 minutes telling us how bad the Bill is, he has not convinced himself to vote against it. Is it not the case that he was quite happy to have Henry VIII powers when he was Secretary of State for Business, Energy and Industrial Strategy, but, now that he is a Back Bencher, he is against them and back to respecting parliamentary sovereignty?
Mr Rees-Mogg
I am afraid that the hon. Gentleman is completely wrong about that. In all the legislation that I was involved with, I pushed against Henry VIII powers on every single occasion and always asked why they were necessary—I merely could not make that particularly public. There is a place for Henry VIII powers—they are not all bad—but those in the Bill go much too far. If he looks at the evidence that I gave from those House of Lords reports, he will see that it was on exactly those lines.
Mr Rees-Mogg
I must give up soon, but first I give way to my right hon. Friend.
Sir Julian Lewis
I appreciate how my right hon. Friend is trying to give helpful pointers to Government Front Benchers about ways in which the Bill could be improved. Does he agree with a point made to me by a regional representative of the TUC: that there is so little detail in the Bill that it gives Ministers too much discretion to decide what constitutes an adequate service level? That needs to be looked at again, especially because, where such legislation applies in European countries, the unions are involved in deciding what the minimum service levels are.
Mr Rees-Mogg
I think that the Bill should set out clearly what it is trying to achieve, so I will end with an appeal to the other place: I hope that their lordships will look at clause 3 with extreme care, that they will not be abashed by whatever majority comes from this House with respect to the Bill, and that they will amend the Bill to strengthen it, make it more effective and ensure that it achieves its objectives and sets out, in a good and proper constitutional way, what it is trying to achieve. That would be helpful to the Government, but it would also be good practice.
Mr Rees-Mogg
I should love to give way to the hon. Gentleman, but lots of people want to speak and I have gone on for too long.
Alan Brown
It is a pleasure to follow the right hon. Member for North East Somerset (Mr Rees-Mogg)—certainly now that he has found his Back-Bench voice again—but it is disappointing that he is still in favour of the Bill even though he says how badly drafted it is. We know how bad a Bill’s concept and drafting are when something like 120 amendments are tabled, spanning 53 pages, yet the Bill itself has only six clauses over seven pages.
I thank my hon. Friend the Member for Glasgow South West (Chris Stephens), who is responsible for about a quarter of the entire amendment paper. I am disappointed to see that there is not a single Tory amendment, nor a single Tory MP backing any of the amendments despite how many there are. It is good to hear some critical voices, however, and I hope that at the very least the Minister will listen to the Tory Back-Bench voices telling us how unconstitutional the Bill’s drafting is and the dangers that it will bring.
With only five hours to debate amendments, as my hon. Friend the Member for Glasgow East (David Linden) said, it is clear that the Government are intent on ramming the Bill through with minimum scrutiny but maximum politics as part of the Tory culture war—a culture war that they are now taking to something like 7 million key workers. I hope they get their just reward at the next election from those 7 million voters. Considering that the Tory party accumulated only 14 million votes at the last election, those 7 million key voters could be critical up and down Great Britain.
The Bill is so offensive that there is a moral dilemma involved in tabling amendments to it. How can we improve a Bill that we so fundamentally oppose? For that reason, we tabled amendments to delete each clause. As I have said before, the Under-Secretary of State for Scotland, the hon. Member for Berwickshire, Roxburgh and Selkirk (John Lamont), has described the Bill at the Dispatch Box as “anti-strike legislation”. Our amendment 33, which was not selected, would have changed its title to “Anti-Strikes (Forced Working) Bill”, which would have been quite apt.
The Bill presents opportunities for employers to pick on specific individuals and name them as required to break a strike. If those individuals do not comply, they face the ultimate sanction of sacking. Those proposals are not replicated internationally, even in places where, as the Government like to remind us, there is some form of minimum service legislation. The threat of sacking for going on strike is absolutely outrageous, so I certainly support Opposition amendment 1. Although the Minister says that the Bill could not lead to sacking, the overview in the explanatory notes makes it clear that it will remove protections from unfair dismissal for going on strike. That is the key aim of the Bill, as set out in the overview given in the explanatory notes, so the Minister cannot say that the Bill will not lead to the sacking of key workers.
Chris Stephens
My hon. Friend makes a valid point. The Minister keeps shaking his head whenever someone mentions dismissal, but it is clearly there in the Bill. The Bill says that someone who is sacked will have no right to an industrial tribunal. The very real concern for many of us is that trade union officials and activists will be the ones who are picked on. They will be dismissed and will not have the right to a tribunal.
Alan Brown
I will return to that point, but it is quite clear that the Bill allows individuals to be named. If someone is deemed to be part of an awkward squad, or to be a trade unionist the company wants rid of, they can be named. If they do not break a strike, they could be sacked.
A common theme on the amendment paper is the attempt to control and limit the definition of “minimum service” and ensure that it relates to service required for genuinely critical health and safety-related matters. I support such amendments, although we know that there is existing legislation that covers life and limb protection anyway. In a similar vein, there are attempts to limit unilateral impositions by the Government. There are also several new clauses and amendments that relate to consultation, voluntary agreements, compliance with international obligations and the implementation of an arbitration process. If the Government had any intention of collegiate working, we would not have to debate the inclusion of such measures.
Another theme—I am glad that the right hon. Member for North East Somerset brought it up—is parliamentary sovereignty and the need to prevent too much control from lying with the UK Government. Those are issues that should exercise Tory Back Benchers.
I support all amendments that would eliminate the retrospective effect of the Bill and stop it applying to strikes that have already been balloted for. The Bill is bad enough, but to apply it retrospectively to attack strikes that have already been properly balloted for, under the existing rules and the existing draconian legislation, is just bizarre.
The SNP has tabled amendments that would protect devolution and require approval from devolved Governments and other bodies on devolved matters before implementation. If Scotland were indeed an equal partner, the UK Government would not have a problem with such requirements, but we know that their attitude is “Westminster knows best”, even though it is Westminster that is wrecking inter-Government relations. It is now Westminster that is looking to wreck relationships with key workers, including in the devolved nations.
Our amendment 27 is an attempt to eliminate the ridiculous proposal that secondary legislation could be used to “amend, repeal or revoke” any previous legislation already passed by Parliament or any future legislation in this Session. SNP amendment 28 further makes it clear that such Henry VIII powers should not extend to devolved legislation. It might be acceptable for most of the Tories to allow their Government unparalleled powers over past and future legislation, but it is simply not acceptable to us that Westminster could have carte blanche to rip up devolved legislation that has already been passed. I welcome the similar amendments tabled by the hon. Member for Cynon Valley (Beth Winter) to protect the devolved institutions; I hope that Labour Front Benchers too will see the need to stand up and protect devolution.
I also support the hon. Member’s amendments 98 and 77. They mirror our amendments 30, 36, 37 and 38, which would amend clause 4 and the schedule to ensure that the Bill will not apply to Scotland. New clause 2 spells it out: the Bill should
“not apply to disputes which take place in…Scotland or Wales”,
no matter where the workers reside. If the Tories really want this Bill, I suggest that they own it and justify it to the nurses, ambulance drivers and train workers in their constituencies—but do not think about imposing it on Scotland and Wales, whose Governments do not want it.
Our amendments are intended to prevent imposition from Westminster, but the blunt reality is that unless employment law is devolved to Scotland, the Bill—clause 3 in particular—will allow Westminster to interfere and impose as it sees fit. We are now seeing Westminster confirming autocratic powers.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
My hon. Friend mentions the devolution of employment law. As far as I am aware, the Smith commission undertook to decide whether it should be devolved. Does my hon. Friend know which party blocked that from coming to Scotland?
Alan Brown
I think that was a rhetorical question. It was, unfortunately, Labour that led the charge against devolving employment law. Interestingly, the Scottish Trades Union Congress has made it clear that it supports devolving employment law to Scotland, so I urge the Labour party to reconsider its approach.
David Linden
I missed what my hon. Friend said. Did he say which party blocked the devolution of employment law?
Alan Brown
Just for the record, unfortunately it was the Labour party that blocked the concept of devolving employment law to Scotland—although, to be fair, it was also the Labour party that devolved employment law to Northern Ireland. If it is good enough for Northern Ireland, it should be good enough for Scotland.
Amy Callaghan (East Dunbartonshire) (SNP)
Just one more time, for the record, will my hon. Friend confirm which party prevented employment law from being devolved to Scotland?
Alan Brown
Again, just for the record—I thought I was speaking quite loudly, but just in case Members did not hear what I said—it was indeed the Labour party that blocked employment law from being devolved to Scotland. Hopefully the Labour party will reconsider, now that that is on the record.
Several hon. Members rose—
The Chairman of Ways and Means (Dame Rosie Winterton)
Order. A great many Members are trying to get in. I cannot impose a time limit because we are in Committee, but I strongly advise colleagues to speak for rather less than 10 minutes. I also intend to prioritise those who have tabled amendments.
Dr Mullan
Let me begin by making it clear that I do, of course, want everyone working in the emergency services and the wider NHS to earn a decent living and to work in conditions that help them to perform at their best. I think that everyone wants that.
There is no doubt that our NHS has been under enormous pressure, and that continuing state of affairs has been the subject of much of the debate on this Bill, but I think we must recognise the record investment in the NHS. Demand has soared, and there are pressures on the service run by Labour in Wales and by the Scottish National party in Scotland. We hear the narrative of, “This party this” and “this party that”, but Labour Members keep their heads down when we are discussing the NHS in Wales. That just shows that they are making political capital out of the challenges in the NHS. The right hon. Member for Ashton-under-Lyne (Angela Rayner) shakes her head, but the problems in the NHS are exactly the same in the Labour-run NHS in Wales. That is a fact—and there is more money per head for the NHS in Wales than for the NHS in England.
That said, I welcome the additional steps to support the NHS that the Government have taken today. We need to come to terms with the existence of an ageing population and increasing demand, although I recognise that issue is separate from what we are discussing today, which is what reasonable legislative steps we might take whether public services are performing well or not, and whether or not there is pressure on employees and wages.
I will always defend workers’ right to strike as important, but it has always been a qualified right, not an absolute right. I intervened on the deputy Leader of the Opposition to make the point that we already have legislation—not a voluntary agreement—that states that police officers cannot strike. I have not yet heard of the Labour party putting in their manifesto that they would repeal that if they were lucky enough to win the next election, because they think that legislation on mandatory strike control is unacceptable. That makes the politics of this issue very obvious. Any successful society must balance the right of workers in certain sectors of the economy.
David Linden
Does the hon. Gentleman not understand that if the police were to go on strike, the Prime Minister would not be issued with another fixed penalty notice? It is quite important that the police are able to do their job.
Dr Mullan
Perhaps there would not be investigations into some of the historical misconduct in the SNP. We can all throw stones at one another about misconduct. It is not relevant to the debate, but I welcome the hon. Gentleman’s attempt to put me off.
We need balance in society when it comes to the rights of workers, businesses and individual citizens.
Dr Mullan
No, I want to make progress.
Unions have a requirement to represent the specific interests of specific people who pay them to do just that. Union leaders are not invested in the wider interests of society; they are required literally to deliver for the people who pay their subs. I welcome that as an important part of society and how we get good employment law, but it also means that unions are not a benevolent part of the discussion about businesses, society and the economy. They all have interests and they represent those interests. If that is given too much weight, they can hold a business or public service in a fixed point in time, unable to change and move with the times. It is no different from the battle we fought with the luddites. If unions were around at the time of the luddites, I guarantee that they would have been the first to say, “Destroy the machines; get rid of them; we don’t want them!” They will only ever look after the short-term interests of the people they represent. That is not what we as a Government should look at.
To paint these things as black and white is a gross oversimplification of a complex balancing act. Opposition Members try to make out that we on the Government Benches are anti-union. We are not; we are anti unions running the country without balance and with a Government in their pockets. On other issues we might see whether we get the balancing act right by looking to other countries, but I think we can make those judgements on our own. Again, the Opposition are very keen to tell this Government to look to Europe to decide what is good legislation and the right way to protect workers’ rights. Conveniently, on this issue we can give examples of similar legislation in Europe, but they absolutely do not want that.
Sam Tarry
The truth emerging in this debate is that if we were to bring ourselves into line with Europe, those on the Government Front Benches would be suggesting collective bargaining levels of 80% or 90%, not the 25% we have in the UK. Will the hon. Gentleman withdraw his remark, because it is simply disingenuous and untrue that the legislation is comparable? The ILO has said so.
Dr Mullan
The hon. Gentleman anticipates my remarks. Whenever we say that, Opposition Members want to bring up differences in union law. The Government do not decide to make individual bits of legislation only if they match all the other legislation in a similar environment. This is a separate issue. Whether we have collective bargaining does not mean that minimum service legislation is or is not valid. You either think it is important to have minimum services, or you do not. Determining whether there can be a strike is completely separate from whether there are restrictions on the impact that a strike can have. I will not withdraw that remark; I stand by it.
Joanna Cherry (Edinburgh South West) (SNP)
Will the hon. Gentleman give way?
The Chairman of Ways and Means (Dame Rosie Winterton)
Order. The hon Gentleman says that he will not give way.
Dr Mullan
As I said, Opposition Members need to make up their minds. On the one hand, they want to constantly castigate this Government for moving away from what they say is the gold standard of employment relations in Europe—I do not agree with that—but when we come up with something that is done in Europe and that we want to do here, they are not interested. They talk about differences in how ballots are run and other elements that are separate from the issue of whether to have minimum service legislation.
Stephanie Peacock (Barnsley East) (Lab)
What does the hon. Gentleman say to the fact that France and Italy have legislation in place for minimum service, but have seen an increase in strikes rather than a decrease?
Dr Mullan
As I said, we will not have identical legislation to countries in Europe, but there are countries in Europe that Opposition Members frequently point to that do similar things to us. They pick and choose when they want to compare us to Europe. They hold Europe as an example, but on this occasion when we follow the example, they think it is totally irrelevant and we are way out of line. That does not make any sense and it is not a consistent argument.
Our nation cannot be held to ransom across critical infrastructure. Workers can exert their lawful power to strike in a way that creates disruption, but there must be limits, as there are with the police. That is perfectly reasonable. Under the Bill, regulations will determine specific services in each sector to which a minimum level of service will apply, and will set those levels. The regulations will be tailored to each relevant service, taking account of the different risks to public safety or the impact on daily life.
Sir Julian Lewis
I understand the thrust of my hon. Friend’s argument, and I agree with a lot of it. But does he agree that it might have a better chance of working if, when those minimum service levels are set for each industry, agreement can be reached with union representatives on what those minimum levels should be? Having reached that agreement, it would be far easier to implement the legislation.
Dr Mullan
The Government are committed to extensive consultation to set the minimum service levels, and that sets the spirit in which they want to reach the agreements. Agreements, and positive engagement with industry about them, are in place in Europe. As we have seen with the current strikes, it is not as if the will is not there to agree and recognise that there needs to be a degree of minimum service. As I have said, we have it in the police and it is part of legislation. I do not think it is right that we rely on voluntary agreements to secure others such as ambulance service workers. On principle, I do not think that it should purely be up to the negotiating process to decide that. We should aim for negotiation and for agreement, but not rely on voluntary agreements.
The Government expect to consult on this. It is not the huge attack that Opposition Members make it out to be, as we have seen with the police. We are taking a negotiated, compromised position, similar to many countries in Europe. On that, I conclude my remarks.
Andy McDonald (Middlesbrough) (Lab)
It is interesting to follow the hon. Member for Crewe and Nantwich (Dr Mullan). As a proud trade unionist, I refer the Committee to my entry in the Register of Members’ Financial Interests. For the avoidance of doubt, I declare that I do not have an £800,000 overdraft facilitated by the chair of the BBC, a multi-million-pound repayment with His Majesty’s Revenue and Customs or shares in a tax haven.
I wholeheartedly oppose this hurried, vicious and anti-devolutionary Bill in its entirety, and will vote against it tonight. I rise to speak specifically to the amendments in my name and those of right hon. and hon. Members. Our country is in crisis. Millions of workers are seeing their terms and conditions ground down and their wages eroded. Many are unable to meet their bills and are saying very loudly “Enough is enough.” Yet this Government’s response to strikes called successfully—despite the most severe, draconian balloting requirements and restrictions that they have imposed on trade unions—is to say no to legitimate pay demands and to negotiations, and to attack the very right to strike itself. Britain already has the toughest anti-union laws in Europe.
No worker wants to go on strike. It is a last resort taken at a financial cost. That desperation is evidenced by workers beating some of the strictest thresholds in the western world to do so. The reason that workers are pushed to strike is that in the face of a spiralling cost of living crisis, they have no other option. No amount of tightening the screws on trade unions will change that material fact. This Bill will do nothing to change the reality for millions of British workers who have seen their real-terms incomes drop dramatically since 2010.
Jeremy Corbyn (Islington North) (Ind)
I thank my hon. Friend for giving way and I fully support all that he has said in his speech. Would he agree that the effect of the Government’s attitude, and of this and other anti-democratic legislation, is not only to increase support for strong industrial action to win decent pay rises but to encourage many other people who want to live in decent housing and do not want to live in desperate poverty to support this wave of industrial action and bring about a fairer society?
Andy McDonald
My right hon. Friend is right. People’s response has not been to lie down and accept the Government’s bidding; they have no choice but to stand up for themselves. Labour will have no truck with this terrible attack on working people, and once in government we will not only repeal this appalling legislation but, under the expert stewardship of my hon. Friends on the Front Bench, bring in the new deal for working people to tackle in-work poverty head on. The real impact of this Bill will be that any employee who disobeys an order to work during a strike could be fired. That is simply unacceptable in a free society. I was staggered at some of the comments from Conservative Members that they did not think that was the impact of the Bill. It clearly is.
Ian Lavery
I tried to intervene on the hon. Member for Crewe and Nantwich (Dr Mullan), who I believe was a GP, and my question would have been: if a doctor, nurse, transport worker or fire and rescue service rescue worker had voted for industrial action and was then instructed by their boss to cross a picket line and was compelled to work, what would that do in terms of the duty of care from the employer to the employee and the wellbeing and mental health of those individuals?
Andy McDonald
My hon. Friend makes a good point. This is about targeting people. People will be selected for treatment under these work notices, and trade unionists will be singularly picked out to add to the humiliation and distress. It is a dreadful tactic.
John McDonnell
The practical reality is that for some workers this takes away the whole right to strike. An example in my constituency is air traffic control. There is no such thing as a minimum service guarantee in air traffic control, and the same can be said for rail signalmen. This process will extend the denial of the right to strike to whole batches of workers, and we need to acknowledge that in this debate.
Andy McDonald
My right hon. Friend has hit the nail on the head. There are workers who are going to be denied that fundamental right to withdraw their labour, and that is a step that should be taken with a great sense of foreboding and concern.
The Bill could also lead to bankruptcy for trade unions as they become exposed to lawsuits that could wipe them out. Notably, there is no minimum service required of the Government in the Bill. If workers are required to provide minimum service levels on strike days, why is there no such requirement for the Government and outsourced private providers on non-strike days? As we have seen in the course of these disputes, workers and unions are well aware of their legal and moral obligations, but this Government’s cynicism stinks. They are more than happy to sit on their hands when there are more than 500 excess deaths a month in our NHS, but they are suddenly sparked into action over concerns about public safety when strikes occur. If they were genuine in their concerns they would give those workers a proper pay award, but instead their real determination is to strip away their rights.
Patients are not dying because nurses are striking. As the RCN says so eloquently:
“Nurses are striking because patients are dying.”
Under the Trade Union and Labour Relations (Consolidation) Act 1992, it is already unlawful to take industrial action in the knowledge or belief that human life could be endangered or “serious bodily injury” caused as a consequence. In short, life and limb cover is always maintained. I know that the Conservatives are itching to sack nurses, but the RCN handbook sets out in great detail how those nurses will provide “life and limb” cover—the very task that they have undertaken on our behalf before and during covid and will continue to undertake for as long as they have the energy to do so.
The reality is that if this Bill is passed, public services will get even worse. It has long been established that the right to withdraw one’s labour is a fundamental liberty, and it is trade unions who won us the basic rights of annual leave, sick pay, the two-day weekend, the eight-hour day, health and safety protections at work and much more. We need strong trade unions, not only as a right in themselves but to protect the rights we already have and to fight for more. By attacking the right to strike, and by extension the trade union movement, the Government put all this at risk and there will be even more disruption.
The only Government internal impact assessment found that imposing minimum service levels could lead to an increased frequency of strikes. The Transport Secretary admits the new laws will not work and the Education Secretary does not want them. Inside Government there is a recognition that public services will be the likely casualty of an ideologically motivated attack on the right to strike. Much has been said by Conservative Members and by the Secretary of State in particular about their sudden love affair with the International Labour Organisation, praying in aid the ILO’s approach to minimum service levels, but what the Government conveniently omit to mention is that convention 87 of the ILO sets out the criteria that this Government want to ignore. It stresses that the introduction of a negotiated minimum service as a possible alternative to the total prohibition of strikes should be contemplated only when the interruption of services would endanger life or the personal safety of the whole or part of the population.
The Government have also omitted to say that in other jurisdictions and economies there is much greater collective bargaining by trade unions for better terms and conditions for their members. The comparison with the UK is ludicrous. The ILO says that a minimum service should be a genuine and exclusively minimum service—which this Bill does not prescribe—and that unions should be able to participate in defining such a service. As the right hon. Member for New Forest East (Sir Julian Lewis) has said, disputes should be resolved not by the Government but by a joint or independent body that has the confidence of the parties. There are examples, not only across Europe but across the world, where such practices obtain, but the Bill is as silent about them as it is about any sensible and proper safeguards, leaving the law by diktat entirely to the wide Henry VIII powers vested in the Secretary of State.
It therefore makes sense—as envisaged by amendments 83 and 84, which I commend to the House—to engage the CBI and the TUC in these matters and to pursue resolution disputes through ACAS if it comes to that. In any event, the High Court certification set out in new clause 1 is necessary to ensure that this country meets its full obligations, in respect not only of convention 87 of the ILO but of the obligations set out in the European social charter of 1961 and under the UK-EU trade and co-operation agreement. We are parties to all these treaties and we need to make sure that we abide by them. New clause 1 addresses that. As it stands, we have not seen any risk assessment testing those obligations. Professor Keith Ewing told us in the Business, Energy and Industrial Strategy Committee that
“we cannot remove the EU social rights inheritance, because of article 387, where the removal is motivated by trade and investment, which seems to be the motivation here.”
He went on to say:
“Brexit does not mean release from international obligations or even from our continuing obligation to comply with European law.”
In 13 years of Tory rule, numerous pieces of anti-trade union legislation have been passed. The Strikes (Minimum Service Levels) Bill is only the latest attempt to neuter the power of workers, and there is no reason to assume that it will stop there. This dreadful, ideologically insane Government are thankfully on their last legs, but in the time they have left, they are clearly determined to continue their attack on the rights of workers and the services they work in. It will be another sad day for this country if the Bill passes its Third Reading tonight, but the Government should be in no doubt that, in doing this, they will be hammering another nail into their own coffin.
Several hon. Members rose—
The Chairman of Ways and Means (Dame Rosie Winterton)
Just a little reminder that I said under 10 minutes would be helpful, otherwise not everyone will get in.
Laura Farris (Newbury) (Con)
It is a pleasure to follow the hon. Member for Middlesbrough (Andy McDonald). I will pick up where he left off. The right to strike is neither absolute nor unlimited. He was correct to point the Committee to the 87th convention of the ILO on freedom of association and protection of the right to organise, and he will be aware that article 9 of that convention sets out the limited circumstances in which any member state has a margin for discretion to decide whether certain sectors can be banned from striking altogether. As a matter of fact, the United Kingdom exercises that qualification in restricting the right to strike for police officers, members of the armed forces and prison officers.
Despite the hon. Gentleman’s language about this country’s having very restricted union rights, Opposition Members must concede that there has been a high degree of consensus while in government. I gently remind him that when Labour was last in government, after the numerous changes to strike law in the 1980s, it published the “Fairness at Work” White Paper in 1998. Its foreword stated:
“There will be no going back. The days of strikes without ballots, mass picketing, closed shops and secondary action are over.”
Where I agree with the hon. Gentleman, although I present it from a different angle, is that the issue throughout debate on this Bill is whether the proposed restrictions are necessary and proportionate. Amendments 9 to 14 and 73 to 75, tabled by the right hon. Member for Ashton-under-Lyne (Angela Rayner), who is no longer in her place, and other Labour Front Benchers, would hack out each of the sectors that have been designated as sufficiently important to warrant a minimum service level—education, transport, nuclear decommissioning, border security, fire and health.
The hon. Member for Middlesbrough was a tiny bit disingenuous when he read from the ILO’s publication and said that the ILO allows a minimum service level only in
“services the interruption of which would endanger the life, personal safety or health of the whole or part of the population”.
He knows as well as I do that he could and should have read on, because the ILO allows minimum service levels in
“services which are not essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence…or in public services of fundamental importance.”
Earlier today, every Member of this House received a House of Commons Library briefing on this Bill. It included an important 2012 report from the ILO, which I know many Members will have read, that provides some assistance:
“the right to strike is not absolute and may be restricted in exceptional circumstances, or even prohibited”.
The report gives three examples of where that might apply. The first is certain categories of public servants, and relevant to this debate is the reference to teachers:
“the Committee considers that public sector teachers are not included in the category of public servants ‘exercising authority in the name of the State’ and that they should therefore benefit from the right to strike…even though, under certain circumstances, the maintenance of a minimum service may be envisaged… This principle should also apply to postal workers and railway employees, as well as to civilian personnel in military institutions when they are not engaged in the provision of essential services in the strict sense of the term.”
In relation to the National Education Union, which is striking on Wednesday, and the National Union of Rail, Maritime and Transport Workers, which seems to be striking most of the time, the Opposition know, or at least ought to know, that the ILO thinks that minimum service levels should apply both in education and transport.
Richard Burgon (Leeds East) (Lab)
The hon. Lady is making a very interesting contribution. She and the Government are making out that the International Labour Organisation somehow supports this measure. However, its director general has said that he is “very worried” about this Bill. Given that, will the hon. Lady invite the Minister to withdraw his assertion that the ILO supports this measure?
Laura Farris
An experienced employment lawyer like the hon. Member for Middlesbrough will know the true mechanics very well. A union and probably the TUC and Professor Keith Ewing, because he did the last one, will put in a written submission to the ILO, and its committee of experts based at the ILO office in Geneva will respond in due course. It is not appropriate to say that something is the complete answer of the ILO because somebody has waggled a microphone under somebody’s nose at Davos. There is a procedure.
I hope my speech is not confusing the hon. Member for Leeds East (Richard Burgon), because I am not suggesting for a moment that what was sent to MPs this morning is a comment on the United Kingdom. It is the ILO’s statement of general principles on minimum service levels, and I will continue, if I may. The ILO says that the second acceptable restriction is where strikes take place in activities that may be considered essential services. It lists, at paragraph 135 of its 2012 report:
“air traffic control, telephone service…firefighting services, health and ambulance services, prison services, the security forces and water and electricity services.”
The report continues:
“In situations in which a…total prohibition of strike action would not appear to be justified…consideration might be given to ensuring that users’ basic needs are met or that facilities operate safely or without interruption, the introduction of a negotiated minimum service…could be appropriate.”
Joanna Cherry
What the hon. Lady is saying is very interesting, but does she accept that, as we are in Europe, any analysis of the legality of these proposals has to start with article 11 of the European convention on human rights? Can she point to any country in Europe with Government-enforced minimum standards that can lead to the sacking of workers on strike? [Interruption.] The Minister should listen to the question carefully, because the answer will be on the record. Can the hon. Member for Newbury (Laura Farris) point to any other country in Europe that has Government-enforced minimum standards, without negotiation and without arbitration—
The Chairman of Ways and Means (Dame Rosie Winterton)
Order. The hon. and learned Lady will be trying to catch my eye later, and I do not want interventions to be too long.
The Chairman
I know, and I was going to say that it is important that interventions are not interrupted. Has the hon. and learned Lady finished?
Joanna Cherry
Can the hon. Member for Newbury point to any country in Europe in which, as a result of Government-enforced minimum standards, without any negotiation and without any arbitration, a worker can lose his or her job, other than—wait for it—Hungary or Russia?
Laura Farris
The hon. and learned Lady is right that negotiation is required. I was shocked to find that, in France, the sanction for a person who refuses a requisitioning request is via the criminal courts. I did not know that, and I did not know it is the case in Canada, too. It may be that I have misread the legislation, and that it is a “life and limb” exemption—I am not familiar enough with French legislation.
Andy McDonald
I will help the hon. Lady. Is she aware that the ILO is saying that unions should participate in defining minimum service levels, and that any disputes should be dealt with not by a Government but by an independent body? Does she agree with that? It is not in the Bill.
Laura Farris
I agree with the hon. Gentleman, and it is a good point. Even though the ILO has set out, in black and white, the services in which it says the right to strike might lawfully be restricted, and even though its list includes every single service that the Government have included in the Bill—in fact, the ILO goes much further—the Opposition, for some reason, seem to wish to take out every one of those essential services. They would say no to a minimum service level when the schools are on strike, no to any key worker being able to put their kids in school and no to any vulnerable child being able to be looked after. They would say no to the trains running at all during the rush hour. The Opposition need to be clear with the British people about why their amendments deviate so far from international norms. It seems to be the case that, in their view, the country should grind to a standstill.
Laura Farris
I will make a bit of progress, because I am conscious of time.
Let me just deal briefly with the issue of sanction, because it has come up. The hon. Member for Middlesbrough will know—he is an employment lawyer, but there may be others—that section 219 of the 1992 Act is uniquely convoluted in the way it confers a protection on the worker and on the union in terms of the right to strike. The statutory language is that there is immunity in suit from the tort of inducement to breach of contract—that is the right to strike as expressed in domestic law. What I think the law is doing here in terms of sanction is removing the immunity—that is what is happening; that is the logical consequence of anything that restricts the right to strike. I just want to say this: nobody in this Chamber envisages sacking nurses or any other category of emergency worker, but it must be right that, if the section 219 immunity is lost or in any way qualified, we bring into play disciplinary sanctions. That must be right and I accept that.
I have said in response to the hon. and learned Member for Edinburgh South West (Joanna Cherry) that both France and Canada seem to have a far more draconian system—[Interruption.] She can correct this when she makes her speech. Again, I looked at what the ILO said about this issue. I will finish with this Dame Rosie, because I can tell that I am being annoying. The ILO said that if the strike is determined to be unlawful by a competent judicial authority on the basis of provisions that are in conformity with the freedom of association principles, proportionate disciplinary sanctions may be imposed. I do have some improvements that I think can be made to the Bill, but I am going to take them offline and say them afterwards.
Several hon. Members rose—
The Chairman of Ways and Means (Dame Rosie Winterton)
Let me say to the hon. Lady that she was not being annoying; I thought she made a thoughtful speech. I also want to emphasise that I cannot impose a time limit. I simply make a plea to colleagues that if everybody is going to get in, a little discipline might not go amiss on the time front.
Christine Jardine (Edinburgh West) (LD)
I rise to speak against this Bill and in support of amendment 2, which stands in my name and that of my party. Having listened to the debate so far, it strikes me that we can dance on the head of a pin all we like, but this legislation would not, in any way, resolve the situation the country is facing. The Bill does not address the problem; it simply seems to take a mallet to peel a peach.
My amendment, which I ask the Committee to support, would address the problem, because it calls on the Government to look at the level of minimum service they are calling for and ensure that it did not exceed the relevant service recorded on any day of the 12 months previously. It also seeks to ensure that before making regulations on minimum service the Secretary of State would lay before Parliament a report showing that that condition as to the previous 12 months had been met.
I proposed that because I would like the Government to ensure that we can depend on a minimum service level in this country regardless of whether there are strikes and that their attention is to the service provided to the public rather than to attacking the unions. In his comments, the right hon. Member for North East Somerset (Mr Rees-Mogg) confirmed that this legislation has been on the books, or in thoughts, for some time and that it is not simply about the present strikes but rather about addressing the issue of industrial relations. I would like the Government to think about whether, in talking about setting a minimum service level, the level of service we have at the moment is acceptable or whether they have run public services into the ground, and whether all they are doing with this Bill is shifting the blame on to workers rather than accepting their own failures.
This Bill is yet another attempt to use the workers and the situation we are in, with crisis after crisis, as a political football to distract from the mismanagement of public services that has led us to this point. If the Government truly want to find a solution to these problems, surely the answer is to take a step back and look at the poor levels of service on days when there is no industrial action. Those poor levels of service have not arisen through anyone’s will to have low services. It has happened simply because of lack of resources and investment in our public services, which for many years, including through the pandemic, staff have struggled to improve on and work through, in conditions that they believe in many cases are unacceptable.
Anna Firth (Southend West) (Con)
It is a pleasure to follow the hon. Member for Edinburgh West (Christine Jardine) and to have listened to the very learned submissions from my hon. Friend the Member for Newbury (Laura Farris), who brings considerable experience to bear from a distinguished career at the Bar in this area. I was grateful to listen to those submissions.
I rise to speak against these amendments, particularly amendments 9 to 14, and 73 to 75, because I take the simplistic view that all of us here have been elected to represent all of our constituents and all of our communities. That requires that we balance the rights of people to strike. As I said when I last spoke in this debate, I do accept that it is a fundamental right of public sector workers to be able to strike, but it is not unqualified, because we have already excluded the police and the Army from that right. The Bill seeks to restore the balance between the right to strike and the right of the public to know that access to key, often lifesaving, services and their livelihoods will be protected. Moreover, the Bill seeks to ensure that when public sector workers wish to exercise that right to strike, they can do so safely. For those reasons, I do not believe the Bill needs to be amended.
We have heard a lot said about a poor service on days when there are no strikes, but I am delighted to say that health workers in Southend West have not joined in with the national strike action. So I am standing here to ensure that everyone who is not lucky enough to live in picturesque Leigh-on-Sea and Southend has the same levels of care on all days. The Bill is a recognition that some of our public services are vital and that hard-working taxpayers deserve a minimum level of service. The public have the right to get on with their daily lives and access public services just as much as workers have the right to strike.
Those public services must include health, education and transport. I was deeply disappointed to read on a BBC breaking news alert only this afternoon that the Fire Brigades Union has opted to strike. I will certainly be in touch with my local police and crime commissioner to ask how we can minimise any disruption on those days to people living in my constituency. I am also disappointed that the planned strikes in schools are going ahead, which is not just a problem for students. In my constituency, two schools, Chalkwell Hall Junior School and Heycroft Primary School, are going on strike, affecting nearly 900 pupils. Those schools will close and that is a crying shame. Those children have not had a single year of undisrupted education since they started.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
Does my hon. Friend think that it would be helpful if there were a requirement for a minimum notice period, so that schools could at least let parents know that they will close? At present, many schools affected by these decisions do not know what will happen on Wednesday.
Anna Firth
My hon. Friend makes a critical point. Not only should there be decent notice, but schools should all be required to run a minimum service, so that we do not have our children’s education disrupted again. A total of 270 million pupil days have already been lost through the covid pandemic and our children deserve better.
James Sunderland (Bracknell) (Con)
I have been listening to Members from both sides of the House since the start of the debate, but I am still somewhat confused by the Opposition’s position. As a humble taxpayer in Bracknell representing key workers and ordinary people who want to go to work, I wonder whether my hon. Friend agrees that ordinary people living in Bracknell and beyond—right across the UK—have a fundamental right to be able to send their children to school, to be taken to hospital in an ambulance if they fall sick, and to go to London on the train if they want to go to work. I am confused. Can my hon. Friend help me?
Anna Firth
My hon. Friend is making the critical point that we represent all of our constituents—not just those who are public sector workers but those who need to go to work in the private sector in order to maintain their way of life and look after their families. That is why the school closures will be a particular problem to many hard-working parents who may have to take a day off work to look after their children.
Anna Firth
I will not be troubling the Committee for much longer, so I will carry on and get through my speech.
I know that we are not debating the specifics of the current strikes today, but it is worth saying again that these wage demands are completely unaffordable. Indeed, if we were to cave in to all of the unions’ wage demands, we would be looking at a bill not far short of £30 billion a year. That would have a huge impact on inflation and cause a permanent increase in our cost of living. In effect, that would mean a pay cut for every single one of our constituents.
Tonia Antoniazzi (Gower) (Lab)
In 2010 we had a Tory-Lib Dem coalition; that is when I became political and I now sit on these Benches. I was a teacher and it is because of the Lib Dem-Tory coalition that we are in this mess now. We cannot afford to give a 15% pay rise now, but does the hon. Lady not realise that if we had not had the cuts we have had throughout the 13 years that her party has been in government, we would not be where we are now?
Anna Firth
I do not agree with the hon. Lady. There have been some pay rises over that period. The hon. Lady forgets that. I have huge respect for people coming into the House from the teaching profession. My own mother was a teacher and she would never strike. The hon. Lady must remember that, when she came into the House, our public finances were in a state. It is a long time ago, but, none the less, the reality was that there was no money.
Several hon. Members rose—
Anna Firth
I wish to finish my speech.
The Bill will ensure that when people call 999, they can get an ambulance. It will ensure that a fire engine will come if there is a fire. It will ensure that my constituents can send their children to school and travel to work on public transport. This is pragmatic legislation that will bring the UK in line with other countries, such as France and Spain, which already have such legislation in place. I will be supporting the Government’s very sensible Bill, which will protect all my constituents. I urge Opposition Members to do the same, even if that means that their union paymasters do not cough up ahead of the next election.
Beth Winter (Cynon Valley) (Lab)
I speak for millions of trade unionists, public sector workers, key workers and people up and down the country when I say that this Bill is disgraceful, draconian, unconstitutional, undemocratic and a clear attack on workers’ rights.
This afternoon, I will limit my main comments to an amendment of mine that seeks to exclude Wales from the application of the Bill. I also wish to associate myself with a number of other amendments, including those tabled by my right hon. Friend the Member for Ashton-under-Lyne (Angela Rayner) on the Front Bench, my hon. Friend the Member for Leeds East (Richard Burgon), my right hon. Friend the Member for Hayes and Harlington (John McDonnell), and my hon. Friends the Members for Wansbeck (Ian Lavery), for Gateshead (Ian Mearns), for Middlesbrough (Andy McDonald), for Coventry South (Zarah Sultana) and for Ilford South (Sam Tarry).
When I opposed the Bill on Second Reading two weeks ago, I said that it is clear that it will
“overrule the powers and policies of the devolved Governments”.—[Official Report, 16 January 2023; Vol. 726, c. 123.]
This legislation before the Commons has been introduced without any discussion with the Welsh Government. It has been introduced despite it conflicting with the Social Partnership and Public Procurement (Wales) Bill before the Senedd. A different approach is being taken in Wales, and I urge Government Members to take note of how things have been done differently—and successfully—in Wales. It is an approach that fosters collaboration and co-operation between Government, employers and workers, and it is encapsulated in the Social Partnership and Public Procurement (Wales) Bill, which places partnership working on a statutory footing. It really does work. It is this partnership approach that meant that the Welsh Government and Transport for Wales were able to negotiate a pay settlement recently that was accepted by the RMT.
Liz Saville Roberts
The hon. Member is giving a powerful speech. What we are seeing in Wales is co-operation and co-working in action, and service is being improved because of it, which, of course, is what good Government and good relations with unions is all about.
Beth Winter
I agree with the right hon. Member.
A joint statement by Wales TUC and the Welsh Government called on the UK Government to cease their controversial approach and learn lessons from the collaborative, social partnership approach adopted in Wales. It said that the UK Government should allow the rail companies and RMT to negotiate a deal that is fair and acceptable to Network Rail employees and employees of the UK train operating companies. That is the approach guiding the Welsh Government and the Social Partnership and Public Procurement (Wales) Bill.
The Strikes (Minimum Service Levels) Bill before us today is in complete conflict with that legislation. Clearly, there has been no opportunity for the Welsh Government to timetable a legislative consent motion in the Senedd. If they had done so, they would have recorded that the Senedd would withhold consent for this piece of legislation.
The Welsh Government’s view is clear. First Minister Mark Drakeford has stated:
“The Welsh Labour Government does not believe that the response to strikes should be to bring forward such restrictive and backward-looking laws, that trample over the devolution settlement.”
Counsel General Mick Antoniw has said in the Senedd:
“The way to resolve industrial disputes is by negotiation and agreement.”
The Wales TUC has also been very clear. Its general secretary, Shavanah Taj, has said that
“this Bill will prolong disputes and poison industrial relations”,
and has urged all Welsh MPs to reject the Bill.
That is why I have tabled four amendments, each of which seeks to prevent the application of this legislation from taking effect in Wales. I have sought to amend clause 3 by asserting that Senedd Cymru can still pass legislation counter to this Bill. In amendment 77, I have sought to remove the application of the Bill to Wales. In amendments 88 and 97 I seek to remove the powers in the Bill to repeal primary legislation passed in the Senedd, as the Government are seeking to do on agency workers involved in strikes. In amendment 98, I seek to ensure that Welsh workers employed in Wales by English firms are not impacted by this legislation.
I also support a raft of other amendments, as I said earlier, including Opposition amendment 1, which would mitigate some of the most authoritarian elements of the Bill and preserve existing protections against unfair dismissal, including for an employee who participates in a strike contrary to a work notice under the Bill. I also associate myself with amendments setting out the importance of meeting conditions set by the ILO, as already discussed. There must be negotiation between the social partners rather than the imposing of minimum service levels, as this Bill will do.
Chris Stephens
Let me first refer to my entry in the Register of Members’ Financial Interests. I notice that not one Conservative Member has referred to their interests in terms of backing from employers, but we will move on.
I want to speak to amendments 39, 42 and 48 and new clause 4. There were 120 amendments tabled to this Bill—a Bill that, in reality, is a page and a half of detail. That would suggest that there are some problems with the Bill. I noted that the right hon. Member for North East Somerset (Mr Rees-Mogg) talked about how terrible the Bill was; he will support it, which is up to him, but he was correct to identify some of the problems with it. There should have been line-by-line scrutiny.
When I heard some of our Conservative colleagues speaking earlier, I was in the middle of changing a password. I had to settle for that wonderful Scottish phrase, “In the name of the wee man!”, because I can only conclude that they were talking about a different Bill entirely from the one before us today and the amendments tabled to it. I am sorry to say that what we have heard from the Government about this Bill in the past few weeks is a deadly political cocktail of arrogance, ignorance, misplaced confidence in their ability and a complete lack of knowledge of a trade union working environment.
Anyone would think, from listening to some of the rhetoric from those on the Government Front Bench in the last couple of weeks, that it was the trade unions that were the bosses, and the employers who were the innocent, downtrodden and low paid. The irony, of course, is that the Government went on strike last summer, without a ballot—they had the ballot afterwards. It was okay for them to go on strike last summer to force workplace change, but it is not okay for people in the fire service, education, health or transport. You really could not make up some of the statements the Government try to get away with.
Indeed, the Government are ignoring existing legislation. Not one Conservative Member in the Chamber today has acknowledged section 240 of the Trade Union and Labour Relations (Consolidation) Act 1992, which provides for safety and “life and limb” cover. That is a must in existing legislation and there is a custodial sentence if a trade union does not supply it. The Government do not seem to know that, and it is incredible that they do not understand the existing legislation. Emergency “life and limb” cover is already there in legislation.
Sam Tarry
The hon. Gentleman makes a good point. In the recent ambulance and paramedic strikes, it was clear in the action all across the country that those local agreements that protect for life and limb worked pretty well. People did get the service they needed in those emergency situations where life and limb would otherwise have been challenged. Surely the Minister and the Government must listen to that point.
Chris Stephens
The Government should listen to that point, which the hon. Gentleman has made for me. If there had been no life and limb cover in the disputes in the past few weeks and months, the first thing the Government should have done would be to encourage the employers to take the trade unions to court to enforce that life and limb cover. I note that they have not done so.
Sir Edward Leigh (Gainsborough) (Con)
This life and limb point is very important. We must balance people’s right to strike against the public’s right to a minimum service guarantee. Can the hon. Gentleman explain how the right to life and limb in present legislation would cover a strike that stops all trains, for instance?
Chris Stephens
I will take that argument on, because I am coming on to amendment 39. Listening to our Conservative friends on the Government side of the Chamber, anyone would think that this Bill was about setting a minimum service level across the public sector. If only that was the case. That is not what it does. It sets a minimum service level only in the event of industrial action—on strike days, not non-strike days. The Minister has not yet told us what amendments he will accept—maybe that is the theatre he will provide at the end—but amendment 39 makes clear the concerns that many of us in this House have that minimum service levels should not be higher on a strike day than on a normal working day.
The reason for that, as anyone who has a trade union background can tell us, is that when employers come to trade unions to discuss the “life and limb” cover and ensure that all those arrangements are made, some employers then ask for more people on a strike day than they do on a non-strike day. That is just a fact—that is what employers try to do. Amendment 39 would address the point that a minimum level of service on a strike day should not be higher than it is on any other normal day.
Of course, that raises the question of the Government trying to get away with marking their own homework on the ILO conventions. They have determined the Bill complies with the ILO conventions—never mind what anybody else says—because they say so. The Government have marked their own homework, and they say we should be very grateful that they have done so; they are ILO-compliant, so we should just be quiet and accept it. Well, I am sorry, but I like to speak truth to power and to check things—always checking what is in the paperwork and in writing was part of my trade union training. Amendment 39 would ensure that there is a very real sense of the Government’s homework being marked, and that the Bill is compliant with ILO conventions and with the EHCR, which my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) mentioned.
I will conclude my remarks on the issue of devolution, Madam Deputy Speaker. It is not just about Wales and Scotland, or indeed the Greater London Assembly. Every local authority in England that has a service of the sort mentioned in the Bill could have a minimum service level imposed on it by the Secretary of State for Business, Energy and Industrial Strategy. I do not know about you, Madam Deputy Speaker, but it worries me to see the Secretary of State tweeting and referring to the weekend as unofficial strike days, as he did a few months ago. They were rest days, not unofficial strike days. I am concerned that we have a Secretary of State who does not seem to know what happens in a trade union working environment but is trying to set minimum levels of service on a strike day, not just in England, but in Wales and Scotland, affecting their devolved competencies.
If there was a strike in Glasgow by McGill’s Buses, it would be the Secretary of State who determined what the minimum bus level was for that weekend. That is really quite incredible—[Interruption.] The Minister can chunter all he likes, but that is what the Bill says. Agreeing to new clause 4 would sort out that issue, so perhaps the Minister could tell us which amendments he will accept.
Andy McDonald
I hear the Minister chuntering from a sedentary position about the Bill not covering buses, but that is not what it says. It covers “transport services” and its jurisdiction is UK-wide.
Chris Stephens
The hon. Gentleman makes an excellent point. That is the problem, is it not? The Bill says “transport services”, and that could be anything. It could be buses, taxis or the horse and cart for all we know, because the Bill is so open-ended.
Madam Deputy Speaker, I hope that the Government will look at the amendments that my hon. Friends and I have tabled, which are an attempt to improve the Bill. Our main reason for opposing the Bill is that the Government will be impinging on devolution and on human rights, and they do not know what happens in a trade union-organised environment. That is why the Bill should not get a Third Reading.
The Chairman of Ways and Means (Dame Rosie Winterton)
Just a tiny point of information: when I am sitting at the Table, I am not Madam Deputy Speaker; I am either Dame Rosie or Madam Chair. I call Rachael Maskell.
Rachael Maskell
Thank you, Dame Rosie. I rise to support many of the amendments. Not only is this Bill bad law, but it will make the industrial landscape far worse. The Minister is trying to make a monster out of something that does not exist and a problem that does not occur.
The Bill needs correcting to comply with international law. I am grateful to Members for tabling amendments 39 and 34, which highlight how the Bill is at odds with ILO convention 87. That is why my hon. Friend the Member for Middlesbrough (Andy McDonald) tabled amendment 83, which would bring that convention into law by creating a framework by which the Bill must go forward—otherwise, it will just spend months in the courts, and I expect that that is where it will end.
We are talking about safety, so not having an impact assessment is quite unbelievable, not least when we know that many of the clauses could well result in services being more unsafe than they are currently. I draw the Minister’s attention to the fact that we already know that those services are unsafe. On Second Reading, I raised statistics from the Royal College of Emergency Medicine about the health service being unsafe, with 500 additional deaths every single week. The Secretary of State dismissed those figures. However, a witness from the Royal College of Emergency Medicine set out his peer-reviewed workings when he appeared before the Health and Social Care Committee.
Mick Whitley (Birkenhead) (Lab)
I begin by declaring an interest as a proud and long-standing member of Unite the union.
I rise to speak in support of amendments 91 and 92, which stand in my name and that of my hon. Friend the Member for Easington (Grahame Morris) and others. These amendments reaffirm the principle that a trade union is a democratic organisation beholden to the will of its members, and not the other way around. That might be an alien concept to a Government who have spent the last year forcing through legislation that undermines the most basic rights of their citizens, but it is an article of faith for those of us in the labour movement.
These amendments are just two of the many brought forward by Members on the Opposition Benches, who have among them many lifetimes’ worth of experience in the trade union movement. It is a shame that that experience is so obviously lacking on the Government Benches, or else the Government might not have brought a Bill to the House that the general secretary of the TUC has rightly denounced for being
“undemocratic, unworkable, and almost certainly illegal.”
We must confront the uncomfortable truth that no amount of tinkering in Committee could ever hope to salvage this Bill. It is, frankly, rotten to the core and a grotesque affront to our most basic democratic principles. As my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) has written today, anybody who
“is concerned about individual liberty and freedom should be opposed to this attack on the fundamental right to withdraw your labour.”
Since the Business Secretary first confirmed on 10 January that he would be bringing forward this Bill, we have been subjected to a torrent of tedious lectures from those on the Government Benches about the responsibilities that key workers have towards the public. What right have a Government who have led this country into the worst recession of any G20 economy bar Russia, and who preside over the highest level of child poverty in a generation, to lecture the nurses, ambulance drivers and teachers who saw this country through its darkest days since the end of the war?
The Business Secretary has even had the temerity to tell the House:
“The British people need to know that when they have a heart attack, a stroke or a serious injury, an ambulance will turn up, and that if they need hospital care, they have access to it.”—[Official Report, 10 January 2023; Vol. 725, c. 432.]
After 12 years of Tory failures, that is not even a guarantee he can make to my constituents when there is no strike action. If he wants to know who is failing the public, he does not need to turn to the picket lines; he need only look in the mirror.
This Wednesday, teachers, civil servants and train drivers will take to the picket lines in what is expected to be the single largest day of industrial action in more than a decade. Whatever Government Members might believe, these are not radicals intent on the overthrow of the state; these are ordinary, conscientious public servants who, after a decade of real-terms pay cuts, simply cannot take it anymore.
Instead of electing to sit down and engage in good faith about the real issues that are driving public workers across the country to such desperation, this Government have instead opted to bulldoze through this House in only a week a Bill that will do lasting and irreparable harm to our democracy, without adequate scrutiny or reference to the devolved Governments in Cardiff and Edinburgh. I will be voting against the Bill in its entirety this evening. On Wednesday, I will proudly stand with striking workers exercising their democratic right to demand better in the midst of this Tory cost of living crisis.
Joanna Cherry
I rise to speak to amendments 115, 116 and 117, which stand in my name. The Joint Committee on Human Rights is about to commence our legislative scrutiny of the Bill but, given the Government’s timetable, any amendments that the Committee recommends at the end of that scrutiny will require to be laid in the Lords. I have therefore tabled these three amendments as a way of probing the Government’s intentions in relation to the three issues I raised on Second Reading: the fact that the Bill is not really about safety levels at all; the inaccuracy of claims that the Bill reflects current practice elsewhere in Europe; and the very real risk that these proposals are in breach of the United Kingdom’s obligations under the European convention on human rights and international labour law.
The Government’s ECHR memorandum acknowledges that the Bill engages article 11 of the ECHR, and that is where our legal analysis should start, not with the ILO. As I said in my speech on Second Reading, it is interesting to compare the ECHR memorandum for this Bill with the ECHR memorandum for the Transport Strikes (Minimum Service Levels) Bill, which I think probably has a slightly more accurate description of the law. I would love to know why the Government changed their position between the two memorandums. No doubt we will not be favoured with that information.
Article 11 protects the right to strike as an aspect of free association. It is, as Members have said, a qualified right, meaning that its protections are not absolute, but any interference with its protections must comply with the requirements set out in article 11(2). Any restrictions on the rights protected under article 11 must be in accordance with the law and must pursue one of the legitimate aims set out in article 11(2). The most recent ECHR memorandum states that minimum service regulations have the legitimate aim of
“protecting the rights and freedoms of others”
because of
“the disproportionately disruptive and harmful impact that strike action has on the public, on their lives and on the national economy”.
In contrast, the Department for Business, Energy and Industrial Strategy’s press release for the Bill said that the new law would reduce risk to life, and Government Ministers and spokespersons have made much of that as a justification for the Bill—the Minister was at it again today. The ECHR memorandum, however, does not list public safety or the protection of health as one of the legitimate aims of the Bill.
Ian Lavery
I rise to speak to amendments 78, 95 and 96 in my name, which focus on the instruction of people to work that is encompassed in a work notice. Amendment 78 refers to the removal of the protection for those refusing to work on strike days, and amendments 95 and 96 would ensure that people receive a copy of the work notice and other related details.
I will focus on the legislation. This is a sackers charter that is about destroying the very fabric of the trade union movement. People say that the devil is in the detail, and it certainly is when we read this Bill. When the Minister comes to the Dispatch Box, I ask him to confirm, for everybody concerned, whether an individual who is instructed by a work notice that they must go to work on a strike day, but then refuses, will not be sacked. I have a lot of time for the Minister—in fact, I am nearly calling him an hon. Friend—
Ian Lavery
I hear my right hon. Friend say, “Steady!”, but I want the Minister to confirm that, because that simple question has been asked by many hon. Members tonight and he shook his head on every occasion. Simply, for the sake of individuals who are instructed by a work notice to cross the picket line, will they not be sacked? Never mind the situation whereby their protection under the unfair dismissal regulations will be withdrawn—what does that mean? If that is withdrawn, it means that they will be sacked. That is exactly what it means—we do not need to be employment lawyers to recognise that.
The Bill is also about attacking individual members in the workplace, particularly trade union representatives. If there is going to be a strike in a workplace, perhaps about health and safety, and the trade union representative is advocating strike action because that is what they are elected to do, but the boss—the gaffer—gives them a work notice and says, “You’re the person who’s got to cross the picket line,” how does that work? In the main, we have fair bosses and bad bosses, and bad bosses will pick out people they can get rid of as quickly as possible. A trade union rep advocating action on a health and safety issue could be dismissed, because the protection is gone for someone who refuses to cross the picket line and go into work. Even Conservative Members understand that that is not fair in any way, shape or form. How can it be? Individuals have the right, regardless of work notices, to withdraw their labour. It is a basic human right. Here we have legislation that not many people—even in this place—want; it is a knee-jerk reaction. It is what happens when the Conservative party is cornered and is 25 points behind in the polls. What can unify them? I will tell you what unifies the Tory party: attacking the trade unions. That gets them speaking. That is the true red meat of unifying Tory politics. But tonight there have not been many speakers from the Conservative Benches.
An accusation has been made that trade union members are not ordinary people, but they could not be more ordinary if they tried. They are the fire and rescue service people who run towards fires and towards those in desperate need of being rescued; as we have seen, sadly, a member of the Scottish Fire & Rescue Service has just lost their life. These are ordinary people. Nurses are ordinary people saving lives on a daily basis. Transport workers kept the country running before the pandemic, during the pandemic and after it.
The work notice is a bosses’ charter. I have spoken about the duty of care of an employer to an employee. What happens if someone, despite campaigning for action, is told by their employer that they must go to work? What will be the impact on that individual’s wellbeing? What impact will it have on mental health in the workplace when people are compelled to work? It is not short of a form of industrial slavery to compel people to go to work against their wishes.
It is not the same in Italy. It is not the same in Germany. It is not the same in France. It is different. Stop arguing the cheat, because it is completely different, and that has been highlighted by speaker after speaker, particularly with regard to the difference in collective bargaining and sectoral collective bargaining. There has not been an impact assessment or any consultation with the trade unions or those who will be involved. This is simply Government diktat. It is draconian, authoritarian legislation that is unfit for purpose. It is unfair, undemocratic, unworkable and unsafe. It is unfit for purpose. I am proud to be voting against it tonight.
Vicky Foxcroft (Lewisham, Deptford) (Lab)
I declare an interest as a proud member of Unite the union and GMB. It is great to follow my hon. Friend the Member for Wansbeck (Ian Lavery).
May I start by saying how outrageous it is that we have only five hours to debate this extremely important and dangerous legislation? As has been mentioned many times before, there have been well over 100 amendments tabled to the Bill, showing its numerous flaws. In the brief time I have, I will touch on a few.
First, on the retention of protections against unfair dismissal, as covered by amendment 1, too many people already have very little protection in that regard. When I was a trade union official, I frequently represented members whose unscrupulous employers sought to dismiss employees because they dared to challenge their working conditions. I recall in particular one member who had MS and had to work with bank notes, which triggered her condition. Rather than looking into redeploying her to a more suitable position, the employer sought to dismiss her. To add insult to injury, she was a trade union rep herself and had often stood up for other members. Sadly, the laws this Government are seeking to water down further did not protect her.
Gavin Newlands
Before I speak to my amendments, I want to address a couple of points. Government Members always talk about ordinary hard-working people. Firefighters, nurses, teachers, doctors and train drivers are all ordinary hard-working people too. Indeed, they are the epitome of the hard-working ordinary families who the Tories talk about so often. I really wish they would stop othering people who are forced to strike. Indeed, I call them ordinary workers, but many of them do extraordinary things, and they include firefighters who run towards danger, like Barry Martin, who sadly died in the Jenners fire. I would like to pass on my condolences to his friends, family and colleagues.
I would like to speak to amendments 106 through 114, standing in my name and, in some cases, Plaid Cymru colleagues. Amendment 107 is fairly straightforward and would leave out Wales and Scotland from the extent of the Bill. Quite simply, the Tories have no mandate for this Bill—or any other, actually—in Scotland or Wales. The last time they won an election in Scotland, Tony Bennett was top of the charts and a three-piece suit in non-crushed velvet would set you back 59 guineas, or 12 shillings and thruppence—for the record, I do not have one.
Gavin Newlands
My hon. Friend the Member for Glasgow South West (Chris Stephens) was wearing one when he was here earlier.
In every single election since then—17 UK general elections, six Scottish general elections, elections for district councils, regions, boroughs and counties, and elections for the European Union; ah, remember that?—the Tories have failed to win a majority in Scotland. There have been 68 unbroken years of failure, and rejection at the ballot box by the people of Scotland. Indeed, the only reason they had MSPs in the early years of the Scottish Parliament was due to a proportional representation system that they opposed, and continue to oppose for this place.
The Tories are a busted flush in Scotland, an archaic piece of electoral history, and they have been for decades, yet Tory Ministers have the gall to stand at the Dispatch Box and try to legislate to attack the rights of workers in Scotland. Scotland does not want this. Scotland is a modern country, and modern countries have a modern industrial relations policy. Modern countries treat their citizens like human beings, not a force to be crushed, and we have a mandate from the electorate for just that. Given that the Scottish Government have indicated that they will oppose this legislation, I say to the Minister for Science, Research and Innovation—who has just sat down on the Front Bench—and his colleagues: save yourselves the trouble, accept the amendment, or any of the others that do something similar, and exclude Scotland and Wales from Tory delusions.
Amendments 106, 109 and 111 would exempt transport services and exclude devolved services in Scotland from being subject to a work notice. ScotRail is safely under public ownership in Scotland. We are utterly opposed to forcing workers into work, but—dare I say this? Do not tell headquarters; we will keep it our secret—there is the possibility that the SNP might not form the Government in Scotland. These amendments would simply guarantee that, in the brief period between now and Scottish independence, a change in Government in Holyrood would not mean a change in operation of this Bill in Scotland. To be clear, if my amendments are accepted, the Bill would not operate at all for transport services.
No organisation or Government are immune to industrial disputes; what is key is how they are dealt with by employers. In ScotRail’s case, two separate disputes, with ASLEF and the RMT, were settled last year after constructive and mature dialogue and negotiation between employers and workers and their trade union representatives. That is how industrial relations should be conducted: with mutual respect and recognition. Sadly, that approach has not been replicated down here, despite calls by me and many others for UK Transport ministers to learn from their counterparts in Edinburgh.
More broadly, I doubt whether there is a single worker in the transport sector whose job is not in some way safety-critical, whether they are bus, train or taxi drivers, mechanics, signallers, guards, ticket collectors, cleaners, or anyone else involved in keeping our transport infrastructure running. I do not want my safety to be compromised by forcing those employees into work. I want safety-critical staff to be well motivated and happy in the job. I want them to be in an atmosphere that does not involve threats and coercion. I do not want them having to worry about criminal action or financial sanctions being taken against their legal representatives. I want them focusing on one thing: public safety. So to be clear, we will oppose this anti-trade union, anti-worker legislation every step of the way.
Similarly, amendments 108, 114 and 110 would remove services provided by devolved Governments from the Bill. Amendment 110 would ensure that a work notice were valid only if its provisions were submitted by an employer to the three devolved institutions and received the support of over 80% of elected Members in each Chamber. But as has been noted, when this Government encounter opposition, their response is not to argue their case on its merits or otherwise; it is usually simply to legislate that opposition away. We have seen that in elections for Mayors in England, where the supplementary vote system was scrapped and replaced with the discredited first-past-the-post system, despite no evidence that that will improve governance.
When the Government discovered that the Welsh Government had used their powers to disallow the use of agency staff to replace strikers in the public sector, they announced that they would simply overrule the Senedd and repeal that legislation. When Transport for the North became too bothersome and vocal about the UK Government’s appalling record of rail investment in north of England, they slashed its budget. Shamefully, only a couple of weeks ago we saw the veto of legislation passed by 70% of Members of the Scottish Parliament, using hitherto untouched powers.
The Government are even afraid of letting the people of Scotland decide their own constitutional future, so it is clear that they should not be involved in the industrial relations of devolved Administrations or metro authorities. They simply cannot be trusted. Indeed, we remember how Thatcher’s hatred of opposition from metropolitan areas in the 1980s reached the point where large English conurbations were left with little or no effective regional governance, after she wiped the metropolitan counties off the map. She was simply setting a precedent for the current Government’s contempt for political opposition from other elected bodies to their agenda.
My amendments would prevent a Westminster power grab from the English cities and the devolved Administrations and ensure that the voters of those areas retained the ability to determine their own industrial relations and elect politicians who want to work in partnership with workers and unions, rather than engaging in perpetual war.
Amendment 112 would exempt occupations and employees subject to the Civil Contingencies Act 2004 from any regulations allowing a work notice to be issued. I do not believe that anyone engaged in supporting and providing critical services should be forced to work. Each of those sectors is vital to the continued functioning of a healthy society. The Secretary of State’s argument is that he believes that that is why they should be prevented from striking. My argument is that that is exactly why they should not.
To conclude, workers’ data, which is the subject of amendment 113, should not be subject to less protection simply because those workers want to exercise the right to strike, especially if they live in a jurisdiction that roundly rejects this Bill and this Government. I am proud to say that Scotland not only rejects this Bill utterly, but rejects the Tories, as it has each and every time for nearly 70 years. With nonsense legislation like this, it will be at least 70 years before they become relevant to Scotland once again.
Richard Burgon
I rise to speak in support of new clause 1, which I tabled and which I am delighted has been signed by more than 30 MPs. It would mean that if the Bill passes, which it should not, it would not be allowed to come into effect until UK courts certified that the UK was meeting its international labour obligations, including by complying with the International Labour Organisation standards on workers’ rights.
The truth is that the UK has often been in breach of those obligations. New clause 1 is necessary partly because we have heard during the Bill’s progress, as well as when it was trumpeted before it was brought to Parliament, repeated claims from the Prime Minister and the Business Secretary that this legislation will somehow bring our country into line with Europe and that the International Labour Organisation supports such measures. That is absolute rubbish. The ILO does not support these measures. It does not support this legislation. The Bill does not bring us into line with other European countries. The truth is that the rights of workers in Britain lag behind those of workers in other European countries. The reality is that workers’ rights in this country need to be levelled up with the rights of workers in other countries, not attacked further.
David Simmonds
The hon. Gentleman refers to the need to notify. My understanding is that an individual worker is under no obligation to notify, although the trade union has to give notification. As a consequence, a headteacher could have no idea which staff in their school will be going on strike, and therefore cannot plan for a safe staffing level. Does the hon. Gentleman agree that the individual worker should be required, as the trade union is, to give notice of whether they intend to strike?
Richard Burgon
That is a very helpful intervention, because it illuminates the fact that I am afraid the hon. Member, and other Conservative Members, do not believe in individual liberty. We believe in collective rights as well as in individual rights. The trade union has to notify the employer of the dates of strike action, yet the Government Minister is saying—I mean the hon. Member; I am sorry to accidentally promote him, although he might get a promotion for that intervention. He is saying that individual workers should have to notify the employer about their intentions. That goes against individual liberty, against civil rights, and against individual freedoms. Thereby we see what this Government are proposing.
Anti-trade union laws mean that workers are denied their fair share of the wealth they create. In this era of neoliberalism, which has lasted decades, the race to the bottom has seen the share of the economy going to wages plummet from 60% to less than half today. Wages go down as profits go up. This Bill is happening now because workers are fighting back. This Bill is an attack by the Government on trade unions. If what the Government are saying is true, they would be pleased to accept my new clause, although I am sure they will not. If they have nothing to hide, let a court rule on this. Our country is often in breach of its international workers’ rights and duties. It is in breach with this Bill, and it does not bring us into line. We need to level up the rights of workers in Britain with the rights of workers elsewhere.
Let me tell the Committee—I will finish on this point—that workers in my constituency and across the country are sick to death of being attacked by bad bosses and by a bad Conservative Government. They are sick of being the poor relations of workers in other countries in Europe when it comes to hard-won workers’ rights. Workers in this country deserve better and it is about time that the Government stopped attacking them.
Bell Ribeiro-Addy (Streatham) (Lab)
I rise to speak in support of the many amendments to which I have put my name, and indeed of any amendment that would make the Bill unrecognisable from its current form. Fundamentally, this Bill is so wrong that we should not even be debating it. I am proud to declare my membership of Unite the union, and I refer Members to my entry in the Register of Members’ Financial Interests for the support I receive from other unions.
The Conservative party continues to talk about our trade unionists with such contempt, as if they are some separate class of people. My hon. Friend the Member for Wansbeck (Ian Lavery) put it absolutely right when he said that they are just ordinary people. They are the representatives of working people in this country, and Government Members would do well to put some respect on their name.
Hon. Members will find no shame on this side of the Committee. My hon. Friend the Member for Lewisham, Deptford (Vicky Foxcroft) put it well, because trade union money is the cleanest money in society. Perhaps there is a lot more shame on the other side of the Committee, or perhaps it is just that if we were to spend our time going through all the Government Members’ murky interests, we would be here for some time and not get to hear their speeches.
Our trade unions call the Bill “undemocratic, unworkable and illegal”, and they are rightly considering legal action if it passes. As we have heard time and again, it likely breaches article 11 of the International Labour Organisation’s constitution. But we have seen that the Government have absolutely no issue with breaking international law.
I was shocked to find myself agreeing with a fraction of something said by the right hon. Member for North East Somerset (Mr Rees-Mogg). However, I could not quite understand how he did not arrive at the conclusion that he would vote against the Bill. He lost me on his blanket acceptance of Henry VIII powers. A basic British primary school education tells us that Henry VIII was not a particularly democratically minded man, or a reasonable one. In a modern democratic society, there is no place for such powers or such men.
How many times have we seen those powers used recently in Government legislation? Far from being an exception, they have become the rule. It has also become the rule that the Government fail to publish impact assessments, which is bad practice from a bad Government who know that their bad policies will impact some of the most vulnerable people in our society. We have passed legislation in a day when we have needed to, and this legislation is being done at an unusual speed, so why do we need those powers? To put it clearly, our constituents do not send us to this place for a small group of people from the Conservative party to make all the laws unchecked.
I want to go over some of the claims that Ministers have made about the Bill. They say that other countries have similar agreements on curbing strikes. That idea needs debunking. Yes, others have such agreements, but the context is very different. Anti-trade union laws are far more severe here than in other countries, as are the sanctions for breaking such agreements. To use Italy as an example, a worker could lose the equivalent of two hours’ pay. In this country, they could lose their job and livelihood and be blacklisted, with no recourse to claims of unfair dismissal. Our unions could also face unlimited fines.
Another claim is that the legislation was a 2019 Conservative manifesto commitment. Well, so was providing the resources that our public services need and the recruitment of additional doctors and nurses—when exactly will the Tories meet those commitments? The reality is that our public services are in crisis and medical professionals are leaving in droves, forced out by understaffing and falling real-terms pay.
The Tories have no mandate for the Bill, because, again, the 2019 Conservative manifesto had only one reference to minimum service levels, which was as follows:
“We will require that a minimum service operates during transport strikes.”
There is nothing at all about imposing that on NHS workers or firefighters, or on other workers in the future, but that is exactly what the Government want to do. In addition, that sole paragraph dealing with minimum service levels goes on to say:
“Rail workers deserve a fair deal, but it is not fair to let the trade unions undermine the livelihoods of others.”
It is not true in the slightest that the Government, who are interfering so blatantly in the current dispute, are providing a fair deal for rail workers, or that strikes undermine the livelihood or safety of others. Our trade unions are striking not just for pay and conditions but because of the poor levels of service that the Government have driven their sectors to.
Pay freezes have also been imposed even though cumulative consumer price inflation in the two years to November was more than 16%. Official projections from the Office for Budget Responsibility suggest that real pay will fall again in 2023 unless there is a big pay rise.
I do not want to spend all my time talking about the Conservative manifesto, because, as the Committee will imagine, it is not my favourite document. The hon. Member for Crewe and Nantwich (Dr Mullan) asked what would be in our manifesto. My hon. Friend the Member for Middlesbrough (Andy McDonald) laid it out quite well, but if Conservative Members want to hear more about what will be in the Labour party manifesto, they should encourage their colleagues to call a general election so that we can give them one and they can have a good read of it.
The Government claim that there is no money left, or that their miserly pay offers are the work of an independent pay review body. That has already been widely exposed as incorrect. The review bodies’ entire terms are set by the Government. Ministers have found hundreds of millions in funds to subsidise the rail companies for strike losses; in fact, they have admitted that it would have been cheaper for them to settle the dispute. That shows that the Government’s real aim is to break trade unions, but trade unions will not be broken. They have the support of people right across this country. If the Government continue to attempt to restrict the right to strike, all they will have on their hands is more strikes.
The Chairman of Ways and Means (Dame Rosie Winterton)
I call Liz Saville Roberts.
Liz Saville Roberts
Diolch yn fawr iawn, Dame Rosie. I refer hon. Members to my entry in the Register of Members’ Financial Interests: I am the co-chair of the justice unions parliamentary group. I am not employed by it and do not receive a penny from it, but I still have to declare it. It would be very useful if other hon. Members had to declare their support from employers as well.
I rise to speak to amendment 76 and new clause 3 in my name. It is telling that amendment 76 is one among many amendments—including those tabled by SNP colleagues and by the hon. Member for Cynon Valley (Beth Winter)—designed to prevent the UK Government from interfering with primary legislation passed by Senedd Cymru or the Scottish Parliament. Powers to amend or revoke workers’ rights legislation on a whim have no place in a modern democratic society. The protections that my amendments would afford are critical in a period when it is becoming increasingly clear not only that devolution is under attack from Westminster, but that our fundamental rights and freedoms as citizens are not safe from an increasingly authoritarian Government in Westminster.
New clause 3 would require the UK Government to conduct an impact assessment of the effect of the Bill on industrial relations in Wales. Actually, it does not go as far as the amendments tabled by the hon. Member for Cynon Valley. It seems a very reasonable request to see what the effect of this legislation is on a sister Parliament in the United Kingdom. The assessment under the new clause would have
“particular reference to the intended outcomes of the Social Partnership and Public Procurement (Wales) Bill”.
That Bill, which is currently being debated in the Senedd, will place a duty on certain public bodies to work with trade unions when setting and delivering on wellbeing objectives.
In Wales, we seek to include workers in the making of the very public policy decisions that will have an effect on their working lives. We want to chart a different path: one whereby workers are empowered and valued, not bullied as they are by Westminster. That brings us to the very heart of the question why the right to strike is so important. Giving workers the opportunity and the choice to be represented collectively in the work environment by a trade union enables them to be heard and to bargain collectively. Okay, those are good words, but why do they actually matter? They matter because this is the key tool for improving living standards and tackling inequality. That is especially important in a country like Wales, where sadly a third of children are growing up in poverty.
We have a duty to tackle inequality and poverty. Undermining the effectiveness of industrial action at a time when the cost of living crisis is biting will only perpetuate the cruel poverty cycle that has trapped so many people in so many communities. Amplifying workers’ voices can also bring significant benefits to employers, as it can be a way of identifying issues at an early stage and ensuring that the valuable insights that workers have into how services can be improved are heard and acted on. This is about facilitating meaningful discussions and negotiations that lead to real solutions—which is not to say that such an approach is always easy, but in the long term it is far more effective than actively sowing the seeds of discord between workers and their employers.
David Simmonds
I yield to no one in the Chamber in my respect for trade unions. I have had the privilege of chairing three public sector employer organisations and the European sectoral social dialogue in education, so I know from lengthy personal experience that a great deal can be achieved through processes of that kind. However, 61% of workers in Britain are employed in small and medium-sized enterprises, and a further 15% of the UK workforce consists of self-employed people. Does the right hon. Lady think it is necessary for the interests of those people to be raised in this debate, as well as the interests of those who are part of large unionised organisations?
Liz Saville Roberts
The hon. Gentleman has raised an important point, but when we are looking at the culture of workplace relations and at productivity, perhaps we should look to Europe. In Germany, for instance, that culture is far more effective and far more productive, so perhaps it is something we should be addressing.
As I was saying, the Bill, as it stands, actively sows the seeds of discord between workers and employers. This destructive approach, which the UK Government seem hellbent on pursuing, will serve only to exacerbate the very recruitment and retention problems that are placing so much pressure on our public services. I therefore welcome the Welsh Government’s commitment to seeking every possible lawful means of opposing the implementation of the Bill in Wales.
It would be remiss of me at this stage not to encourage the Welsh Government to live up to their laudable rhetoric by showing leadership when it comes to public sector pay disputes taking place in Wales. I am sorry to say that, so far, that has been lacking in their approach. It is sad to see the difference between Labour’s message here and its message in Wales, but we are dealing with this Bill in the here and now, and that is our serious problem. I urge the Welsh Government to consider adopting the five-point plan to tackle the health crisis presented by my Plaid Cymru colleagues in the Senedd: that is a result of collaboration, and collaboration brings results—unlike confrontation, which is what we are discussing today.
I remind the Minister that the UK Government cannot legislate their way out of disputes that are taking place because of the pressures on the very public services they have stripped to the bone year after year. Our society cannot function without the thousands of workers who run our hospitals, public transport systems, schools and courts. Sacking people for demanding fair pay and fair conditions for their work is blinkered and short-termist. Why are the Government doing this? Public sector workers and workers in key publicly funded services are not to be demonised. Follow the money—services are creaking and in a skeletal condition, having been starved by 13 years of Tory budget choices. Everything else is cynical window dressing.
Sam Tarry
It is an honour to follow that speech from the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts), who explained, epically, why people in Wales are so angry. I should begin by drawing the Committee’s attention to my entry in the Register of Members’ Financial Interests, and I do so proudly, because every pound that has been donated to me has come as a result of democratic decisions made by the thousands of local trade unions members who support me in the work that I do as a Labour party representative.
I wish to speak in favour of amendment 86, tabled in my name, and other amendments tabled by my hon. Friends the Members for Easington (Grahame Morris), for Wansbeck (Ian Lavery) and for Cynon Valley (Beth Winter) and my right hon. Friend the Member for Ashton-under-Lyne (Angela Rayner). This Bill represents one of the most restrictive, interventionist and incoherent industrial relations strategies that we have ever witnessed in this country. If it is passed in its current form, nurses, firefighters, teachers, bus workers, paramedics, lecturers, pilots, rail workers, solicitors and civil servants—the very same workers whom the Government have praised time and again during the pandemic—will find themselves deprived of their fundamental rights as workers and at risk of arbitrary dismissal, as so many Members have pointed out this evening.
This is nothing more than a sacker’s charter. Hundreds of thousands of workers have taken industrial action this winter. There are individual disputes, but with a common cause: a pay disaster that means that workers are paid significantly less in real terms now than 14 years ago. Today, firefighters have voted in record numbers to take industrial action, saying “Enough is enough” to a Government-created pay crisis. This Government could simply listen: improved pay and conditions could resolve that, not autocratic, poorly thought out legislation.
The Government have often invited comparisons with other European countries, which I find completely disingenuous. As the general secretary of the European Federation of Public Service Unions noted, the Government have failed to mention that unions in those countries negotiate their minimum service levels and do not face anywhere near the excessive balloting rules and thresholds imposed in the UK. As I said in an earlier intervention, European countries with minimum service levels typically have huge levels of collective bargaining—often 80% to 90%—while here in the UK it is around 25%. If the Minister wishes to bring our workplace law in line with that of European neighbours, perhaps he should start there. I have heard so many people say that the Bill is like Australia, France and Germany. It is not. It is more like Turkey, Singapore or Russia.
Amendment 86 would go some way to combating the lopsided relationship put forward in the Bill, by requiring employers to consult recognised trade unions before the imposition of a work notice. After all, every trade unionist I know who runs a local branch is perfectly capable of getting around the table, having a discussion and coming to an agreement—sometimes compromising to do so—in the interests of the workers they represent. The problem is that getting a deal is easy for trade unionists, but this is a no-deal Government who are focused on attacking workers, not resolving disputes.
The Bill is unique not just in its vicious anti-worker sentiment but in the extraordinary powers that it grants the Secretary of State. It leaves a tremendous amount of detail to be decided, as the right hon. Member for North East Somerset (Mr Rees-Mogg) pointed out. It is a constitutional farce. It would deny all Members proper scrutiny. The Government are trying to push the Bill through rapidly, in one evening. That flies in the face of our traditions and democracy, and certainly gives far too much power to the Secretary of State.
I spoke to a representative from the British Airline Pilots Association earlier today. The Bill covers transport, which could include aviation. They expressed serious concerns that the Bill would enable the Secretary of State to overturn the highest-ranking aviation safety officers in the country, and force airlines to run dangerous and potentially understaffed flights. Will the Secretary of State sit in Whitehall deciding on flights coming in or out of London Heathrow or any other major international airport? I would be happy if he banned a few more flights to Mustique and the Cayman Islands, because Members on the Government Benches would probably have more time to spend here working on the Government’s agenda to sort out our country’s parlous state.
It is no wonder the former Lord Chief Justice Lord Judge referred to the Bill as a
“skeleton bill with a supercharged Henry VIII clause”.
It will grant the Secretary of State powers to rule by diktat. We should not be debating such extreme legislation that gives the Secretary of State absolute power to decide which workers will be able to take industrial action and when. It severely restricts the democratic and human rights of millions of people in this country, without the necessary detail or time to scrutinise it properly in this House. That is clearly unacceptable and should not stand.
Turning to the workability of the Bill, outside the clear moral issues that compel Opposition Members to vote against it, it simply will not work. It is utterly dangerous, and will set back industrial relations. It will do nothing to help resolve disputes or support good industrial relations, which I am sure the Minister will agree are the basis of a healthy economy. In fact, it will do the opposite. It will force trade unions to develop other tactics to fight for better jobs, pay and conditions.
If Members will indulge me for a minute, I will give a short history lesson. In the 1940s, order 1305 was brought in during the war to give the Government power to decide, in a similar way to this Bill, to ban strikes in various sectors. Of course, we were fighting a fascist regime and we want to think that all those powers were appropriate, but when they were used it was a huge own goal because they led to significant increases in the number of days lost to strikes. Workers got so fed up that they simply walked out on unofficial strike, and they did so without any trade union involvement, creating a situation where the unions had less say and less influence to reach a resolution or to monitor what was happening. So history shows that this kind of legislation is a total disaster.
Stephanie Peacock
It is a pleasure to follow my hon. Friend the Member for Ilford South (Sam Tarry), who made a passionate speech.
As a proud trade union member, I begin by referring the Committee to my entry in the Register of Members’ Financial Interests. I speak today in opposition to the Government’s proposed measures. The decision to go on strike is never taken lightly, especially as families struggle with the financial effects of the cost of living crisis. Opting to lose a day’s wages, particularly for workers such as teachers and nurses, is always a last resort when all others have failed, as I know because I have been on strike as a low-paid teacher.
I will focus my brief remarks on amendment 1. The Bill currently allows for workers who do not comply with a work notice to be sacked. The Labour party does not believe that any worker should be sacked for taking industrial action. As a former state school teacher, and as an MP representing a coalfield area that has previously suffered from Tory attacks on unionised workers, most notably during the 1984 miners’ strike, I have seen at first hand the importance of the right to strike and how it would be fundamentally unfair for people to lose their livelihood for taking the decision to withdraw their labour.
This goes beyond public sector workers. For example, transport services could include road haulage and distribution, both of which are key to South Yorkshire’s regional economy. The Bill allows two ways to enforce a so-called work notice: employers may either sue a union for losses, or they may sack individual workers.
One of the clearest examples of how this legislation targets workers and is not fit for purpose is in the transport sector. The train operating companies do not make losses due to strikes. Operators get a fee regardless of whether their services run, meaning they have no financial incentive to settle industrial disputes. Frankly, my constituents are lucky if they can travel across the Pennines, whether or not it is a strike day, but that does not touch the companies’ profits under the current system. Surely the only power that this Bill provides in such cases is to sack the workers in question. In an industry facing massive shortages, it is a strange solution to sack staff. It is hard to escape the conclusion that, instead, employers are simply being encouraged to target union activists, which is why amendments 64 and 68 are also important.
Fundamentally, minimum service levels are ineffective. Comparable countries such as France and Italy, which already have legislation in place for minimum service levels, have seen an increase in strikes rather than a decrease. The Government propose this Bill as a solution to the current levels of industrial action in the UK, but the reason why the number of strike days is at its highest in a generation is because this Government have given us a low-wage, low-growth economy for 13 years. These strikes are a symptom of Conservative economic failure. Key workers kept our country moving throughout the pandemic. This Government should stop threatening to sack them; they should pay them a fair wage.
David Linden
I rise to speak to amendments 21 to 24, which are in my name. In doing so, I am happy to support the amendments in the names of my hon. Friends the Members for Kilmarnock and Loudoun (Alan Brown), for Glasgow South West (Chris Stephens) and for Paisley and Renfrewshire North (Gavin Newlands), and my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry). I declare my interests, as other hon. Members have: I believe in democracy and I am a member of Unite.
Before I speak specifically to the substance of amendments 21 to 24, I will say a few words about the Bill and develop some of the points I outlined on Second Reading. To be blunt, this is a bad Bill that I believe is in total violation of the fundamental human right to withdraw one’s labour. Since Brexit, and throughout this Parliament, we have been promised an employment Bill but, alas, none has materialised. Time and again, we have been told there is insufficient parliamentary time for such legislation to go through both Houses of Parliament but, miraculously, the British Government have suddenly found parliamentary time to ram through a hugely controversial Bill, albeit a short Bill, that will radically alter employment law and trade union relations on these islands.
This Bill will be railroaded through its remaining stages in just six hours tonight, which is a total disgrace that makes a mockery of those who say Parliament is taking back control. We are about to confer huge, sweeping powers on a Secretary of State who, at the stroke of a pen, will be able to force employees to work against their wishes. I do not know how often it needs to happen for Ministers to take it seriously, but when the right hon. Member for North East Somerset (Mr Rees-Mogg) suggests this Bill is going in a dangerous direction, it is a clear indication that they ought to think again.
It is clear from the few speeches we have heard from Conservative Members tonight that the British Government see the foundations for this Bill as being the fact that some European countries have provisions for minimum service levels. Leaving aside any surprise at the UK suddenly benchmarking itself against legislation from EU member states, we see nothing on the continent that is anywhere near as strict as what is proposed in this Bill and drafted in a way that gives one man in Government such wide-ranging powers.
Chris Stephens
Is my hon. Friend aware of anywhere else in Europe where an employee could be dismissed, with no right to a tribunal, as proposed in this legislation?
David Linden
My hon. Friend is spot on with that question. That point has been made throughout the debate by my hon. and learned Friend the Member for Edinburgh South West, when she makes the case that if we looked for countries that do that, we would find ourselves in with the unholy club of Russia and Hungary. Perhaps the policy of global Britain has changed and the Government are seeking to emulate the policies of Hungary and Russia. That would be a courageous electoral strategy if they are, but none the less my hon. Friend makes that point.
I wish to say one more thing about international comparisons before moving on to deal with the amendments. Many Government Members suggested on Second Reading that the Bill enjoyed the support of the ILO, but it has since clarified that that is not the case. So that nullifies that line from the British Government, which, when scrutinised, is found wanting on just about every clause in this tawdry Bill.
I am conscious of the fact that there are well over 100 amendments in 50 pages on the amendment paper, as well as multiple new clauses, so I will seek to confine my remarks solely to those that stand in my name, and I will start with amendment 21. Many of us know that this legislation is only the thin end of the wedge; I do not think that Ministers will stop here. For many on the Tory Benches, this is an ideological war. It is a blatant attempt to finish what Margaret Thatcher started: bringing the unions to heel. We have heard it tonight, with language such as “union barons” “the paymasters” and so on. Fundamentally, the Bill is about the victimisation of trade unions and working people, and it is all about creating a wedge issue for the next election.
Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)
My hon. Friend is making a fantastic point about who is being victimised here. Instead of attacking working people and families, should this Government not be going after those who are not paying their taxes, so that we can get some more money? We could also go after those who are wasting billions of pounds as well.
David Linden
My hon. Friend seeks to lead me into an area that could probably land me in a lot of hot water, in terms of naming Members and breaching “Erskine May”, so I will avoid straying into the area of affairs of taxation for the Conservative party. He is right to put that on the record and I am sure it will be ringing out in Stratford-on-Avon.
On amendment 21, the Bill already makes provision for six wide-ranging sectors that the British Government have identified for restrictions at a time of industrial action. Quite apart from the fact that “life and limb” cover is already provided for in statute, the list is already incredibly far-reaching. My amendment seeks to tighten up this part of the Bill, making it harder for Ministers to add further sectors of service provision. I am thinking specifically of Royal Mail, where our trade union colleagues in the Communication Workers Union are currently engaged in a dispute.
I have no doubt that this is not about “life and limb” cover, which unions already negotiate in advance of strike action. Ministers’ language has already evolved in recent weeks and months to “lives and livelihoods”, which gives them carte blanche to add in whatever sectors they fancy later on. I firmly believe that they will draw in other industrial disputes to be covered by this Bill and use it as a signal to bad bosses, the likes of Royal Mail’s Simon Thompson, who seems to be content with being at war with trade unions. The effect of amendment 21 would be to prohibit any addition to or any reinstatement of the six categories of service to which the Bill applies, while facilitating the ease of removal of any of these categories.
Amendment 22 relates to the devolved nature of employment law in Northern Ireland. As hon. Members will be aware—although perhaps not those who think it is impossible to devolve employment legislation to Holyrood —Northern Ireland already has legislative competence for employment law, so the territorial application of this Bill is not extended there. However, with no functioning Assembly or Executive, my amendment 22 would provide that this anti-worker power grab from Ministers could not be imposed on workers in Northern Ireland in any circumstances, including in the event of direct rule. In short, no devolved consent means no anti-strike legislation in Northern Ireland. However, for a party that purports to be so passionate about the Union, it is somewhat bizarre that, by passing this legislation, it is essentially engineering a situation whereby UNISON’s health service members in Northern Ireland would be exempt from the legislation that would directly infringe their very peers on this island. Perhaps we could call this particular amendment the anti-strike protocol.
Rebecca Long Bailey (Salford and Eccles) (Lab)
I draw the House’s attention to my entry in the Register of Members’ Financial Interests as a proud trade union member. I rise to support the amendments in the names of my hon. Friends and myself and those of the official Opposition.
There has been much discussion today about whether the Bill has been badly or incompetently drafted, but we should not be taken in by that diversion. This is a Bill that is drafted very specifically to achieve a very specific aim: to extinguish the right to strike and to stop key workers from speaking out.
Trade unions have been given no opportunity to feed into any pre-legislative scrutiny. There has been no consultation with any of the impacted sectors and no impact assessments have been published, as highlighted by the Regulatory Policy Committee, and it is no wonder. The Bill will undoubtedly breach the Human Rights Act, the European convention on human rights, International Labour Organisation conventions and various other statutes. It gives the Secretary of State sweeping authoritarian powers to set minimum service levels by regulation in six sectors, the contours of which are undefined, and it grants the Secretary of State sweeping authoritarian powers to amend, repeal or revoke provisions in primary legislation, including Acts of the Senedd and the Scottish Parliament, as we have heard today. Worse still, it strips away employment rights. Any worker identified in a work notice who refuses to work as directed will be without unfair dismissal protections, meaning they can be sacked immediately, without notice. But it does not stop there. The Bill also says that the relevant trade union must “take reasonable steps” to ensure that its members comply, but, again, “reasonable steps” are not defined; they are at the whim of the Secretary of State.
Staggeringly, the consequence of not taking those undefined reasonable steps is that the strike would be unlawful and unofficial and all workers taking strike action would be without unfair dismissal protection and could all be sacked at the whim of the Secretary of State.
John McDonnell
When we legislate in Parliament, we do not legislate for the good; we legislate for the bad. We have to interpret how this legislation could be used by a bad employer, and one way it could be used by bad employers is specifying individual workers who we know are trade union activists to be forced to break the strike. The Government will say that there is a responsibility and that the employer had no regard to whether someone was a union member. We had 20 years of blacklisting taking place with Governments refusing to acknowledge it. We know what bad employers will do: they will target trade unionists and ensure they are sacked, and when the union defends the trade unionists, they will come for the trade union itself.
Rebecca Long Bailey
My right hon. Friend is 100% right. The problem with blacklisting was that it was done very much under the radar; we had Government institutions going behind legislation. This piece of legislation, however, would unashamedly carry out similar practices in broad daylight, with the full sanction of the Secretary of State and his Prime Minister.
This is an authoritarian and undemocratic Bill. The proposed amendments that I am supporting today are therefore designed simply to enhance parliamentary scrutiny, to constrain the unreasonable powers of the Secretary of State and to protect workers and trade unions, in particular by making co-operation with work notices voluntary on the part of employees, by providing that a failure to comply with the work notice will not mean a breach of contract or provide grounds for dismissal or detriment, and by limiting the reasonable steps that a trade union must take.
This despotic Bill not only represents a fundamental attack on workers’ rights, but dangerously divides a nation, demoralising and threatening to sack the very workforce who have tried to hold our country together over the last two difficult years. These amendments are the bare minimum necessary to take the dangerous edges off this very dangerous piece of legislation—but, frankly, this piece of legislation needs to be thrown in the bin.
Ian Byrne (Liverpool, West Derby) (Lab)
It is always a pleasure to follow my hon. Friend the Member for Salford and Eccles (Rebecca Long Bailey).
I rise to speak in favour of amendments 80, 84, 97, 20, 83, 93, 85, 95, 92, new clause 1 and all amendments tabled by the Opposition Front Bench. I am absolutely delighted to declare that I am a member of Unite and the GMB.
I start by congratulating members of the Fire Brigades Union on their resounding strike ballot today, which really was democracy in action, and expressing solidarity with all the workers in dispute this week. This is a pernicious Bill designed to target the very same workers who, as a nation, we clapped from our doorsteps not so long ago in gratitude for their heroics during the pandemic—the same key workers who, let us not forget, are being forced to use food banks in vast numbers because their work does not pay.
The old chestnut that work pays is becoming a bigger fallacy than some hon. Members’ tax returns. Nurses, firefighters, teachers and other public sector workers are all targeted in this Bill, prohibited from striking and risking dismissal if they resist. Let us be clear: these public sector workers are being forced into industrial action in the first place by a Government who have overseen 12 years of real-terms pay cuts, the erosion of job security and pensions and the destruction of our public services. I note that the Prime Minister said today, after finally sacking his party chairman, that he
“will take whatever steps are necessary to restore the integrity back into politics”.
Well, I cannot help but find that pledge laughable as I stand here speaking out against this Government’s Bill, which will see key workers lose their protection from unfair dismissal and trade unions sued for upholding workers’ rights.
It is clear that the Government are trying to fast-track the legislation through Parliament without proper scrutiny. The Bill lacks detail, and I note that the TUC has submitted a freedom of information request to ascertain why it has been published without an impact assessment. It is a further insult to our key public sector workers that this bonfire of workers’ rights is unfolding just as the Government are laying the groundwork for another bonfire—one of financial regulations, through the Financial Services and Markets Bill.
The Prime Minister speaks about restoring integrity, yet here he is presiding over the empowerment of speculators and lifting the bankers’ bonus cap as our key workers lose their right to strike. It is beyond shameful. I have sponsored 25 amendments aimed at protecting the right of workers to take industrial action, and at neutralising this appalling Bill, which attacks our fundamental right to strike. I support Labour’s amendments to safeguard protections against unfair dismissal, and further amendments that would require the Government to submit the legislation to greater parliamentary scrutiny, including by forcing the publication of assessments of how the Bill would impact on individual workers, equalities, employers and unions.
I am deeply opposed to the Bill, which further curtails the right to strike and other trade union activities. I fully support the rights of workers to take industrial action. I voted against this dreadful Bill on Second Reading, and I will continue to oppose it in this place and out on the streets with the public, who also oppose it. We can and must do better than this dreadful, divisive and potentially unlawful Bill.
Claudia Webbe (Leicester East) (Ind)
I rise to speak in support of the amendments that protect democracy, our devolved Parliaments, our human rights, our workers’ rights, our compliance with international law and, fundamentally, our freedom. Those aspects are laid out in new clause 1 and amendments 92, 93, 80, 27, 83, 84, 20, 8, 40, 94, 4 and 1, among others. I declare my proud membership of Unite the Union, the GMB and Unison.
It is clear that the public do not need protecting from public sector unions. The workers and the public—ordinary people—need protecting from this Government. The only fit end for this appallingly vague, skeletal and frighteningly broad Bill is the scrapheap. It should be withdrawn or, if not, voted against in its entirety. At the very least, the amendments and new clauses are needed to minimise the immediate and potential harm that this “sack the workers” and anti-trade union Bill will cause.
The Conservative party has already demonstrated its readiness to trample on legal principles and the democratic and human rights of people in the UK. Through the Bill, as it stands, the Government are seeking to bypass democracy in this House, which is why amendments 80, 27 and 40, among others, are needed. The Government are also seeking to circumvent the established autonomy of the UK’s devolved Governments without even assessing the impact of those actions. That is why amendment 28 and others are vital.
It is essential that the amendments and new clauses force the Secretary of State of to seek the approval of Parliament to amend or add to the legislation. In fact, the Bill’s provisions are so wide and vague that it would set a precedent in allowing the Government to amend or revoke, in private, any legislation that they do not like, against any set of people they disagree with, or simply on a whim to make a political point. The Bill is also a mass assault on the rights of millions of working-class people, no matter where they live, and on the unions that enable them to organise and act together to improve their working conditions and living standards.
John McDonnell
Many have commented on the almost ludicrous nature of how we are legislating today. We are about to legislate to penalise a union for not taking reasonable steps to ensure it instructs its members to break a strike, yet we do not know those sanctions, or what “reasonable steps” are. We do not know what the implications are for the union itself, yet we are legislating tonight to give a free hand to the Minister. That cannot be right in any democratic forum.
Claudia Webbe
My right hon. Friend makes an excellent point, to which I hope the Government are listening. The Bill is manifestly unjust and must not become law. That is why amendments 93 and 92 are needed. The Government are not just showing their contempt for the UK’s legal and democratic principles with this Bill. As it stands, the Secretary of State can ignore the UK’s international legal and treaty obligations on the treatment of workers and allow the sacking of workers simply for exercising their internationally recognised right to withdraw their labour, with nothing to protect certain workers and union officials from being targeted by bad bosses. Time and again, this Government bring forward legislation without an impact assessment. Where is the impact assessment? Where is the equality impact assessment? That is why new clause 1 and amendments 4, 83 and 84 are needed.
The harm this Bill does to the rights of our people is obvious, but it also does huge harm to the UK’s international standing, making this country yet again an outlier among so-called developed nations in its readiness to disregard international law and agreements. The Bill is clearly unfit and is designed to break the will of the unions and demoralise workers. These amendments and new clauses will not actually make the Bill fit, but the proposed changes will at least mitigate some of the dangers it evidently poses. I urge the Committee to support them.
As workers rise in opposition to this Bill, to defend their rights and to say enough is enough, and as industrial action increases as a direct result of this Bill, I urge all hon. and right hon. Members to do the decent thing and to stand with them not only here in Parliament, but on the picket line. On 1 February, I will be standing with workers in Leicester who are rightly exercising their democratic right to strike for fair pay, terms and conditions. I ask Members to support the amendments and to scrap this Bill for good.
Tahir Ali (Birmingham, Hall Green) (Lab)
I refer the Committee to my entry in the Register of Members’ Financial Interests; I am a proud member of the Communication Workers Union and Unite the union.
I am appalled by the introduction of the Bill, but I cannot say that I am surprised by it. Historically, the Conservatives have taken every opportunity afforded to them in government to attack and curtail the rights of trade unions to represent hard-working people at their places of employment. Whether in the Industrial Relations Act 1971 under Heath or the raft of draconian anti-trade union laws introduced under Thatcher, the Conservatives have demonstrated again and again that they are fundamentally opposed to any notion of workers having a voice or a right to negotiate pay and conditions at their workplace. To attack the fundamental rights of workers to withdraw their labour is an act not of strength or leadership from the Government, but of downright cowardice.
Key workers across the UK, who are struggling to make ends meet after years of hard work and sacrifice, are now exercising their democratic right to demand better pay and conditions after 13 years of miserable Conservative Governments. Any sensible, sincere and serious Government would be doing everything in their power to ensure that agreement could be reached, so that workers could receive what they are owed and the public did not have to endure disruption any longer than necessary. It is the Government who are failing to provide the most minimum of service levels, not our public sector workers.
As a lifelong trade unionist, I know first hand the vital work done by trade unions throughout our society. I stood in solidarity with all the university workers who went out to protect their pensions. I stood in solidarity with BT workers, rail workers, Royal Mail workers and all the strike workers who have stood up for their rights to better pay and conditions under 13 years of miserable Tory Governments.
Again, on 1 February, I will stand by the public sector workers from Jobcentre Plus who are defending not only their jobs but their right to feed their children and to have living standards that have been eroded by Conservative Governments. Given the mortgage payment increases that resulted from the scenario made in Downing Street by the previous Chancellor and the previous Prime Minister, it is their right to go on strike to defend their right to have better pay that meets the increase in the cost of living. That cost of living crisis—made in Downing Street after 13 years of Conservative rule—means that every worker deserves to go out on strike.
The Minister muttered earlier that the Government were passing the Bill to save lives, but if they want to save lives, they should fill the 47,000 nursing vacancies, as the nurses are crying out for them to do; they should fill the vacancies for the doctors who are needed in the NHS; they should fill the vacancies in the police, where cuts have cost lives, and are costing lives, because policing cannot happen in the way that it should; and they should back the firefighters, who are delivering an excellent service despite the cuts that Conservative Governments have forced on them. If I want a better life for myself, it is equally the right of every single working-class person in the country to stand up for their rights and to make sure that their children do not go hungry. Children should be fed in school and at home—free meals should be provided for everyone at primary school level.
Equally, we must realise that the cost of living crisis created by the Government is forcing people to go out on strike. The poll carried out by YouGov—a name we have heard a few times this week—for Sky News today shows that despite the increase in the number of strikes, there is huge public support for workers, because they are ordinary working people who are suffering. Children and working people are suffering, and the cost of living crisis is crippling families’ take home pay. That is their fundamental right. This Government are failing to provide the minimum service levels that our public sector needs and deserves.
The work of trade unions is much more fundamental than that. It is about ensuring that people have a voice and can act and hold their employers to account, whether that be on working conditions, health and safety matters or pay and conditions. It is about fairness, justice and democracy at work. The Bill represents an outright attack on these values, and it should be rejected by every person in this Chamber and everyone who will be voting later today. Who would believe that workers would be treated with the utmost disrespect after this 13 years of Tory rule?
It is evident that at every step of the way this Government have tried to denigrate the unions and the rights of the unions. There were remarks made from the Government Benches about trade unions bankrolling Labour Members, but let me remind the Minister: it is up to every union member whether they opt in or out of the political fund, and it is incumbent on unions to ballot their members on it. I say with great satisfaction that the vast majority have opted in so that political work and campaigning can happen.
I am proud to stand here as a trade unionist. If we are to do justice by people, we need an increase in nurses and doctors, and we need funding for schools so that teachers can properly provide the services they went into their careers to provide. There is an alternative to these minimum service levels. It is called a general election. If the Government really believe what they are doing is in the interests of the people of this country, they should call a general election and find out.
Mary Kelly Foy (City of Durham) (Lab)
I speak as a proud trade unionist, a member of Unite the union and Unison, and as someone who appreciates and is grateful to all our public servants. I echo the case put forward by my right hon. Friend the Member for Ashton-under-Lyne (Angela Rayner) and support the amendments put forward by Opposition Members. My view is simple: this draconian Bill is as anti-democratic as it is unethical. It is as unworkable as it is counterproductive. It is an admission by a Conservative Government who are out of ideas and fundamentally out of touch with the working people who are the backbone of our public services. We are witnessing the greatest strike disruption that this country has seen since 1990. It is not a mystery why: workers have faced the biggest squeeze in their wages since the Napoleonic era.
In the private sector, many employers have engaged in constructive negotiations to agree pay deals, but in the public sector the Government have refused to get around the table. They have decided to legislate rather than negotiate. It would cost £18 billion to provide proper, inflation-matching pay awards for public service staff. The Public Accounts Committee estimates that His Majesty’s Revenue and Customs is owed an eye-watering £42 billion in unpaid taxes. Rather than bringing forward a Bill to restrict workers’ ability to fight for fair pay, perhaps Ministers could look into recovering that revenue to cover the cost of these fair wages. I understand that a former Cabinet member has some experience in this area and now has some time on his hands as well.
When the public look to our NHS or our schools or any of our public services, they see 13 years of Tory mismanagement. The staff working in those services are simply echoing the same concerns, because they too are members of the public. They are reliant on those services and they are feeling the cost of living crisis.
Today, after much consideration, firefighters have overwhelmingly, and democratically, voted to strike. This is a last resort for those members, but they have witnessed their pay being eaten away, some of them are having to use food banks, and their life-saving services have been cut by 30%. Fundamentally, this case underlines why this legislation is not about public safety. This Government’s cuts have been putting the public at risk every single day. Moreover, the FBU has already negotiated a major incident agreement with fire employers, proving once again that this Bill is a desperate attempt to restrict its ability to push for a fair wage.
Carol Monaghan (Glasgow North West) (SNP)
The hon. Lady is making a fabulous, passionate speech. I am a former teacher and have taken strike action in the past over pay and conditions. Does she not think that when Government Members stand up for bankers and their bonuses but then talk about their hard-working, dedicated teachers or their hard-working NHS staff, it reeks of simple hypocrisy? They will not be taken seriously the next time they make such statements in this House.
Mary Kelly Foy
I could not agree more with the hon. Member. Government Members must remember that these nurses, teachers and firefighters are themselves the general public who they claim are the ones feeling the pinch and who have the right to a decent service. They are the people who are striking now.
To finish, this Bill just shows, if ever proof were needed, that this is a Government whose every action is allowing the rich to get richer and the poor to become poorer.
Kevin Hollinrake
I thank hon. Members on both sides of the Committee for their contributions.
Consistent with the contributions that have been made, this Government firmly believe that the ability to strike is an important element of industrial relations in the UK—it is rightly protected by law—and we understand that an element of disruption is likely with any strike. However, we need to maintain a reasonable balance between the ability of workers to strike and the rights of the public, who work hard and expect the essential services that they pay for to be there when they need them. We need to be able to have confidence that, when strikes occur, people’s lives and livelihoods are not put at undue risk.
Kevin Hollinrake
I will make a little progress and then bring the hon. Member in, although I might cover his point in my next comments.
To respond to some of the points made in the debate, particularly on scrutiny and process, clearly the consultations offer plenty of opportunities for hon. Members, their constituents, employers and unions to play a role in shaping minimum service levels before regulations are made, and both Houses will be able to provide additional scrutiny.
Andy McDonald
A lot of the remarks made this evening have focused on safety, but section 44 of the Employment Rights Act 1996 provides workers with the means to contest the adequacy of safety arrangements and withdraw their labour—they can walk away. Given that, can the Minister explain to the Committee which statute would take precedence: the Employment Rights Act 1996 or this Bill?
Kevin Hollinrake
I think it is quite clear. I was interested in the comments of my hon. Friend the Member for Newbury (Laura Farris) when she talked about the International Labour Organisation and its specifying of minimum service levels. It has stated that they do apply to essential services but could also apply to other services, such as education and railway workers. We think the legislation is consistent with international law and the International Labour Organisation.
Kevin Hollinrake
I will give way one last time; then I want to make some progress.
Andy McDonald
I am sorry, Minister, but that really does not address the point I made. There is an inalienable right under the Employment Rights Act 1996 for people to withdraw their labour. It is nothing to do with the International Labour Organisation. We are going to have two UK statutes that are in direct conflict with each other; which one will prevail—that Act or this legislation?
Kevin Hollinrake
I am very happy to write to the hon. Gentleman to confirm that point, but we absolutely believe that this legislation is lawful and compatible with human rights legislation and international obligations.
My right hon. Friend the Member for North East Somerset (Mr Rees-Mogg) made a typically insightful and thoughtful speech that no doubt provoked thinking on both sides of the Committee. He talked about the Henry VIII powers in the legislation, but I reassure him that they are restricted only to genuinely consequential amendments. I do not believe they are as wide ranging as he set out.
My hon. Friend the Member for Crewe and Nantwich (Dr Mullan) was absolutely right—this was also reflected in the contribution of my hon. Friend the Member for Southend West (Anna Firth)—that we are not anti-union, but we are pro-protecting the public.
Kevin Hollinrake
I will make some progress, if I can. I may come back to the right hon. Gentleman in a moment.
My hon. Friend the Member for Newbury speaks with great authority on these matters and, as I said, pointed out clearly that the ILO says that as a general principle MSLs are not restricted to essential services, as some Members have claimed, and can cover other elements such as education and railway workers. She also said quite rightly that from their speeches the Opposition seem to want the country to grind to a halt.
John McDonnell
It is irresponsible for a Minister to come to this House, when there is a clear conflict in the law that needs to be interpreted, without that interpretation and just to say that he is going to write to us. That is irresponsible. Will he now define to us what reasonable steps he expects a union to take to comply with the legislation as it is and to instruct its members to go to work during a strike? What are those reasonable steps?
Kevin Hollinrake
That would be for a court to decide—[Hon. Members: “Oh!”] Of course it would be for a court to decide, because the only action that can be taken against a union can be by the employer in the courts. A union would then define what the reasonable steps would be. I will move on.
Several hon. Members rose—
Kevin Hollinrake
No, I will not.
On the other points, the impact assessment will be available shortly. It is fair to say that we see the Bill as having a net benefit to the economy. Individual impact assessments will support secondary legislation.
To respond to the right hon. Member for Ashton-under-Lyne (Angela Rayner), we do not believe that the Bill reduces requirements for employers to adhere to health and safety and equality legislation. It is compatible with convention rights and international obligations—
Kevin Hollinrake
No, I am making some progress.
The Bill does not target union members, as clearly stated in proposed new section 234C(6) on page 4 of the Bill. In terms of devolution, we believe that minimum service levels are necessary across Great Britain, but we are of course keen to engage with the devolved Governments through consultation.
David Linden
I am grateful to the Minister for giving way. The Welsh Government and the Scottish Government have already made it crystal clear that they oppose this legislation; why is the Minister seeking to ram it though at the Dispatch Box in the House of Commons and completely ride roughshod over the devolution settlement?
Kevin Hollinrake
This legislation is subject to parliamentary scrutiny. This is the Parliament of the United Kingdom: it has every right to legislate. We believe this is needed across Great Britain, and industrial relations are clearly reserved to this Parliament.
Kevin Hollinrake
No, I will move on.
As we have made clear, we hope not to use the powers in the Bill if adequate voluntary agreements are in place where they are necessary. However, we cannot continue to rely on existing legislation or voluntary arrangements to help protect the lives and livelihoods of the people we represent. The public and workers reasonably expect the Government to intervene to protect people’s lives and livelihoods, and that is what we are doing by ensuring that essential services continue, even while workers are exercising their right to strike.
Question put and agreed to.
Clause 1 ordered to stand part of the Bill.
Clauses 2 to 4 ordered to stand part of the Bill.
Clause 5
Commencement
Amendment proposed: 32, in clause 5, page 2, line 15, at end insert—
“(2) But no regulations may be made under this Act or the Schedule to this Act before the Secretary of State has laid before Parliament statements of consent to the Act from—
(a) the Scottish Parliament,
(b) Senedd Cymru, and
(c) the Greater London Assembly.”—(Alan Brown.)
The intention of this Amendment is to prevent the Act coming into operation until after consent to the Act has been obtained from the Scottish Parliament, Senedd Cymru and the Greater London Assembly.
The Secretary of State for Business, Energy and Industrial Strategy (Grant Shapps)
I beg to move, That the Bill be now read the Third time.
While I am sure that the House would like me to enter back into some of the key arguments at this hour, I think I will for the purposes of brevity stick to the main principle at stake here, which is quite simply this: in many democratic countries throughout the world, and particularly among our European neighbours, we find that strikes are often banned entirely in what we would refer to as the blue light services. Yet in this country, the only blue light service to have strikes banned was the police in 1919 by a Liberal Prime Minister. I know of not a single member of the police who has ever lost their job as a result of that sensible restricted right to strike.
We are not proposing a Bill that would prevent people from being able to strike in other blue light services or in other areas. We are not doing what we have done with the police or with the Army in this country. We are not doing what they have done in other European nations or in countries across the world, including Canada, Australia and large parts of America. We are not doing any of those things because we respect the right to withdraw labour. Rather, through this legislation, which I note was receiving large majorities in the House this evening, we are simply proposing to protect people’s lives and to protect people’s livelihoods.
I ask you, Mr Deputy Speaker, how is it that Members in this House can look at their constituents and say to them that they should not have the right to an ambulance if they have a heart attack, a stroke or a serious illness? Why should that be left to a matter of chance, depending on their postcode as to whether those vital services turn up? Furthermore, after years of disruption through covid, why should our children have to miss school? Why should it be that people who work for themselves and rely on their own ingenuity to get their jobs and to take home money be denied over months and months the opportunity to get to work? We move this Third Reading this evening because we care about people in our workforce and their livelihoods and about our constituents and their ability to access vital services. That is why I commend this Bill to the House.
Angela Rayner
I thank all the Members who spoke so passionately for the Opposition Front-Bench amendments tonight. The Secretary of State has turned up for Third Reading and tries to provoke, but once again, as I said in the previous debate in Committee, the way in which he wants to portray our key workers, who make those concessions and who ensure life and limb cover, is disgusting and disgraceful, and he should be ashamed of himself.
We have heard time and time again that this Bill is impractical and insulting. It is a vindictive assault on the basic freedoms of British working people. It is full of holes and it has been rushed through on the hoof with no real time for scrutiny. I rarely find myself agreeing with the right hon. Member for North East Somerset (Mr Rees-Mogg), but this Bill is incompetent. It is badly written, it uses bad parliamentary and constitutional practice, and it is wrong that the Government are trying to bypass scrutiny. The Opposition have been clear throughout that we will oppose this sacking nurses Bill. If it passes, the next Labour Government will repeal it. It threatens key workers with the sack during a workers’ shortage and crisis, and it mounts an outright assault on the fundamental freedom of working people while doing nothing to resolve the crisis at hand.
Let us look at what the Bill is really about: a Government who are playing politics with key workers’ lives because they cannot stomach negotiations; a Government who are lashing out at working people instead of dealing with 13 years of failure; and a Government and Prime Minister who are dangerously out of their depth and running scared of scrutiny. We on these Benches will vote against this shoddy, unworkable Bill. I urge hon. Members on both sides of the House to stand up for our key workers, stand up for the British freedom to withdraw labour, and stand up for good faith negotiation by joining us tonight and voting down the Bill.
Alan Brown
As we have heard, the Government still have not listened, because they would not accept any amendments. The Secretary of State rehashed some of the old arguments: he said the Bill was about health and safety, but he then used the example of teachers. Teachers are not childminders—they are there to provide education —but he is using them as an excuse to allow other people to get to work. He talked about protecting ordinary workers, but what about rewarding the ordinary key workers who are providing vital services, instead of waging a culture war on them?
The Government have not listened to the fact that the ILO does not actually back their legislation. They have ignored the fact that European trade unionists have stated that the UK already has the most draconian strike legislation. They refused to acknowledge the point of my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) that the only other countries in Europe that allow Governments to stipulate minimum service levels and penalise workers by sacking them for not complying are Russia and Hungary. That is the company that the UK Government are looking to keep.
The Government try to tell us that workers such as nurses cannot get sacked, but the explanatory notes say clearly in their overview of the Bill that it will
“restrict the protection of trade unions under the 1992 Act from legal action in respect of strikes relating to certain services and the automatic protection of employees from unfair dismissal”.
That makes it clear that workers can get sacked if they do not comply with the work notices when they are told to work, even if they do not want to and they want to adhere to the strike.
The Government also have not listened to the right hon. Member for North East Somerset (Mr Rees-Mogg), who pointed out how badly written the Bill is and the unlimited powers that it gives to the Government. I note that he is suddenly in favour of the Lords amending legislation, which is a change in tune from recent years, when he was against that. It shows how bad things are when, yet again, we are relying on the unelected Lords to amend the Bill.
Mr Rees-Mogg
I am grateful to the hon. Gentleman for giving way. I am in favour of their lordships doing their proper job, which is revising legislation to make this legislation, which is very good, perfect—that is what they are there for.
Alan Brown
The right hon. Gentleman did not say that when it came to the European Union (Withdrawal) Act 2018 during Brexit.
The Bill allows individual workers and trade unions to be targeted. It is an assault on the devolution settlement. Employment law should have been devolved to the Scottish Parliament but, as I said earlier, Labour opposed it being devolved. Even worse, the powers in the Bill allow the UK Government to amend devolved legislation, which is an assault on the devolved nations. I am disappointed that Labour did not back the SNP amendment, which would also have protected the Welsh Government. I do not know why Labour sat on its hands about that.
The Bill is an assault on devolution, an assault on workers and an assault on trade unions. That is why we oppose it and why we need independence to get away from this institution.
John McDonnell
Briefly—I do not want to delay the House—I say to the Government that bringing forward this legislation during the current industrial relations climate demonstrates a lack of appreciation on their side for the strength of feeling of the nearly 1 million people who are taking industrial action and the millions who support them. The Bill is provocative: it will ensure that the current disputes are more bitter and last longer, and it will inspire other disputes. I hope that the other place brings forward amendments that will ameliorate it, but I warn the Government that, when the first trade unionist is sacked or fined, they will regret the reaction from the trade union movement, because it will damage our economy and our society as a result of their irresponsible and provocative actions tonight.
Question put, That the Bill be now read the Third time.
Strikes (Minimum Service Levels) Bill
Tuesday 31st January 2023
(1 year, 2 months ago)
Lords ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Amendment Paper: Committee of the whole House Amendments as at 30 January 2023 - (30 Jan 2023)
Strikes (Minimum Service Levels) Bill
Tuesday 21st February 2023
(1 year, 2 months ago)
Lords ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 30 January 2023 - (30 Jan 2023)
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, the public expect the essential services that they pay for to be there when they need them. This Bill aims to maintain a reasonable balance between the ability of workers to strike and the rights and freedoms of the public to access essential services during those strikes.
The latest ONS data shows there were 843,000 working days lost because of labour disputes in December 2022. This brings the number of strike days lost between June and December to nearly 2.5 million, which is the highest since 1989. Industrial action is disruptive for everyone: for those who rely on those essential services to get to work or care for their families, for the NHS trying to get the backlog down, and for schools trying to recover lost learning after the pandemic. It also, of course, vitally impacts on our local businesses, whose sales and productivity suffer.
While we are pleased that voluntary derogations were eventually agreed for the strike action in health sectors in December 2022 and early this year, I am afraid that is not guaranteed to be the case for future action or in all sectors. Indeed, during the ambulance service strikes in December and January, some derogations were not agreed until immediately prior to the strike action, leaving employers with sometimes only hours, not days, to implement full contingency plans. This creates a great deal of uncertainty for everyone concerned, including the staff, the public, patients and their families. Further, there is no guarantee that where derogations have been agreed the required numbers of staff will not strike on the day itself. This can create uncertainty and inconsistency across the country, and unnecessary risk to patient safety.
While I would emphasise that the Government firmly believe that the ability to strike is important—it is rightly protected by law—the recent industrial action has highlighted the disproportionate impacts that strikes can have on the public. We need to be able to have confidence that when strikes occur, people’s lives and livelihoods are not put at undue risk, and so do the public; that is why this legislation is needed.
I turn now to the detail of the Bill, which establishes a legal mechanism to implement minimum service levels for periods of strike action affecting certain services. It achieves this by making amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 that add obligations relating to minimum service levels to the list of requirements necessary for the union’s strike action to be protected from liability in tort.
The legislation will enable minimum service levels to be implemented in key sectors via regulations. The key sectors specified in the Bill are broadly the same set that were defined as important public services in the Trade Union Act 2016, which have long been recognised as important for society to function effectively. The six key sectors are health services, fire and rescue services, education services, transport services, the decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security. These are the right sectors, given the economic impacts of their potential disruption as well as the impacts on public safety and the ability of the public to go about their daily lives.
Regulations will be tailored to each relevant service to meet legitimate aims, such as safety, public health, access to work and to healthcare, among others. The Government believe it is only right that minimum service levels and the services they apply to are informed by consultations, as required by the Bill, and that there is parliamentary scrutiny of the regulations before they come into effect. This is why these regulations must be approved by both Houses of Parliament before they can be made.
The Bill and subsequent regulations are designed to enable employers to specify the workers required via a work notice in order to meet minimum service levels during strikes within those relevant sectors. Should a union notify an employer of strike action in accordance with existing rules, the Bill will allow the employer to issue a work notice to the union, seven days before the strike, specifying those workers needed to work during the strike and the work that they will need to carry out to secure the minimum level of service.
Work notices must not include more persons than are reasonably necessary to meet the minimum service level and employers must not have regard to whether a worker is or is not a member of a union when producing the work notice. Employers must consult the union on the number of workers to be identified in the work notice and the work to be undertaken, and have regard to any of their views before issuing that notice. Each employer and union must also adhere to data protection legislation regarding those work notices.
To enable a minimum service level to be achieved on a strike day and where a work notice has been issued, a trade union must take reasonable steps to ensure its members, when named on a work notice, comply with it and therefore do not participate in the strike. What is considered “reasonable” will to an extent depend on each specific situation and could include making it clear in its communications with members that, where members are named in a work notice and required to work on a particular day, they should attend work on that strike day. A union which fails to comply with this obligation could lose its protection against liability in tort.
Additionally, if an employee takes strike action despite being named on a work notice, they will lose their automatic protection against unfair dismissal for industrial action. While it is up to the employer, not the Government, as to whether disciplinary or legal action is taken in instances of non-compliance, these measures are necessary to enable employers to manage these situations in the same way as they would now with unauthorised absences or unprotected strike action.
The Bill ensures that minimum service levels align to existing law in respect of taking industrial action and associated legal protections. These provisions are needed to make minimum service levels effective where they apply. This legislation is not about sacking workers; it is about protecting people’s lives and livelihoods by enabling minimum service levels to be applied during strikes.
The Government have already released consultations on the minimum service levels for our blue-light ambulance and fire services and for rail services. These consultations ensure that the public and industry stakeholders, including employers, unions and their members, are all able to provide feedback on what the minimum service levels should be and how they are proposed to work.
Everyone wants to see an end to current strikes and we are doing all we can to negotiate fair and affordable pay settlements with the unions. But at the same time, we must act to protect the public for the future. This legislation is not about stopping or preventing strikes. It simply brings us into line with many other modern European countries, such as Spain and Italy, where minimum service levels are a common way to reduce the impact strikes can have on the public. However, we are not going so far as to ban strikes completely. We are taking a fair and reasonable approach by asking that, before a union takes strike action within a relevant service, they agree adequate voluntary arrangements of cover where they are necessary. Where this has not happened, we will introduce regulations to enable minimum service levels to be applied.
We are of course always mindful of and thankful for the contribution that public sector and other workers make to our country. But if trade unions continue to take disproportionate and potentially unsafe industrial action, we firmly believe that we need to take steps to protect the public. I beg to move.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, this skeleton Bill, for which the Government have no manifesto mandate, would give the Secretary of State sweeping powers and deny proper parliamentary scrutiny and accountability. It also seeks to override the authority of the Scottish Parliament and the Welsh Parliament. By attacking the fundamental freedoms of working people, it almost certainly contravenes international law, including ILO convention 87, which the UK signed up to.
Can the Minister confirm that the Bill ultimately gives the Secretary of State powers to set so-called minimum service levels for strikes at 80%, 90% or, indeed, 100%? In which case, would it not be more accurate and honest to title it the “ban strikes” Bill? This morning, the RPC gave the Government’s impact assessment of the Bill a rating; it is red—“not fit for purpose”. The impact assessment published this afternoon says that there will be no impact on the UK-EU trade agreement and its level playing field clauses. However, as the Bill runs alongside other threats to worsen workers’ rights contained in the retained EU law Bill, it would be very unwise to rule out retaliation.
What we do know for sure is that the Government’s evidence base for the Bill is deeply flawed. Countries which Ministers commonly cite as comparators do not, in fact, impose minimum service levels by state diktat; nor do they give free rein to sack striking workers who refuse an order to work. Taking powers to strip nurses, teachers, firefighters, transport workers and others of their livelihoods, when they strike for better pay and conditions, is not generally regarded as a feature of a free society. Only now, at this late stage, are consultations being launched in some of the sectors covered. We do not know yet which employers and grades are affected, how those six sectors are precisely defined, or how many more sectors could be added in the future. What is clear is that arrangements for emergency cover are already agreed in good faith between employers and unions across a range of emergency services, and the Bill risks squandering all that good will.
I have spoken to workers who have been on strike or who have been balloted for action, including a firefighter union rep called Kasey. As a dedicated professional who puts her life on the line to keep us all safe, she asked, “What is the Bill really trying to achieve?” Kasey has a seven year-old daughter to raise and, with inflation running at over 10%, she is struggling to make ends meet. She, along with her colleagues, took the difficult decision to vote for strike action, and the FBU secured an 88% yes vote on a 73% turnout. On the back of that ballot result, the fire service employers have now returned to the bargaining table and improved their offer—but the Bill would pull the rug from underneath such negotiations. If, ultimately, the Secretary of State can unilaterally impose minimum service levels, and workers who do not comply can be sacked, where is the incentive on the employer to negotiate, let alone to come to a fair agreement? Many decent employers, alongside the TUC and the unions, say that the Bill raises more questions than answers, so perhaps the Minister can provide some.
What exactly are the “reasonable steps” which unions are expected to take to ensure that staff comply with work notices or face draconian attacks on their funds, and does this burden on unions also apply in respect of staff who are not union members? If a union is deemed not to have taken these undefined so-called reasonable steps, is analysis from the House of Commons Library correct to contend that all workers on strike in a given sector would lose protection against dismissal whether or not they are named to work?
Could workers who are required to work during a strike but who call in sick on the day be sacked, and what assessment has been made of the impact of such sackings on our public service recruitment and retention crisis, including on workforce morale when it is currently at rock bottom? What would prevent unscrupulous employers using work notices to target and victimise elected workplace union representatives, or to discriminate, directly or indirectly, on the grounds of race, sex or any of the other protected characteristics?
Has the Minister considered the real-world consequences of the Bill? Anyone with IR experience can see that it would poison relations between employers and unions by rigging the balance of power still further against working people, and by seeking to frustrate the effective expression of legitimate grievances.
The UK already has some of the most draconian laws on strikes. However, in my experience, people will always find ways to stand up for justice for their families, their workmates and their communities. It is very likely that there would be more action short of strike action: work to rules, overtime bans, and potentially the disruption of mass sickies and spontaneous walkouts. Disputes would become prolonged, embittered and even harder to resolve, and the Bill would create trade union martyrs, causing more unrest.
I return to Kasey’s question: what problem is the Bill really trying to fix? After all, strikes are merely a symptom, not the cause, of discontent. After more than a decade of pay squeezes, deep funding cuts and now a record number of families turning to food banks, we can all see the pressure. We know the toll that takes on NHS staff, teachers and key workers right across the board, and that, as burned-out public servants leave for better paid and less stressful jobs elsewhere, the recruitment and retention crisis is only making public service backlogs worse. That is why a majority of the public believe that there is a better solution to the current wave of strikes against real-terms pay cuts. It lies in the Government’s own hands, and it is simple: Ministers should come to the table, in good faith, and negotiate.
This shoddy Bill is unfair, undemocratic and unworkable, and that is why Labour is committed to repeal it in its entirety.
Lord Allan of Hallam (LD)
My Lords, various circumstances may lead to legislation being rushed through Parliament. We might have to respond to international developments beyond our control: a conflict breaking out, or an urgent need to approve a treaty. There may have been an unexpected incident where it is clear that our current law is inadequate and there is cross-party agreement to work urgently to fill a gap. Alternatively, we may have a Government who find themselves in trouble and cook up some kind of legislative proposal so they can fill their media grid by appearing to be doing something.
There are no prizes for guessing which of those scenarios we on these Benches believe we find ourselves in today. There is no outside pressure or unexpected gap in the law, but we do have a Government who are floundering and seeking to distract attention rather than dealing with the real problems facing our country. I will focus on the crisis in health and social care in my remarks, while other noble friends will speak to transport and broader concerns about industrial relations later.
First, I want to flush out one area which illustrates the hollow political intent behind this legislation. That is the Government’s attempt to sell it as a copy of what happens in other European countries. To hear this Government, of all people, ask for support for regulation on the basis of aligning with EU countries tells us either that they completely lack a sense of irony or that they actually want us to laugh at them. You can imagine someone in No. 10 getting excited about this angle as one which will confound those pesky Europhile Opposition politicians: “How can they oppose this if we point out that it is just like the EU countries that they love?” Gosh, you have really got us there; what can we say? Oh yes, we can say that this is nonsense. There might be an argument for saying that this is alignment if the Government were planning to import French, German or Spanish labour law wholesale, with works councils, collective bargaining and the whole kit and caboodle. Can the Minister confirm today what other elements of EU labour law the Government plan to adopt in the near future? But, of course, that is not what they are proposing, and their argument falls apart as soon as you recognise that each country has a unique way of managing relations between workers and employers that depends on a complex web of relationships and legal powers.
Let us turn to one of the areas that the Government say is a primary driver for the Bill: health and social care. There is as near to consensus as you ever get in politics that the biggest challenge facing our health and care sectors is a lack of staff to provide the services that we need. We discuss these staff shortages in this House continually, and the Government themselves agree that we cannot improve these essential services without solving them.
These shortages pile extra stress on to those who are having to cover gaps, making the idea of going into these essential roles even less attractive. The overriding priority for any Government faced with this situation should be to work at making these professions more attractive, and that does mean looking at pay, but also at the morale of the profession. What we are seeing from this Government is the opposite of that: they set out to give the impression that they are immovable on pay, that they have few ideas on staffing levels, and as icing on that hard cake they come up with this Bill as a warning to anyone who dares to challenge them.
There is nothing in this Bill that will lead to more health and social care staff being hired, but it rather represents another signal from this Government about how they intend to treat those who are employed in these essential services. Staff in the NHS taking industrial action feel caught between the devil and the deep blue sea. They are dedicated professionals who would rather be at work caring for people than on the picket line, but they are genuinely concerned that their living standards will keep eroding if they do not take a stand to defend them.
There is an opening for a positive discussion between the Government and those professionals about what a fair settlement would look like, and about how they can work together to ensure that there are adequate staffing levels all year round to help patients and the staff themselves. Instead, under this Bill, the Government will be forcing conversations about staffing levels to happen under threat of sanctions. That is hardly conducive to good dialogue.
The Government have one more trick in their media playbook: the consultations they are running on minimum service levels that are engineered to be able to show public support. There is no option in the consultation to see whether people would rather the Government settled the dispute so that industrial action itself went away—something I suspect would have overwhelming public support in the case of NHS staff—and there is no attempt to explain the trade-offs and complexities involved in a mandated versus a mutually agreed approach.
The Government’s case is not that there has been a failure to provide baseline cover during recent strikes but that they want more consistency and prior notice. But if the price of that consistency is a worsening climate of hostility between employers and staff, we have to ask whether this is worth it. In sectors where there is a queue of people wanting to take on jobs, playing hardball like this might be defensible, but where those queues are empty and our overriding public goal has to be to fill them, this is a very high-risk strategy. As always, we do not wish for the Government to fail, but we would be remiss in our duty if we did not raise a flag where we think this is likely to be the case. The Government have had their announcement and shown that they are not taking the strikes lying down, but the price of following this approach to the bitter end is that it risks undermining their overwhelming priority, which is to improve public service staff recruitment and retention.
It is not too late for the Government to think again about where their time and energy should be best directed if we are to see meaningful, systemic improvements to health and social care rather than a mere manoeuvre past a bump in the road. The risk otherwise is that in pushing hard to establish mandated minimum service levels during industrial action, this very effort will contribute to being unable to maintain what are all too often inadequate levels of service in these vital sectors all year round.
I always find the impact assessments that come with legislation illuminating, and we received the one for this Bill today, which did not disappoint. It shows us another possible way forward. The first option is voluntary minimum service level agreements, with no government incentives, in key public services. The impact assessment suggests that similar benefits could be derived from voluntary agreements, with the main downside being that employers would need to offer incentives in return, perhaps in terms of pay and working conditions.
I close with a question to the Minister and ask him to explain whether this option to make a good-faith effort to negotiate more voluntary arrangements for strike cover was ever seriously explored. This would be a way both to guarantee services and to motivate staff to join and stay in these public services. I suggest to the Minister that in the current climate, we might get further by offering more carrots rather than waving ever-bigger sticks.
Lord Judge (CB)
My Lords, this is a troublesome piece of legislation. It asks us all a very simple question: when does the right to withhold your labour—that is, to strike—cease to be a right? It answers that question too, and the answer is a bit depressing: the right ceases when, following a ministerial decree, your employer can oblige you to work, and if you fail to do so you can lose your job. That is pretty stark. I am not going to try to discuss the advantages and disadvantages of the proposed legislation or the speeches we have just heard. I am more troubled by the idea that a unilateral change in the contracts of employment of thousands of people can be made by a piece of secondary legislation. That is all this Bill is. Forgive me.
Can we start with Clause 1? That is a good place to start, is it not? Here it goes:
“The Schedule … amends Part 5 and other provisions of the 1992 Act to restrict the protection … where provision has been made in regulations”.
It asserts that this is a Bill about regulation-making. It incidentally overrules legislation that came into effect under a Conservative Government—the 1992 Act. How is it done? The Secretary of State may make regulations; we keep being told that. But before we make any regulations, can we please remind ourselves that whatever regulations a Minister may choose to make, he can change them? Not only that: he can change any Act of Parliament. He can change not only any Act of Parliament but any Act of Parliament that we have not yet seen and may yet come before us before the end of this Session. So it is a power to get rid of legislation that we do not even have. It is a rather strange thing.
Now, what does the Secretary of State do? What is his responsibility? Let us look at it. His responsibility goes this far and—lamentably, I suggest—no further:
“Before making regulations … the Secretary of State must consult such persons as the Secretary of State considers appropriate.”
He does not have to consult anybody. He can consult whom he likes. Even if he does consult people of admirable quality and dispassion, he does not have to take the slightest notice of them. That is an open-ended entitlement of the Secretary of State about how he should act. This is irrespective of overruling primary legislation. This notice which comes into effect will be produced by the Secretary of State as he or she thinks appropriate, without further consultation with anybody in the field of work, the trade union movement or anywhere else.
Having done that, he then happily drops out of the picture. What happens then, when the regulations have been made, within the six services? I declare an interest: my wife spent all her working life as a paediatric physiotherapist in the National Health Service, and my daughter and granddaughter are both teachers working in the public sector. An employer may give a work notice to a trade union, entitling the employer to identify the persons required to work and have at least this much of a consultation process, one step up from the Secretary of State:
“the employer must … consult the union about the number of persons to be identified and”—
good Lord—
“have regard to any views expressed by the union”.
The employer is not bound by them but must just “have regard to” them—that is an interesting phrase in legal terminology, and I do not wish to be the judge who has to decide whether the employer has or has not had regard to the particular views expressed by the union.
Finally, if you do not agree, paragraph 8(2) in Part 2 of the Schedule says that you can lose your employment if you do not go to work. I am not experienced enough to know, but, as a matter of sense, this dictation—from an employer against whom you are striking because the conditions he provides for you are unsatisfactory—does not sound like a recipe for a sensible solution to a difficult industrial dispute.
But, ultimately, it is the way that this legislation is before us. Once again, it deals with very important issues: this is an issue of great principle, and I understand why the Opposition say that, if they come to power, they will repeal this. This is an issue of great principle and moment for hundreds of thousands of people, and it is all being done hidden away in secondary legislation. This will not do.
Baroness Browning (Con)
My Lords, I am pleased to contribute to a debate that addresses six key areas, all of which address public safety. I also look forward to hearing the maiden speech of my noble friend Lady O’Neill further on in the debate.
With my noble friend at the Dispatch Box, I attended an all-party briefing meeting on the Bill two weeks ago, and I recall him saying, in the discussion about the Bill, that, despite putting this on the statute book, he hoped it would never be needed. This begged the question: why is it needed? In his opening remarks today, he gave an example of the ambulance service in strike mode, where there were very real concerns about the service that would be supplied. I am concerned that, across all six sectors, we have some form of safety net as far as the general public are concerned, notwithstanding my appreciation of people’s need to strike. I declare an interest: many years ago, I worked for the NHS in an operating theatre. On a personal basis—it was not because I was stinking rich that I could afford to do so—I would not have withdrawn my labour under any circumstances, and I did not: it was an emergency operating theatre.
I agree that there is tension here. Some of the most eminent trade unionists in the country are sitting in this Chamber—I notice the noble Baroness who opened for the Opposition—and they will have a lot of experience. It is quite right that they articulate that because this is a matter of tension, as is so often the case in legislation before this House. Just before this debate, we heard the tail-end of a Third Reading debate on abortion clinics. Tension between competing interests—firmly believed and firmly held views—is the nature of the work we do. At the end of the day, the Government have to use their judgment.
So I recognise that there is a tension between the Bill my noble friend has brought forward and the existing Trade Union and Labour Relations (Consolidation) Act 1992. It looks as though the Bill will remove the protection and status from trade unions and workers in areas where minimum service levels are needed. I just want to articulate, if I may, on a personal level. When I leave home and come here during the week, I leave behind carers in charge of somebody I love very much. The last time there was an ambulance strike, I basically said, as I went through the door, “Don’t take him out for a walk today.” That was because I did not want to put that additional risk into his life, because I knew things were really not good with the ambulances.
I have every respect for the ambulance service—I have had many occasions to be grateful to it personally—but that is how people out there feel, whatever their admiration, and there is a great deal of admiration for all those who work in our essential services. That is the mindset that is starting to creep in among people who have responsibility for others. It is, I hope, to relieve that mindset that my noble friend feels there have to be minimum service levels that not only the Government but the rest of us who care for vulnerable people, or who may have accidents or other things that happen to us during the course of the strike, can rely on. There is a creeping fear in this country about what may happen to me or my loved ones. It is a spill-over from the lockdown, I believe, but people are taking a lot more notice of their safety and their loved ones’ safety.
The Government, when they come into office, have a contract with the people to protect them. It is a duty. Article 2 of the convention in the Human Rights Act is about safeguarding the right to life, and the Government should take appropriate measures to safeguard life by making laws and taking steps to protect you if your life is at risk. It is not just a matter of high-profile cases that we might know about that occur around the world or in third-world countries. The Government and Ministers have responsibility for the population of this country, regardless of how they voted, to make sure that our laws do not put that fear into people’s hearts when they shut the door behind them in the morning, that those services we have been able to depend on, particularly in the areas of health, fire and social services, will be there if they are needed in an emergency. That does not take away people’s rights to strike, but it provides what we might refer to as a safety net when it is needed. That is why I support my noble friend.
Of course, I hear what the noble and learned Lord, Lord Judge, says—I never fail to listen, as I am sure we all do, to what he says—and I am very pleased that the affirmative resolution has been written into the Bill for the secondary legislation. As a former member of the Delegated Powers Committee, other members of which are in the Chamber today, I would have found it outrageous had it not been an affirmative resolution. The Minister has quite a hard task. I hope he never has to use the nitty-gritty of the Bill, but there are those of us who are fearful when we close the door behind us, because of the activities of the essential services at the moment—I speak no detriment to them for doing it—and I hope that he will get that balance right.
Baroness Chakrabarti (Lab)
My Lords,
“The trade unions are a long-established and essential part of our national life. We take our stand by these pillars of our British society as it has gradually developed and evolved itself, of the right of individual labouring men to adjust their wages and conditions by collective bargaining, including the right to strike”.
Today, more than ever before, we must add individual labouring women to that description, but the original words come not from Keir Hardie nor even Clement Attlee, but from Winston Churchill’s 1947 Conservative Party conference speech—even after his legendary wartime leadership and what must have felt quite a bitter defeat in the subsequent general election. Contemporary Conservatives would be wise to learn from the magnanimity of their greatest leader as he built on the Disraeli tradition of protecting the right of working people to organise. Today’s Government should do this, not just for a shot at a better place in history but because it is both principled and politically shrewd.
Over 40 years earlier and long before the right to strike had been enshrined in the international human rights settlement, in which he played a significant part, Churchill observed:
“It is most important for the British working classes that they should be able if necessary to strike—although nobody likes strikes—in order to put pressure upon the employers for a greater share of the wealth of the world or for the removal of hard and onerous conditions”.
In today’s world of union-free and exploitative Amazon warehouses—one of food banks next to investment banks—his 1904 comments could not be more salient. Rights to union recognition, collective bargaining and to withdraw labour are merely the employees’ equivalent of property rights, including to engage in co-ordinated consumer or investment action against unscrupulous companies or foreign powers that exploit slave labour. How can it be regarded as conservative to attack them further?
The mechanism chosen by the drafters of this Bill is itself, as we have heard from the noble and learned Lord, Lord Judge, as illiberal as its intentions. For legislation dealing with minimum service levels not to prescribe what those levels are, and for it instead to leave its stated substance to the Secretary of State and secondary legislation—including amending Acts of Parliament—is yet another executive power grab from the legislature under this Government. It is also a divisive snub to devolved Administrations and crucially to working people themselves. As a number of European trade unionists have already pointed out, Ministers’ comparisons with minimum service levels elsewhere on the continent are false. Other jurisdictions provide for negotiated minimum service levels and lack the harsh supermajorities required for ballots for industrial action imposed here, during years of Conservative rule.
The Government may sidestep Parliament, and employers may impose work notices on individuals to cross picket lines contrary to their conscience. They further may slap debilitating lawsuits on trade unions who do not take so-called “reasonable steps” to ensure compliance. The clear direction of travel is of sacked workers, bankrupted unions, and flagrant violations of international human rights obligations freely to associate and to strike.
How on earth will any of this resolve current workplace disputes caused by an existential cost of living crisis and years of underinvestment in vital public services and key infrastructure by Government and shareholders alike? Surely this can only inflame disagreements that must ultimately be resolved by reasonable negotiation. Services will not be safeguarded, let alone improved, by even more demoralised staff, more time off sick and a range of industrial protests just short of formally striking.
One begins to suspect that this Government’s tactical culture wars are no longer just being waged in the home department. They have now, it seems, spread across Whitehall and the Cabinet—divide and rule instead of unite and govern, and then blame the poorest and most vulnerable in society for the mismanagement, short-sightedness, greed and even corruption of the wealthiest and most powerful.
But incendiary actions have consequences. In the private sphere, the Government will be seen to be siding with intransigent, unscrupulous and profiteering rail companies with which passengers have little sympathy after years of rising fares and diminished service. In the public realm, the Government are abusing their power as legislator, further undermining the nurses and ambulance drivers who are as much the heroes of the pandemic as any serviceperson was during World War Two. Their concerns are as much about the state of the service as their own terms and conditions. These are highly ethical people with whom we trust our lives and those of our loved ones, and, in any event, they are prohibited by law from putting lives at risk during industrial action. Agency workers are already paid multiples of their earnings, while they resort to food banks. What are they supposed to do if employers and Ministers will not talk and will not listen?
No doubt some noble Lords on the Benches opposite are perhaps nostalgic for the days of Mrs Thatcher—as she then was—versus the miners. Here I agree with many commentators that those times were significantly different. Those urging a tough line towards current strife point to the greater numbers of union members in those days. I counter that pits were not located in every community in this country. The traditional all-male workforce was more easily demonised in the shires as consisting of ideological dinosaurs. They were not always led by the more articulate, pragmatic and sympathetic—and often women—trade union advocates of today.
Perhaps I am naive about how government consultants calculate the electoral benefits of constant divide and rule as opposed to one-nation politics. However, current polls would appear to favour my argument that facilitating negotiation rather than more controversial legislation would be a better path for anyone seeking to regain public trust. Alternatively, Ministers can continue to underestimate the sense of fairness and decency of the people they are meant to serve. They can add NHS professionals, firefighters, rail workers and no doubt countless others to the lawyers, climate change and race equality protesters, and refugees already on their ever-growing list of the unworthy and unwelcome, to be abused or ignored.
Lord Strasburger (LD) [V]
My Lords, the Bill perfectly epitomises the sorry state this Government have reached and the escalating damage they are doing to our country. For context, I invite your Lordships to cast your minds back to the heady days of 2012. Despite having to wrestle with a worldwide economic crash that originated in America, ours was a respected and proud country. We had just put on the conspicuously successful and joyful London Olympics, during which we had shown how we happily welcome strangers to our shores. We were admired throughout the world for our businesses, science, creative arts, diplomacy, public services and Parliament. Yes, we had problems, such as our long-term failure to tackle poor productivity, but our optimism and self-belief gave us a chance to come together to finally fix those issues.
Where are we now, 11 years later, following seven tumultuous years of Conservative-only rule? We have been hopelessly divided by a near stalemate in the Brexit referendum, a vote that was scarred by blatant dishonesty and Russian interference—which, incredibly, the Government still refuse to investigate. Some of our most successful industries and sources of soft power such as the creative arts have been hobbled by a badly botched trade agreement with the EU.
The Government’s response to Covid was characterised by early dithering, resulting in many extra deaths, and rampant PPE corruption on a scale of which rulers of a banana republic could only dream. Our friends abroad have watched our rapid decline and our Government’s ridiculous boosterism initially with irritation and incredulity, which then became hilarity, and has now reached its nadir in pity for our self-inflicted plight.
The wretched little Bill we are debating today is just the latest salvo in the relentless attack to which this Government have subjected our democracy. It started with the illegal prorogation of Parliament and has continued with frequent attempts to sideline both Houses and excessive use of regulations to make important policy decisions. With the swaggering confidence of a playground bully whose behaviour has never been checked, this Government now table another Bill which relies on Henry VIII powers for all its decisions.
This foolish attempt to suppress strikes is poisonous, unworkable and counterproductive. It comes from a Government who have reached the end of the road, have run out of ideas—if they ever had any—have expelled their most able talents and are left with the dregs and do not care how much damage they do as they head for the exit door. This is a Government who cannot or will not negotiate with striking public sector workers to settle their grievances, and instead seek to restrict their rights to express those grievances. It will not work and will in fact make matters worse by poisoning industrial relations.
The Government will say that they hope never to have to use these powers, that their mere existence will prevent strikes being called. If you have a gun and are not prepared to pull the trigger, you do not have a gun. Striking workers will not take this legislation seriously unless the Government pull the trigger—with all the bitterness that results.
As to whether it will work, the Minister is fond of reminding us that similar legislation exists in other countries, including France. SNCF, the French national railway, was on strike last week and will be striking again on 7 and 8 March. So, their version of this legislation is working very well, is it not?
Our NHS is struggling to run, with 140,000 unfilled vacancies, to a large extent caused by the Government’s decision to go for the hardest Brexit possible. How will retention of existing staff and recruitment of new staff be helped by the Government switching from clapping to sacking nurses and doctors? Is that really going to happen? I hope not.
The Government aim to attain these powers through a Bill with just six clauses. This Bill is merely the emaciated skeleton of a Bill because all the meat, all the substance, is for Ministers to decide later, however the mood takes them, after Parliament has had its small say. They cannot or will not tell us how the minimum service levels will be set relative to the abysmally low service levels the public are currently enduring, even where there is no strike.
Both sweepingly broad and disturbingly uncircumscribed, this blank-cheque style Bill is exactly the kind of insult to Parliament and parliamentary democracy that we are used to seeing from this Government. I am increasingly convinced that it is yet another product of a room somewhere in the bowels of Whitehall that has a sign on the door saying, “Something Must Be Done Department”, followed by a scrawl of graffiti saying, “Although It Will Only Make Things Worse”.
This dreadful Bill needs to crawl back into the dark space from which it emerged. It is the product of the worst Government I and many others have had the misfortune to witness in our lives; a Government already in their death throes for all to see, no doubt including those within it. The sooner this wretched Government go, the sooner ugly, unworkable and counterproductive ideas such as this Bill will stop blighting our Parliament and our country.
Lord Dobbs (Con)
My Lords, I add my welcome to my noble friend Lady O’Neill of Bexley. I hope that this afternoon’s will be the first of many fine interventions from her in this House.
I hope I would have had the courage to have been one of those early strikers. I hope I would have been a Chartist. I hope, had I been a politician, that I would have supported and fought for the Trade Union Act 1871. I am not sure why but I have always been particularly affected by the matchgirls’ strike of 1881—phossy jaw and so much unnecessary suffering.
Yet trade union law is about a balance: a balance between rights that are matched by responsibilities. That is why I was proud to play a part in supporting my old friend and former boss Norman Tebbit when, in the 1980s, the Conservative Government reformed trade union laws to bring back that balance between rights and responsibilities. There were five Employment Acts and a Trade Union Act that dealt with the closed shop, secondary picketing, members’ postal ballots and so much more.
At the time, the Labour Party screamed in outrage, but what happened when Labour eventually got back into power? Absolutely nothing. Labour’s 1997 manifesto promised that the key elements of those Conservative reforms would stay. It said, “There will be no going back”—that is a quote—and none of those terrible trade union laws were repealed. Those laws did not stop strikes; they balanced the rights of trade unions against the rights of others, which is precisely what this Bill seeks to do.
This Bill covers a lot of different sectors. It is interesting that Labour concentrates so heavily on nurses and health workers, with barely a squeak about Mick Lynch and the RMT, but I understand why that is so. Their job is to oppose, just as our job as a House is to improve; frankly, I would be surprised if this House and the Government were not able to find some improvements, if I can put it that way. I listened closely to the words of the noble and learned Lord, Lord Judge, as far as that is concerned.
I have some doubts and questions for my noble friend the Minister about the relevance of lumping nurses and health workers in with train drivers and border staff. There seems to be a spreading consensus in the political world, on both sides of the political divide, that our health services require fundamental reform. The NHS is not the envy of the world. Too often, it looks like something in desperate need of new thinking. That is not the fault of the nurses, so I wonder whether any rearrangement of nurses’ obligations should not wait until it can be part of that fundamental reorganisation of the NHS that we so desperately need. It is a thought; I expect that this House is going to offer plenty of other thoughts too.
The Labour Party says that we can leave it all up to the sense of responsibility of the trade unions. I suspect that I am not the only one in this House who is old enough to remember the way in which Vic Feather, Jack Jones and Hugh Scanlon opposed Barbara Castle’s Industrial Relations Bill—Barbara Castle, no less. Scarcely a pawn of the wicked employers, was she? Trade union leaders insisted that Mrs Castle’s Bill was unnecessary and gave a solemn and binding commitment that they would ensure fair play. “Leave it to us”, they said. I remember how “Solomon Binding” came along in his great big hobnail boots and kicked that Labour Government to pieces.
Let us bring that up to date. The current train strike has been going on since last June, with eight months of inflicting misery on others—including other workers. Yet Labour wants to go back to Solomon Binding. Perhaps he might make a reappearance in the future but, if he does, he will have to dance much more daintily than he has ever done in the past.
Let me be careful here. It is no great secret that the Labour Party hopes soon to be back in power. Let me offer a thought. Just imagine that world of Labour back in power—I find it very difficult to do so but let us just imagine it. We are told that the Labour Government will repeal this legislation, but I have no doubt that this legislation will survive. No future Government would lay themselves open to the accusation that they are anti-patient, anti-commuter, anti-student and anti-ordinary worker. No Labour Government would risk the accusation that they sold the public interest out to any paymaster. I think that they will do a Blair and move on.
At Second Reading in the Commons, Angela Rayner said that this is
“a vindictive assault of the basic freedoms of British working people.”—[Official Report, Commons, 16/1/23; col. 66.]
Some might say that that is precisely what this train strike is—an assault on the basic freedoms of British working people to get to their places of work.
The Bill does not ban strikes. It simply protects the interests of the public and the weakest in our society, who have a right to demand that their basic public services continue, even when Mick Lynch decides that he wants yet more. Do not ordinary people have a right to their train services, their border security, their emergency ambulances, their children’s schooling and their emergency fire support? That is what the Bill is designed to ensure.
Here is another bit of historical context. The first strike in recorded history was in 1152 BC—more than 3,000 years ago, when workers at the royal necropolis of Deir el-Medina went on strike over the late payment of wages. I knew that your Lordships would want to know that. It is still the case that some strikes are necessary and honourable, and the right to strike is an essential and continuing part of our freedoms.
The Bill is not anti-strike; it is pro-worker—those workers who wish to get to work and who have wished to get to work over eight months of Mick Lynch and his ego-trip trying to deny ordinary people the facility to go out and work for their families. I notice that the Labour Party remains very quiet about Mick Lynch and his strikes.
The Bill is not designed to sack people; it is a Bill to keep the country working. The Bill is not an attack on our freedoms; it is a Bill that aims to restore that vital balance between rights and responsibilities, without which freedoms, jobs and basic rights die. That is what this Bill attempts to ensure. I wish it well.
Lord Monks (Lab)
My Lords, here we go again. The noble Lord, Lord Dobbs, has taken us through some of the industrial relations history, going back many centuries in some cases. It shows that it is a rite of passage for successive Conservative Governments, since Mrs Thatcher and Lord Tebbit, to legislate against trade unions and to minimise their scope for action. We are the old enemy, as has just been very graphically described in that last contribution. It reflects a nostalgia to replay the epic battles of the 1980s, only this time it is nurses and NHS staff, fresh from being applauded in the pandemic, who are now on the front line. It is not coal miners or printers; the world has changed since Lord Tebbit’s high-water years. As can be seen regularly from the polls, these workers who have been taking action are getting a lot of public support at the present time. That must be taken into account.
This is all against the background that we have seen in recent decades of rising inequality, the poor getting poorer and many workers working on a more insecure basis. If you are talking about balance, the other side of this House has got the balance wrong. The right way is to give workers more scope.
By the way, where is the employment Bill we were promised, which was going to give workers in the gig economy greater rights and greater freedom? That is buried somewhere, while staff have been diverted to the exercise that we are debating today.
At the moment, there are mixed messages all over the place from the Government: one minute Ministers are cooing that they want to talk to unions, while the next minute this crude club of a Bill is being swung at the unions, despite the fact that we already have some of the toughest trade union laws in the democratic world.
The Government must face up to the fact that, with inflation running at 10%, with pay in the private sector rising at around 6%, and with the public sector lagging well behind at half that, they have a very big problem in respect of their own employees. In a democracy, you cannot dam the wave of discontent, and this is a legitimate discontent that we are talking about at the moment; you have to find settlements and a way through.
Others will comment on the constitutional outrage of this skeleton Bill, with its absence of any detail about what minimum standards are needed to run, say, a railway or a hospital. The extensive claiming of Henry VIII powers would make even the old king and Thomas Cromwell blush. In his intervention in the debate in the other place, the Member for North East Somerset—Mr Rees-Mogg, no less—put it very well when he invited explicitly your Lordships’ House, our House, not to accept the Bill in its present form. He regarded it as unconstitutional, and he is right on this Bill. Of course, no one can accuse him of consistency, because he is the author of the retained EU law Bill, which will be in a Committee of this House on Thursday, which is also a skeleton Bill, giving wide powers to Ministers to avoid parliamentary scrutiny.
I am not against minimum standards, particularly as far as public services are concerned, but they will work only if they command respect and are fair. In particular, they need to be agreed. Agreements exist in some key sectors already; we heard about the ambulance service, and nuclear decommissioning is another one. In other sectors, nobody has ever thought that they were necessary. If they are going to be necessary, you would assume that the Government would be thinking about how they could get support for such measures, not issuing diktats. In fact, when you look at those countries overseas that have these arrangements, you see they are part of far more union-friendly labour codes than our restrictive regime in the UK. To take just one part of the Bill—the withdrawal of unfair dismissal protection from workers who refuse to work when called in during a strike—no other democratic country has a measure of that kind.
I ask your Lordships to look at the Bill from the point of view of a union. A dispute has arisen and there is a grievance. Before it does anything about it, the union has to hold a secret postal ballot, it has to surmount the thresholds on turnout and majorities, and it has to give due notice to the employer—all of which have been introduced, as we heard in the history lesson given by the noble Lord, Lord Dobbs. If the union can leap those hurdles, the strike can commence. But once this Bill’s provisions have been enacted, individual members can be called into work, in effect to break the strike. That is what they will be asked to do, and if they refuse they can be fairly dismissed. That is a recipe for a whole lot of extra trouble, at a time when the emphasis should be on finding a solution to the original dispute. The result will be an additional dispute, and a very bitter one at that. In the 2019 Queen’s Speech, the Government stated that no individual worker would be targeted. What happened to that promise? It seems to have disappeared.
It used to be the case that Governments tried to be exemplary employers, setting an example to the private sector; Stanley Baldwin, Winston Churchill and others always made that clear. But now the public sector is in crisis, with pay falling drastically behind many other sectors, chronic staff shortages and too many services not performing acceptably—on a normal day, TransPennine, for example, would struggle to meet any decent minimum service. The Government need an initiative to tackle these real problems, instead of messing around with this tiresome Bill.
Could the Minister put the Bill to one side? Could he consider launching a consultation with the TUC and relevant unions on minimum standards to see whether agreements could be reached where they do not already exist? Let us face it: to get an agreement could require some uprating in pay. That is what some other countries have done, by the way, in their minimum standards agreements. If not, the Bill will, if enacted, inject poison into already difficult situations.
The impact assessment for the old Transport Strikes (Minimum Service Levels) Bill warned of more frequent disputes, as did my noble friend earlier, and more action short of strikes. Others have warned of mass sickies. This is a time for industrial relations statesmanship, not political preening and posturing. It is time the Government took a different course.
Baroness Donaghy (Lab)
My Lords, whoever fixed the date of this Second Reading for Shrove Tuesday must have a real sense of humour.
Only last month, the House witnessed a remarkable debate on two reports—one from the Secondary Legislation Scrutiny Committee, moved by the noble Lord, Lord Hodgson of Astley Abbotts, and one from the Delegated Powers and Regulatory Reform Committee, moved by the noble Lord, Lord Blencathra. I was privileged to sit through that debate and the overwhelming view was that the Executive were guilty of an abuse of power, which is a threat to Parliament and to democracy, including skeleton Bills and power grabs by Secretaries of State to decide on issues the details of which were unavailable, as were most impact assessments. If they were available, they were totally inadequate. All the detail would be contained in the secondary legislation, which was not available. The extent of those powers, many of them Henry VIII powers, rendered this House’s job of proper scrutiny impossible—a point that was made many times by the noble and learned Lord, Lord Judge, and by others again today.
The noble Lord, Lord True, responded to that debate on behalf of the Government and assured us that he was in listening mode. Yet here we are again with a skeleton Bill, a poor impact assessment and no idea of what will be in the secondary legislation, but massive powers to be taken by the Secretary of State to attack trade unions as institutions and to attack their members. The Executive are treating our role as scrutineers of legislation with utter contempt.
I am proud to have been a trade unionist throughout my working life. I was not a full-time official, but I was president of NALGO 33 years ago and president of the TUC 23 years ago. I recognise an attack on trade unions when I see one. The Government are trying to capture the public’s understandable anxiety about the current wave of strikes in the public services to divert attention from the fact that they are doing absolutely nothing to sort them out. It is not just about money; it is about having to witness a decline in the service of which those members are proud.
I am looking forward to the maiden speech of the noble Baroness, Lady O’Neill of Bexley. We might not agree on everything, but I well remember her NALGO branch—it is now UNISON of course, as NALGO was its forerunner. It was run by dedicated trade unionists, who were and are also proud local government officers. They hate what is happening to the services that they are supposed to make work, with a 60% cut in their budget over the years. In the 12 years I have been here, the Government have made several attempts to separate trade unions from their members. “If we could only tame these crypto-Marxist full-time officers”—I cannot see my noble friend Lady O’Grady’s face at this moment, but I hope she is looking fierce—“then the trade union members would behave sensibly.” Anyone actually involved knows that it is often the other way around, with full-time officers acting as a brake on the unrealistic expectations of some members.
Who are these threats to the public’s safety? I received a phone call on Sunday from someone at Guy’s Hospital. I commented that it was a pity that she was working on a Sunday and she said they were making every effort to catch up on the backlog. She offered me an appointment for this coming Sunday. No jobsworths there: they were going out of their way to be helpful and catch up on the backlog. Even the Government-friendly newspapers do not seem to have much appetite for demonising the people on strike. I think they know a Government on their uppers when they see one.
On 11 January, I asked the Minister whether ACAS had been consulted about these proposals. I should declare that I chaired ACAS for seven years and I receive a pension from it. The Minister did not answer my question, so my noble friend Lady Blower reminded him. In reply the Minister said:
“As for consultation, the legislation was drawn up very quickly and in haste. We have not been able to do all the consultation we would like, but noble Lords will be reassured to know that for the actual implementation of the secondary regulations—which will contain most of the detail—we will of course carry out full consultations.”—[Official Report, 11/1/23; col. 1436.]
If this service-level agreement was in the 2019 manifesto, I am slightly surprised that it was “drawn up very quickly and in haste”. Perhaps something that was “drawn up very quickly and in haste” should be rewritten in its entirety or, better still, be put back in that anti- trade union filing cabinet.
I would certainly favour, as the noble Lord, Lord Monks, has just said, minimum service levels between the electorate and the Government. I suspect that the Government would be in breach before the ink was dry on the legislation as they continue to pursue
“private opulence and public squalor”.
That phrase was coined 65 years ago and is a good summary of the Government’s record.
I also asked the Minister last month to help me with a question I was asked by a friend who sits on a school board: how, if a headteacher decided to sack all the staff in their school, would any minimum service or safety level be fulfilled? Would the Government step in to provide the staff? The Minister’s reply was that the Government
“do not desire or wish to sack any public sector workers in any sectors. We are in the business of increasing the number of public sector workers, not sacking them.”—[Official Report, 11/1/23; col. 1435.]
If the Government are not going to force the sacking of a public sector worker, what are they going to do? How will they force them to work? Is this just to get hold of trade union reserves, set workers against unions, put fear and insecurity into individual public service workers, and attempt to provide a diversion from a failing, do-nothing Government? This Bill does nothing for good employment relations, nothing for our diminished public services, nothing for the standard of living of our public service workers, and it will not fill a single job vacancy. I am surprised that with so little time left before the next general election, the Government think they can waste precious parliamentary time on this Bill.
The Lord Bishop of St Edmundsbury and Ipswich
My Lords, I too look forward to the maiden speech of the noble Baroness, Lady O’Neill. There is only me standing in the way, so I will try to be brief.
At Second Reading in the other place, the Government said that the Bill’s purpose was
“to maintain a reasonable balance between the ability of workers to strike and the rights of the public, who work hard and expect the essential services that they pay for to be there when they need them.”—[Official Report, Commons, 16/1/23; col. 54.]
At first glance this might seem a straightforward aim. However, as noble Lords and those in the other place have already said, there is much more at stake here than initially meets the eye. I believe that the Bill in its current form creates more problems than those it perceives or seeks to solve.
There has been a terrible increase in industrial action in the past months. We all reflect on why this may be the case. There are serious and legitimate concerns held by those who decide to go on strike about their well-being, as well as the well-being of the services for which they work and that of wider society.
Our public services and those who keep them going are struggling. I am struck—reference has been made a couple of times to this—that it was not that long ago, during the pandemic, that we were lauding those who now feel abandoned. We have also heard reference made to reports of nurses left with no choice but to use food banks, and others who are leaving skilled jobs in public service roles to take up less skilled but better-paid jobs elsewhere.
I would caution against the characterisation of this argument as one of left versus right; I feel I am a bit in the crossfire here. This is about dignity of work and the common good, for the flourishing of the whole of society. For the good functioning of society, it is essential that all workers have a legitimate and peaceful means to seek redress against pay and conditions that leave them unable to make ends meet. Surely, this applies even more to those who provide essential services in the public sector, where discussions about fair remuneration can be dismissed, often by the language of limiting government expenditure. Of course, all negotiations should be conducted in good faith by both parties seeking mutual agreement. I am struck—I am sure we are all concerned—that, at the moment, each side accuses the other of intransigence. However, without full recourse to strike action as the last resort, far from it creating a reasonable balance between those involved, the balance of power seems to be tipped too far in one direction.
I turn to a couple of concerns on the specifics of the Bill, which are shared by my right reverend friend the Bishop of Manchester; we look forward to raising them further in other stages of the Bill. As has been observed by several noble Lords, the Bill is skeletal in its form, opening up multiple ambiguities. It would significantly broaden Secretary of State powers, which can be exercised on very short notice. The Secretary of State would be able to specify the levels of service required during strikes in public services via statutory instruments. As has been observed, the lack of definition for “levels of service” in the Bill gives the Secretary of State full reign on this in secondary legislation, seemingly with little opportunity for proper consultation.
There is also a significant and vague infringement on protections for unions and workers. Indeed, Part 1 of the Bill would add a requirement upon unions to take “reasonable steps” to ensure compliance by their members with a minimum service work notice and, where this is not done, enable employers to sue unions. Part 2 removes workers’ protection from unfair dismissal due to participation in a strike action contrary to a work notice. Such provisions would risk further straining an already overstretched workforce in our public services. Furthermore, as the Bill stands, it is unclear which workers could ultimately be subjected to its measures. I believe these proposals do more harm than good. I urge the Minister and His Majesty’s Government to reconsider this Bill.
Baroness O'Neill of Bexley (Con) (Maiden Speech)
My Lords, it is an absolute pleasure to be making my maiden speech. I start by saying a big thank you for the warm welcome I have received, especially from the staff in this place, who have been fantastic in helping newbies like myself navigate their way around.
It seems unreal that someone from a humble background such as mine is here. My parents came to London from Limerick in 1960 for a better life and better opportunities, as jobs were in short supply in Ireland. They were from fairly large families—Catholic families, before television was invented—but, despite that, they believed in public service and brought both my brother, David, and me up to help others and make a difference.
My mother was of a generation where women stood back. She was a very smart lady whose capabilities, integrity, compassion and strength shone through, as was her mother, my nana Hoban, who pretty much raised nine children while my grandfather worked in England and sent money home weekly. Theirs was a different world to the one we live in today, but they were both of the opinion that you worked for what you got, never had what you could not afford, aspired to make a difference and helped others. These are lessons that stand the test of time.
Those two formidable, capable women were my mentors and a third was my inspiration: the great Baroness Thatcher, elected as the first woman Prime Minister just before my 18th birthday. That meant girls of my generation seeing for the first time that they were not second-class citizens and could compete in a man’s world. So, the young girl from a council estate left school and went to work in insurance, moving on to investment banking—so very helpful in instilling fiscal responsibility, as well as making me comfortable dealing with large amounts of money. This was not the career path expected for a girl educated at a convent girls’ school in south-east London in the 1970s.
Alongside my career, my sense of public service inherited from my parents played out through politics, encouraged by Tony Salter—the husband of the noble Baroness, Lady Wheatcroft—and my noble friend Lord Moynihan. That early involvement in Lewisham politics resulted in my becoming a councillor in Bexley, then leader of the London Borough of Bexley—the career in the City being the casualty of wanting to do right by the residents of Bexley just after I became leader, as I wanted to make a difference.
We did make a difference. We regenerated estates that we were told would never be regenerated, changing the lives of those residents. We are known for our success with recycling: our biggest recycling project was our civic offices, which created regeneration and job opportunities as well as saving taxpayers’ revenue costs. We built schools, including special schools, so that our young people who needed extra support could get it locally. We opened new libraries when others were closing them. We saved the police station that Sadiq Khan wanted to close. We brought Waitrose to Sidcup and when our local general hospital was closed, we worked to turn it into a thriving health provision for local people including cancer care and soon, I hope a state-of-the-art diagnostic centre. Our lobbying should also mean one of the few banking hubs in the country coming to Welling.
Some of those campaigns obviously involved our much missed and beloved Member of Parliament for Old Bexley and Sidcup, the right honourable James Brokenshire, who many Members in this Chamber will have held in the same high esteem that I did. We have made a difference in Bexley, and did it without lots of money. That privilege was rewarded by the residents of Bexley endorsing our leadership for the fifth consecutive time last May, four of them under my leadership. Not only did they endorse our plan to make Bexley even better but they made us the flagship Conservative borough in London. When I started as leader in 2008, people asked “Where’s Bexley?”, but now they ask, “What’s Bexley doing?”
Many in this Chamber and in the other place will think that all London boroughs are the same, but I can tell your Lordships they are not. Neither is the funding equal, so in places such as Bexley we have to make every penny work hard. Local government can make such a difference to the lives of local people, which is why I was honoured to have my noble friends Lady Eaton and Lord Porter of Spalding as my sponsors. I have worked with them both over the years and know they share my passion for what local councils can achieve.
There are many other council ex-leaders in this place, including some London ex-leaders, such as my noble friend Lord True, the Leader of the House, as well as my noble friends Lord Udny-Lister and Lord Greenhalgh, and I am grateful for the guidance and support I have received from my mentor, my noble friend Lady Redfern.
I have seen many changes in my time as leader, and I like to think that being the longest-serving leader in London—a similarity I have with the late Baron Bexley, whom I understand was the longest-serving Chancellor—brought about a maturity that mattered when we were dealing with the pandemic. That really was a testing time, when we moved from getting food and medicine to vulnerable residents, to creating a network of community champions, distributing grants to local businesses as quickly and efficiently as possible, working with health colleagues to set up testing centres, and distributing vaccines—Bexley was the best-vaccinated borough in London. While that was all happening, we were thinking about what the post-pandemic world would be like, so that we could drive the change needed to protect jobs, drive our economy, address health needs, and deal with any post-pandemic issues.
I was also involved in the London-wide pandemic response, and cross-party council leaders worked shoulder to shoulder with multiple partners to show the leadership that London deserved. The value of local government was never more evident, and it shone a light on what happens, or does not, in City Hall nowadays. There must be a better way to spend taxpayers’ money in London, and they deserve better. I am a firm believer in devolution of decision-making to local councils that know their boroughs. If that were the case, boroughs would be bringing forward far better proposals to address air quality than the mayor’s fixation on doing so through taxation. How can it be right that you can pollute the air if you can afford to do so, while creating extreme anxiety for those who cannot afford to do so? But that is a matter for another day.
The Bill is about ensuring that key front-line services are delivered. While its provisions are welcome, I gently remind noble Lords of the vital services that local government provides and commissions, some of which would also benefit from the introduction of minimum standards during industrial action. I firmly believe that local government can and does make a massive difference to people’s lives—and that deserves to be recognised. It is not about just collecting bins and social care for children and older people; it can shape a place, ensure residents get the services they deserve, react to pandemics, and plan for the future.
Anyone who knows me knows that I am a straight speaker—I call it as it is—and I hope that, combined with the experience I have, that will contribute in some small way to the valuable work that noble Lords all do in this place. I have a lot to learn, but, with your help, I know I can do it, and I hope I will add some value to what your Lordships already do.
Lord Greenhalgh (Con)
My Lords, first, I declare that I am a vice-president of the Local Government Association, along with probably half the Chamber. I will reflect on that magnificently crafted maiden speech from my noble friend Lady O’Neill of Bexley—I do not think that it could have been anything else, could it? For me, she embodies the three Cs, two of which I share with her and one of which I do not. The first is Catholicism: we were both brought up in Roman Catholic households; I had only a little bit of Irish, she had a lot of Irish. That gives you a sense of public service and duty; she really exemplifies that, and it is a great C to embody.
The second is genuine conservatism. We are both children of the Thatcher years and share the belief in freedom within the rule of law, the belief in the hand up rather than the handout, and the belief in working hard and playing by the rules. Our whole lives have been shaped by the great lady—mine was as much as my noble friend’s, even though I am a man. The one C I do not share with her is the third: control. If she—Teresa—remembers, I was a council leader before her. It started with Ian Clement, but the other four victories were hers—I managed only two. She managed four successive victories; that makes five in total. She is right that we ignored Bexley—we thought it was somewhere out in Kent—but, little by little, she has established herself as a titan in local government. She did not just control Bexley, she also controlled Bromley: I remember asking her, “What about Bromley?”, and she said, “He does what I tell him”. She will be a hugely great addition to this House.
I feel that this is a tremendously uncontroversial Bill. As someone who is the son of a surgeon and who has been the first deputy mayor for policing and crime of this great capital city and a council leader, I believe that the Bill is not about pay and conditions but about service. It is about public service involving critical things where, if you do not turn up to work, people die. My father is a surgeon. He was nominated as the presidential surgeon for George Bush Sr. They flew a helicopter and landed on Charing Cross Hospital to practise. In the event of the President being shot, who was going to get him off the table? It would have been my father. What if he turned up and said, “I’m going to go on strike today” or, when someone aged 75 with a leaking aneurysm has two hours to live, the ambulance driver decides to go on strike or says, “It’s the middle of the night—I don’t think I’m going to go to work today because I’ve got to get up in the morning”? As a doctor, you take the Hippocratic oath to keep people alive, and if you are a police officer, you do not have the right to strike—the police have not had one since 1919; you take an oath to serve the public, maintain order and stop criminals.
Service is really important. There are also the fire and rescue services—I am a former Fire Minister. We do not want people to burn in buildings; we do not want Grenfell to happen again. We need firefighters who, in the event of such a tragedy, step up and turn up to work. In all conscience, you cannot have a situation where these critical services are able to strike and simply not turn up to work.
I am a loyal Back-Bencher: I support the Government 100% on absolutely everything. I would really like the Government and my noble friend the Minister not to stop with this but to consider extending this legislation to aviation ground services. Ground services ensure that passengers and cargo are ready to safely take off and land. They are critical.
I want to thank a Cross-Bencher—no, not someone party political but a former Commissioner of Police for the Metropolis, who wanted me to mention this, as he is not speaking in this debate: the noble Lord, Lord Hogan-Howe. He asked that we include in new Section 234B(3) not police officers who hold the office of constable but police staff who create and provide nationally critical functions such as the call-handling services and forensic investigations. Imagine if you call 999 and they go on strike. These people also provide critical services, and we should extend the Bill to cover them as well.
It is fair to say that my memory of 2022 is not of a winter of discontent but of a year of discontent, with the problems around aviation in the summer, nurses going on strike, ambulance drivers going on strike, and the FBU balloting to go on strike. That has drawn the Bill, which is the appropriate response.
I will just pick up a couple of points in previous speeches. The noble Baroness, Lady O’Grady, is entirely wrong to think that we should get Ministers to sort this problem out. Ministers are not employers. In the same way as with local government, for the leader suddenly to become an employer and undermine their senior officers is entirely the wrong thing to do. You do not create parallel management structures.
I disagree with the noble Lord, Lord Allan, that we have to embody a spirit of volunteerism. These are critical services. If we do not have a minimum service level, people can die—it is a simple as that. This is entirely essential stuff.
I am not a great lawyer; in fact, I remember my time studying law as one of abject failure. Therefore, when I listen to the noble and learned Lord, Lord Judge, I strain my ears to try to pick up everything that he says. Basically, he was saying, “This is not the right way to do this; this is secondary legislation.” For me—I know there are some Latin scholars out there—it is finis justificat modo: the end justifies the means. We can achieve this good by doing it this way, which is why the Government are entirely right to do this.
I have spoken for only four of the eight minutes, so I can relax a bit because I have a lot more to say. I ask the Government and my noble friend the Minister to invoke the spirit of the Gipper, Ronald Reagan. Does my noble friend remember what Ronald Reagan did over 40 years ago when the air traffic controllers went on strike—all 11,359 of them? They ignored his presidential order to return to work so he fired the lot of them, and he made sure they could never work again as federal employees. I ask the Government to invoke the spirit of the Gipper, because he was entirely right. My message to the Government, as a loyal Back-Bencher, is to be bold and brave—no compromise: it will save lives.
Lord Hain (Lab)
I am not quite sure how to follow that, my Lords, but I do so by welcoming the noble Baroness, Lady O’Neill, to this Chamber and our debates and thank her for a crash course in Bexleyism, which has educated me considerably.
Before being elected to Parliament in 1991, I spent 14 years as a national research officer serving postal and telecommunication workers, and I am proud to have been a trade union member for over four decades to help achieve fairness at work.
In September 2020, Chancellor Rishi Sunak was happy to be photographed on the steps of No. 11 Downing Street with two smiling figures. They were the then TUC general-secretary Frances O’Grady—now my noble friend Lady O’Grady, who spoke so powerfully earlier—and the then CBI director-general, Dame Carolyn Fairbairn. All three were marking their support for a winter economic plan that included an extension to the furlough scheme. They demonstrated and symbolised what progress can be made when unions, employers and government look for a common cause and common ground in a crisis.
Sadly, the good will that was on display from the Government that day has been missing ever since and is nowhere to be found in this minimum service levels Bill. Instead, Tory Ministers have adopted entrenched positions and inflammatory language, denying a fair deal to public service workers and seeking to provoke key workers into action that might lose them public support. Yet nurses, ambulance drivers, doctors and other health workers, firefighters, rail workers—yes, rail workers—education workers, Royal Mail workers and border officials all enjoy public backing, because they all want the same thing we do: a negotiated settlement that delivers a fair deal, a deal that begins to undo the real-terms pay cuts and the damage done to Britain’s public services by over a decade of savage Tory austerity, worsened by soaring costs of living.
The Bill seeks to discriminate against key workers by singling them out: paying them poorly, then threatening to sack them unfairly, with no compensation if they dare to go on strike or refuse to cross picket lines. It would, in effect, outlaw the right to strike, as the Taff Vale case did for five years from 1901, but it would not stop people standing up for fairness at work.
The Bill would prolong disputes, demoralise staff and frustrate the public. People forced to work against their will would quickly turn into quiet quitters, who do what they are paid for and no more. Just look at the impact on our railways when train drivers refuse to be forced to work on their normal rest days and decline to work overtime. Formal set-piece strike action would give way to informal guerrilla tactics, with unpredictable absences and unexpected gaps in coverage as demoralised staff stay home instead of struggling in to work when they feel below par or when they sense the onset of back pain. Some 17 million people in Britain suffer from a chronic health condition. The scope for quiet civil resistance to such punitive legislation is massive.
Where could the Government’s intransigence lead? Might they seek to press-gang the millions of economically inactive people of normal working age, such as the 2.5 million people aged 16 to 64 who last summer were out of the labour force due to long-term sickness? Any minute now, I expect to hear Ministers revive the language from the David Cameron days of workers versus shirkers and Liz Truss’s shameless dismissal of Britain’s workers as
“the worst idlers in the world.”
The Tories always end up attacking those they regard as the undeserving poor. This Bill is just their latest attempt at such punitive, arrogant behaviour towards essential workers they were lauding and clapping during Covid for keeping Britain going.
Ministers are trying to portray union representatives, as Margaret Thatcher did, as the “enemy within”. The truth is that workplace injustice remains rife today, and tackling it is what trade unions are for. The day- to-day experience of trade union officers is of taking the heat out of difficult situations, calming matters down, resolving disputes. They are peacemakers, not troublemakers. In practice, their key role is to help solve problems at work, not to cause them. The Government should be helping them fulfil that role, not making life difficult for everyone by their belligerent attitude.
There was a time when Tory Ministers would insist that public sector pay should be set at levels needed to recruit, retain and motivate the public sector workforce. That left ample scope for negotiation between employers and unions, and for the pay review bodies to do their job without being gagged by their sponsoring ministries or confined to quarters by the Treasury, as has so transparently been the case over current disputes.
Instead, today health staff are finding that they cannot afford to work for the NHS. Last year saw NHS workers quitting for better-paid jobs elsewhere at twice the rate they did at the start of 2020. More than 130,000 unfilled posts, due in part to NHS pay that has failed to keep up with the rising cost of living, have led to unacceptably long waiting lists and massive treatment blockages for patients. The number of workers seeking help from Trussell Trust food banks for the first time has increased by 40% in recent months, and half the NHS Trusts in England have food banks. Surely that is unacceptable.
Every day the Tories delay reaching negotiated settlements only adds to the inevitable cost for taxpayers and loses the Government more of the good will on which our public services have come to rely. The way forward has been shown by the devolved Governments in Wales and Scotland: negotiate in good faith, try—you cannot always succeed—to find a compromise, show respect, and try to get everyone back to work, however difficult that proves to be after 12 years of huge Tory cuts in devolved government budgets.
This Bill will not even keep services going, as the public are told. Instead, the real motivation is to enable Tory Ministers to dog-whistle to the base instincts of their right-wing supporters, finger-pointing and scapegoating, instead of treating with respect the workers who save our lives, teach our children, deliver our parcels, organise our trains and protect our borders. It is utterly shameful, and I am delighted that my party will repeal it.
Baroness Twycross (Lab)
My Lords, I declare an interest as London’s Deputy Mayor for Fire and Resilience and a member of the National Joint Council for Local Authority Fire and Rescue Services—a body which, as the Minister will be aware, is responsible for national collective bargaining in the fire sector. I, too, congratulate the noble Baroness, Lady O’Neill, on her maiden speech. Having spent many hours in meetings with her and the Mayor of London, Sadiq Khan, during the height of the Covid pandemic as part of our cross-party approach to the pandemic in London, I am confident she will be collegiate where appropriate and make a valuable contribution to the work of this House. I share her Irish roots and, like her, I was inspired to be political by the late Baroness Thatcher, but not because I liked what she stood for.
My position on the Bill reflects that of many of the contributions to the debate from this side and other parts of the House. This is unnecessary legislation. It is an attack on key workers and undermines the fundamental right of workers to withdraw their labour and strike. The Bill will also not work in practice and has many flaws, as many noble Lords have already highlighted. It has been introduced by a Government who want to tell public sector workers, in particular, that they are duty-bound not to strike, irrespective of how they are treated and what they are paid; a Government who want to tell people they previously hailed as heroes that their so-called vocation means that they should take what they are given, rather than what they deserve; a Government who acknowledge it would have been cheaper to resolve the rail strikes but have failed to do so; and a Government who appear to believe that threats of dismissal will be more effective than a grown-up discussion.
The only way to resolve disputes with our key workers is to work with them, not against them. The only way to resolve disputes is negotiation, not legislation. One aspect of this legislation that I find most offensive is the apparent underlying belief on the part of government that trade unions use industrial action and the threat of industrial action lightly.
It is time the Government accepted that the current wave of strikes is driven by desperation and frustration on the part of key workers—our nurses, train drivers and teachers, who keep our country running—not by some sinister motive. This is not the public being inconvenienced, as the Minister stated. This is large swathes of the public exercising their right to strike across many parts of the public sector. It is entirely because of a failure of government to address this desperation through negotiation that we are seeing the current high level of industrial disputes: the right to strike is not the problem.
In the remainder of my time I would like to focus on the rights of firefighters, who, as noble Lords will be aware, are being balloted by the Fire Brigades Union on an improved pay offer from the employers, but who voted decisively and understandably to take strike action if an improved pay offer was not received. The FBU does not, despite the government rhetoric around unions, take strike action lightly. Firefighters, as one told me this morning, join the fire service to protect the public. This is what they want to do, and what they do daily; they do not want to go on strike. There has not been a national fire strike over pay since 2003.
Fire and rescue, along with local government, is an area of the public sector in which negotiations are not held directly with government but involve national collective bargaining with employers’ representatives. The current dispute is in the context of a real-terms cut in firefighters’ pay since 2010 of 12%. Had we not had over a decade of government austerity and government-imposed pay restraint, firefighters might be paid around £4,000 more. The current dispute is in the context of the union being asked by firefighters for referrals to food banks.
I will leave others to speak about the rights of those working in other sectors, but it is just over a year since firefighters were a critical part of our national response to Covid, taking on roles that supported our NHS and ambulance services, with the support and backing of the unions. They do not deserve to have their right to strike removed, and it should not be removed.
In London we have worked hard to maintain good relationships with firefighters and their representative bodies. In addition, the Mayor of London identified additional funding to ensure firefighters could be offered a decent pay rise, albeit one that does not match the inflation caused by the Government’s current cost-of-living crisis. I do not want to prejudice the outcome of the firefighters’ ballot, but I am proud to have worked with Labour colleagues to push an improved offer to fire- fighters, rather than dismiss their pay claim as unreasonable, as the Government appear to with so many public sector workers.
I would also like to address some of the government narrative about strikes, particularly the suggestion that our trade union legislation is much more liberal than other European countries’, and which this Government are using repeatedly to support their arguments for the minimum service level legislation this Bill seeks to introduce.
First, the notion that our legislation is liberal and needs strengthening is frankly laughable, given the existing high bar set for strike action. Secondly, as has already been highlighted in this debate, workers in Europe, including firefighters, generally work in an industrial relations climate with more collective bargaining in negotiations than in the UK. In Germany, France, Italy and Spain, the right to strike is guaranteed under their constitutions.
In Italy, minimum service arrangements are set out in collective agreements between unions and employers. In the UK, fire authorities already have a legal duty to plan for business continuity to ensure the public have a minimum level of fire provision in the event of industrial action. On top of this, the FBU has already negotiated a major incident agreement with fire employers in the event of forthcoming strike action, as the union has always done. This is publicly available, so Ministers should be aware of this.
I cannot emphasise sufficiently that this legislation is unnecessary and erodes the fundamental rights of workers. As recently as when the noble Lord, Lord Greenhalgh, was Fire Minister, the Government also appeared to be of the view that it was not necessary to restrict firefighters’ right to strike, as that was not included in his proposals for major fire reform. Good industrial relations, dialogue with unions and negotiation would be a much more constructive way forward than unreasonable legislation and using inflammatory language in an attempt to justify it. Like others, I urge the Government to reconsider this regressive Bill, but also like others, I have very little hope that Ministers will do so.
Baroness Randerson (LD)
My Lords, I want to start by congratulating the noble Baroness on her maiden speech. As a girl brought up in south-west London, I rarely ventured to the wilds of south-east London, and I cannot recall visiting Bexley, so I am grateful to learn so much about it today.
In my previous career as a teacher and lecturer, I was always a trade union member and, indeed, rose to the heights of chair of my branch, but I am far from believing that trade unions are always right. However, I do believe that this is a silly, vindictive and totally counterproductive Bill. Many others here are far better qualified to talk about the basic rights involved in trade union membership, so I will concentrate on two of the details of this Bill—first, the veritable shopping list of occupations it covers, which seems to have no underlying logic or rationale.
What unites fire services, health services, education services and transport services, and what do the Government even mean by those terms? The vast majority of fire, health and education is government-funded and delivered by arm’s-length, government-run bodies. In contrast, transport services are run very largely by private sector companies within a much lighter-touch set of regulations. I am surprised by the vagueness of the terms used, because the Government have had months to tighten up their definitions since they first started threatening this Bill.
There is another fundamental difference. If your house is on fire, you need the fire brigade immediately. A patient suffering a heart attack needs to see a doctor immediately. A child of school age needs to be taught by a qualified teacher. In all those cases, the professional skills concerned cannot be substituted in anything but the most fleeting manner. But if there are no train drivers available, it is usually possible to take the bus and call on the skills of a bus driver instead. Take the car or take a taxi. If you are a long distance away, take a plane. I cannot understand the inclusion of transport on that sector list.
What is meant by education? Do the Government mean schools, covering just the years of compulsory education? If so, why not say so; or does this cover higher education as well? Here, I must declare an interest as chancellor of Cardiff University. Teacher strikes raise issues of child safety and parental inconvenience, affecting a cohort of children less capable of directing their own learning, whereas university students are adults and, in these post-Covid days of digital learning, have alternative resources.
Transport is a cauldron of choice. The Tory manifesto promised this legislation only in relation to the railways, so why has it been broadened? Do the Government intend to include the 600-plus bus companies that operate in Britain, or ferry services, or aviation? Far more people travel by bus than by train and would be inconvenienced by bus strikes. The three services I mentioned are actually much more irreplaceable than the railways. If the trains are on strike, go by bus instead. I can vouch for the excellent long-distance bus services I have taken recently. Or is this still really just a Bill designed to annoy Mick Lynch? Does the term “transport” also refer to freight, which is arguably much more fundamental to our economy than passenger travel?
The second issue is on the implications of minimum service level agreements. On the last rail strike day, I went to Cardiff for a funeral. It turned out to be straightforward: there were hourly trains to Bristol, with a change to a Cardiff train there. The timetable was published in advance, trains ran to time, refreshments were available, tickets were checked and announcements were accurate. That was a minimum service level agreement and it did not need government strong-arm tactics to create it. The leadership within the rail industry has recently made clear its sense of relief that the new Secretary of State is prepared to avoid the angry rhetoric and antics of his predecessor, which made negotiations so difficult.
I am also concerned about the implications of specifying, maybe even by name, those obliged to work to provide minimum levels of service. Railways are complex jigsaws: the Government talk as if all you need are the drivers but if the cleaners go on strike, all the drivers in the world will not enable you to run the railways. Once you start naming individuals—as you would have to in the case of signalling, for example—you are in a very sensitive position regarding the safety and security of the workforce.
We have a Government who are struggling to stimulate a failing post-Covid and post-Brexit economy. A persistent problem across that economy is labour shortages, which are particularly acute in higher-skilled occupations like these. Therefore, is it sensible to threaten to sack the workers you do have if they go on strike? Is it sensible to discourage new recruits by flagging this decline in employment terms and conditions? Of course it is not.
Finally, this is another example of the Government simply ignoring the impact of their legislation on devolution. The Welsh Government were not consulted prior to a government press release on 5 January, and their requests for information were met with just a restatement of publicly available information. The Secretary of State first wrote to the First Minister in Wales on 10 January, after the Bill was introduced into the other place. No effort was missed to put the devolved Administrations in their place. The Bill allows government Ministers to set minimum service levels for a range of devolved public services. The Welsh Government’s LCM recommends refusal of the devolved powers. The Bill adopts a policy position in sharp contrast to the social partnership approach used in Wales. For example, it could mean the Secretary of State for Health—who is essentially a Health Minister for England, as we all realised during the pandemic—interfering in negotiations on wages in Wales and other devolved issues. This has a clear potential to poison relationships, and it is the patients who will suffer in the end.
This is a macho Tory signal that is counterproductive. Ordinary people will not like to be demonised by the way in which the Government are treating people from these professions.
Baroness Noakes (Con)
My Lords, this is a modest Bill to ensure that people in our country are given a level of protection against extreme strike action in important public services, and I strongly support it. There has been a lot of misrepresentation about the Bill, notably in the debates in the other place. The right honourable Angela Rayner was wrong to say that it is
“a vindictive assault on the basic freedoms of British working people”.—[Official Report, Commons, 16/1/23; col. 66.]
The Bill does not extend the prohibition on strikes beyond the police and Armed Forces, but it is clearly the case that further prohibitions would be perfectly permissible. Prohibitions are much more extensive in other jurisdictions: public sector strikes are illegal in nearly four-fifths of states in the United States of America, and several EU states ban more strikes than we do. The Bill does not go there; it merely provides the means to set minimum service levels in just six categories of services that most people would regard as essential. There are many other services that people would regard as essential: my noble friend Lady O’Neill of Bexley, who is not in her place, mentioned local authority services in her excellent maiden speech and there are others. The Bill does not go that far.
The Bill is about a balance of rights: there is the right to strike, within the legal framework set for strikes, but this is not an absolute right. As with many other rights that are protected in our society, it needs to be balanced against the rights of others—notably, those whose lives are impacted by strikes, even though they are not a direct party to whatever dispute has caused them. The International Labour Organization allows minimum service levels to be set for both essential services and the broader category of public services of fundamental importance. The ILO hence recognises the need to balance rights.
Citizens have a right to a minimum level of transport services so that they may travel to work or for other important purposes, such as health treatment. All school- children, especially the most vulnerable, have a right to education. We all have a right to a level of healthcare and emergency services, and that goes beyond the minimalist life-and-limb cover. These are the sorts of rights that have to be weighed in the balance. Strikers may well want to maximise the impact of their strike action, but that will inevitably have an adverse impact on the lives of ordinary citizens. Citizens pay taxes which fund public services, and their rights to those services must be taken into account.
I regret the need for an Act of Parliament to govern the balance of rights, but it is absolutely clear that we need the Bill. On train strike days, sometimes 20% of train services have been available, but they were generally in the wrong place and at the wrong time for many working people. Striking ambulance workers agreed to minimum service levels, but this was done via an arcane derogation process at local level and resulted in a postcode lottery for gravely sick people. Teachers were not obliged to notify their head teacher whether they would be at work and very many did not do so, which made it impossible to plan for a basic level of education to be provided to the children who needed it most. It is the actions of the unions and their members in the current strikes that have led directly to the need for the Bill, and the latest sabre-rattling from the junior doctors merely underlines that need.
I strongly support the Bill, but I am not uncritical of the way that the Government are seeking to get it through Parliament. Parliament should not be expected to pass laws without an understanding of the scale and scope of the impact that they will have. Some very bad habits in relation to impact assessments emerged during the Covid pandemic, largely in, though not limited to, the Department of Health and Social Care. We must not tolerate a cavalier approach to impact assessments for primary or secondary legislation. An impact assessment for the Bill was passed to the Regulatory Policy Committee earlier this month, but that was after the Bill had completed all its stages in the other place. It should have been available before the Second Reading there.
This morning, the Regulatory Policy Committee published its opinion. The impact assessment is red-rated as not fit for purpose and the cost-benefit analysis is weak. I have not been able to read the impact assessment because the hyperlink on GOV.UK was not working this morning. I have just one question for my noble friend the Minister on this: will the Government update their impact assessment to meet the criticisms of the Regulatory Policy Committee before the Bill goes into Committee?
Your Lordships’ House is at its best when it reflects what is important to the people of this country. A recent YouGov survey found that two-thirds of those expressing a view supported minimum service levels, with only one-third against. Let us approach scrutinising the Bill with that in mind.
Lord Prentis of Leeds (Lab)
My Lords, I have to make two declarations of interest before I start. First, for over 20 years, until 2021, I was general secretary of UNISON, the public service union. Secondly, I currently serve as president of PSI, the recognised global body representing public service unions across our world.
Some may say that the proposals in the Bill are vindictive, malicious and retaliation at its best, and they may be right, but I have a far more simple view. In their haste to be seen to be doing something—anything—the Government have put forward a rushed Bill which is deficient to its core; a Bill which has the potential to wreck the social-partnership working that has been the bedrock of the National Health Service for almost a century; and a Bill which is described as having Henry VIII powers on supercharge.
What we have before us is a Bill which has been portrayed as merely bringing us in line with the norms of other European countries. Nothing could be further from reality. The UK already has the most draconian trade union laws in the democratic world. We are an outlier, not a norm.
Instead, what we really have before us is a skeleton Bill, and one which has had little or no scrutiny. This does matter. Just six weeks ago, I had the honour of making my maiden speech during the debate on the Delegated Powers Committee report, Democracy Denied. That report concluded:
“The way our laws are made can have a profound effect upon the lives of millions of citizens—granting rights, imposing obligations, involving enforcement measures”.
The House has before it a Bill that could do just that—a Bill which will curtail the civil liberties of workers and weaken protection from unfair dismissal, and a Bill which gives the Secretary of State unfettered power to amend, repeal or revoke. Parliamentary process is so important. It does matter. Ministers avoiding parliamentary scrutiny call into question trust and confidence in the whole institution. It does matter, because skeleton legislation could lead to government by diktat—something that noble Lords of all persuasions have set out their stall against.
I wish to focus on one of those services named in the Bill: the National Health Service. The NHS is crying out for long-term solutions on funding and workforce planning. It is dependent on the good will of its dedicated workforce, but the workforce is now demoralised and exhausted. It is a workforce that has witnessed too many of its patients dying—too many of them their colleagues and friends. It is a workforce now trying to do the impossible and cover for 140,000 job vacancies. To cap it all, it is now facing legislation to curb its rights. The Bill will do nothing for waiting times, it will not tackle chronic staff shortages or assist recruitment and retention, and nor will it tackle the current pay dispute. Instead, it will attack the very people on whose work and good will our NHS depends. It will erode the very foundation of our social partnership arrangements—arrangements that have served us well
What has happened between last November and now? Only last November we had a government memorandum praising the NHS and fire and rescue services, stating that
“important factors exist to mitigate the impacts of industrial action in those sectors”.
Now, weeks later, the very same Government disparage the life and limb cover arrangements made by ambulance workers. We are told that those very same ambulance workers
“have refused to provide a national safety net”.—[Official Report, Commons, 16/1/23; col. 55.]
It is mystifying.
In England, there is no one national ambulance service employer; there are separate ambulance trusts, and trade unions sensibly reach agreements directly with the trust employer. Those agreements reflect local circumstance, geography, demographics and local provision, from Penzance and Peckham to Preston. They deal with anticipated call volumes, the spread of job groups, rapid mechanisms to bring in staff when needed, and constant contact between management and government. Every ambulance and every worker stands ready to deal with an emergency. Now, all those long-standing, robust, jointly agreed arrangements are to be set aside in a frantic attempt to justify this Bill.
The Bill is seriously deficient in so many respects. Misleading statements have been made in an attempt to justify it. It has been rushed through Parliament with undue haste, and it gives unfettered powers to Ministers—a process long criticised by noble Lords. The Bill drives wedges. It is divisive, it is detrimental and it does nothing to resolve the serious crises which our country and our public services are going through. I really question whether the Bill is about life and limb or simply a clumsy attempt to render industrial action ineffective and maybe break a strike—an attempt which may prove to be in contravention of our international obligations as a democratic society.
The report of the RPC is damning. It states that the Bill is not fit for purpose and that the Government have not backed up their assumptions with evidence or considered the likely effects on SMEs. The Government have not assessed how the Bill could make strikes worse; they make assumptions without proper evidence. It could not be any worse. Perhaps it is time for the Government to reconsider their position on the Bill.
Baroness Whitaker (Lab)
My Lords, I have two points to make about this disturbing Bill. The first is as a lifetime member of the First Division Association. We did not often go on strike, not being at the sharp end of working conditions, and the Government were generally well-disposed to the negotiations of our excellent general secretary, my noble friend Lady Symons. However, members of a civil service union will now strike. That signifies serious malfunctioning in their working lives, as my noble friends, who have a range of direct experience of this over many sectors, have elaborated. For the public services to pay the price of the Truss Government’s miscalculation and subsequent inflation, on top of the long-standing wage squeeze, is manifestly unjust. No such constraint is applied to the private sector.
I echo the point powerfully made by my noble friend Lady O’Grady that the defence of unfair dismissal is also quite unjustly curtailed. If I understand paragraph 8 of the Schedule correctly, it looks as if employees can be sacked if they are not covered by a work notice or if their involvement in a strike is considered not to be compliant with one. Will the Minister please clarify this? I remember from my days as a member of employment tribunals that it was already difficult to prove unfair dismissal in quite a few instances.
Secondly, what I find alarming about the Bill is its whole premise that the Executive can dispense with our structure of democracy. My noble friend Lady Donaghy, many other noble Lords on all sides and two highly authoritative committee reports have focused on this, so I will very briefly add my voice.
In principle, Governments have manifestos; they are voted in with a majority and they have a mandate. But they do not thereby have a right to deal Parliament out of the process of implementing that mandate. The Bill erodes the role of the legislature by putting crucial detail into secondary legislation, which gets scant scrutiny and no scope for amendment. That weakens the essential arm of democracy—it is Parliament which decides what the law shall be, in our rule of law. In our system, laws are not intended to be made through skeleton Bills, wide delegated powers or untrammelled Executive fiat, even over laws not actually made yet, as the noble and learned Lord, Lord Judge, pointed out. The Bill abounds in just such provisions.
The instances of Clause 3 and Clause 2 in the Schedule mean that neither Parliament nor the public will be able fully to grasp what the law will actually mean. What, for instance, is a minimum level of service? How much of the education sector is covered? School caretakers? Ofsted? In effect, if all these clauses stand, Parliament will have been stripped of the capacity fully to scrutinise how people will in fact be affected by the law. The result is that Parliament would lose the capacity to reflect the interests of the electorate properly. It is not surprising that impact assessments have been slow in coming, because there is so little concrete information for the analysts to work on.
We did not subscribe to a rule of law made by the Executive. That carries the elective dictatorship—already a problem, as noted by a distinguished Conservative Lord Chancellor—a step too far. It fundamentally undermines the accountability of the Government to Parliament.
Finally, our Parliament has weathered many blows over the centuries of its evolution. This is one which needs to be comprehensively dealt with. This Bill is not the right way to use law and it is very far from the right way to tackle workplace protest against intolerable conditions. To remove Parliament from the process of law-making is a dangerous assault on our democracy. “Taking back control” rings hollow indeed.
Baroness Jones of Moulsecoomb (GP)
My Lords, I recently asked on Twitter: “What do you call a corrupt, far-right Government that bans strikes, bans protests that are too noisy, suppresses the right to vote, gives police spies legal immunity, takes the power to make or reject laws away from Parliament and hands it to Ministers?” I had quite a few replies, most said “fascism”, which was fair enough, but there was one response that said “scared”. This is a Government of the rich who are making suitcases full of money while avoiding paying their taxes and I think they are scared. No one but a terrified Government would keep bringing these terrible laws to your Lordships’ House.
The Government are scared that the people on PAYE suffering from inflation, high interest rates and 13 years of Tory austerity are going to demand their money back—the money that was stolen with the PPE fast track and numerous other government scams that have put money in the pockets of their friends while fleecing the taxpayer.
Many of those on strike in the last few months have not had a proper pay rise for the last decade. Instead of earning respect for years of being underpaid for the work they do and carry on doing, they are lectured on the need for further restraint by the richest Prime Minister in this country’s history. Clapping does not pay the bills. We heard that after Covid and it is still true.
Instead of meetings and compromise, the workers are being hit with draconian laws. Ministers are being given huge powers that could see them ban strikes across six public services, potentially involving millions of workers. These are not minimal powers or targeted powers; they are the powers of a dictatorship, which can be interpreted by Ministers as widely as they choose.
There is no recognition, as we have heard, of the “life and limb” provisions that are already in place during strike action, which exempt certain categories of staff from strikes where there may otherwise be a direct danger to people. The Government do not recognise existing agreements because they, once again, wish to invent a problem that does not exist, in order to justify a right-wing policy that suppresses opposition. They have done it with voter ID and the clampdown on the right to protest. Of course, the Johnson Government ended a ban on employment agencies supplying workers to temporarily replace striking workers. That ban had been in force since 1976, but the Tories overturned it.
What happens when teachers and nurses do not get paid enough? We get the situation we have today. People give up on public service and move to the private sector instead. The number of children packed into school classrooms goes up and the results go down. The number of NHS staff vacancies gets longer and so do the waiting times. Those who can pay, go private. Money will buy smaller class sizes in private schools, just as money will buy a shortcut to healthcare. That is ultimately why many in this Government do not want to give a pay rise that matches inflation. Austerity is a political choice. If we taxed the rich, we could pay the deserving. The truth is that many in this Government want public services in a permanent state of collapse because it matches their privatisation agenda. These anti-strike laws are an attempt to stop public servants from protecting our public services.
I will be brief, because a lot of people have said a lot of incredibly valuable things—mostly on this side of the Chamber, obviously. I have two final things to say. First, this thing about minimum service levels—the noble Baroness, Lady Whitaker, asked about this—what does it mean? I wonder what it means, because this Government have not managed to hit a target ever since they were elected, so I cannot think how they are going to manage minimum service levels. Secondly, on the Minister’s opening—a fine opening, Minister—the public expect essential services to be there when they need them. Why do the Government not get round the table and negotiate? Why are they behaving like complete and utter oafs? I really hope that we can throw out this Bill and I am thrilled that Labour will repeal it as soon as it gets into power—that will not be too long now.
The Earl of Leicester (Con)
My Lords, I had hoped to follow the noble Lord, Lord Berkeley, but unfortunately his name was scratched from the list.
Why are the Government introducing this Bill? First, and most obviously, it was in my party’s 2019 election manifesto. Secondly, it is to ensure minimum service levels in key public sector areas of employment, to try to ensure that any clear danger to human life is averted, as far as it can be, by ensuring a basic service during strike action. Thirdly, they have been forced into this action now by the sheer level of strikes that occurred last year and continue to be planned for this year, which are adversely affecting the national economy and many people throughout the country, including working parents.
As my noble friend the Minister stated in his opening remarks, in December alone, 843,000 working days were lost due to labour disputes, the highest since November 2011. By comparison, the monthly average in 2019 was only 19,500 days. The Centre for Economics and Business Research forecast the direct cost of all these strikes and the indirect cost of worker absences due to rail strikes to be at least £1.7 billion over the eight-month period to January, or 0.1% of expected GDP over this period.
Cebr also states that unresolved industrial disputes are having an adverse impact on growth at a time when many forecasters expect—and in some cases, it would seem, want—the economy to be in recession. There is a clear and urgent need for this legislation. Recent strikes have demonstrated the disproportionate impact strikes can have on the public and have cost the economy at least £6 billion.
It is not only the effect of teachers going on strike without being required to inform the headteacher of whether they would be striking so that the head can plan for the care of the children coming into school, but the knock-on effect for two-parent working couples, as one has to elect to stay, often at a moment’s notice, to look after their children. The place of work that parent was due to be at then has its own employment issues and challenges to deal with. As for single-parent families, I need say no more.
On the face of it, some public sector pay is low. For example, basic pay for a newly qualified nurse would be £27,000 a year. With overtime, unsocial hours and London weighting, this could increase to £31,000, but the Government Actuary’s Department states that their total package amounts to £50,000. About a third of this is in their defined salary pension scheme, with the rest in other benefits. Given the choice, I am sure many public sector workers might like to take an enhanced salary with a commensurate reduction in their pension—but they are not being given that choice.
A close member of my family is a very committed nurse, having been in the NHS all her life. She has voted for strike action for the first time. When I asked her what her salary was, she was able to tell me. That was not the case when I asked what her total package or her pension was worth, or what percentage contribution her employer paid. For every £1 a nurse puts into his or her pension, a further £3 to £6 in benefits accrues from the employer, with a total pension contribution of 20.6%. Furthermore, their pension scheme allows them to activate it from the age of 55, allowing for a phased retirement.
I must make it clear that I do not begrudge nurses these benefits, because we all know that they work under great pressure, often in appalling conditions and, sadly, in some cases, with little leadership shown by their bosses. It is true that since 2010 they have seen their actual pay—that £27,000 or £31,000—fall in real terms. But if the cake was cut in a different way, as I have alluded to earlier, I am sure that many public sector workers would not be striking for these unattainable pay awards, which Labour itself has said are not sustainable. Increasing all public sector pay by 11% would cost £28 billion, equivalent to an extra £1,000 for every UK household, because of all the on-costs of the pension packages. The average wage for a teacher in 2021 was £42,000, but they were also benefiting from an employer pension contribution of nearly 24%. In my county, Norfolk County Council’s employer contribution was a staggering 37%.
While in recent years—it was not always thus—some private sector pay has been outstripping public sector pay, government regulations stipulate that a private sector employee must pay a 5% contribution to a defined contribution scheme, not a public sector defined salary pension scheme, and their employer must pay the balance of 3% to take it up to 8%. Some employers share the burden equally, with a 4% contribution. So, you can see a huge disparity in pension benefits that rarely gets aired in public debate. Any large pay awards north of the independent NHS Pay Review Body recommendations will, of course, make these already generous pensions even more unaffordable, as well as making the total package very attractive. Indeed, pension contributions being paid in by today’s workers and their employers are being paid straight out to already retired public sector workers.
I cannot see my arguments turning government policy around; we are where we are. Hence, I lend my support to the Government and to the Bill. In these circumstances, when so many days of work are being lost, with crises such as the Ukrainian war and the massive mountain of debt that has been built up by the country’s handling of Covid, we really must insist on minimum service levels being maintained and legislated for. That is why I support the Bill.
Viscount Stansgate (Lab)
My Lords, it is a pleasure to follow the noble Earl, although I disagree with him. I begin by congratulating the two maiden speakers, in a way, in this debate: the noble Baroness, Lady O’Neill of Bexley, and, if I can put it this way, my noble friend Lady O’Grady, who I believe was speaking from the Front Bench for the first time—and what a very good speech it was.
This Government are beginning to lose their way, and the Bill before us today proves it. In the face of today’s prolonged industrial action by many in our society, including the nurses, ambulance drivers and—by a margin of 98%, I read today—junior doctors, who not so long ago we stood on our doorsteps to cheer during the darkest days of the Covid pandemic, this Government have now been driven to introduce a Bill that will not solve any of the underlying problems.
No one is denying the strike action that is taking place or the number of days lost; the ONS tells us that it is the greatest number since 1990. However, the Government should use their existing powers to allow negotiations between employers and trade unions to succeed and create the conditions in which they can succeed, not bring in a Bill that takes up valuable parliamentary time and, in my view, offers no prospect that its passage would make any contribution to solving the problems caused, because significant sections of the public sector workforce in the UK have become worse off in recent years. That is a fact—that is what we call the cost of living crisis and why the Government themselves have recognised the need to take action and help with energy bills. The Government know that working people have become worse off. You can hardly blame those who have been driven to take strike action when many of them would have preferred not to.
The real arguments to be made in the current situation are about unfairness—of all kinds—and not about inventing a new law to attack both the rights of trade unions and the workplace rights of individuals. This is a good point at which to put on the record that I myself, like many Members on this side of the House and no doubt in various places around the Chamber as well, am a member of a trade union. I suppose I should also say, in the interests of transparency, that my son is a teacher whom I last met when he was on strike, walking outside this building.
I am no expert on the various public sector pay bodies. Fortunately, we now have Members in the House of Lords with the most enormous expertise from the trade union world, many of whom we have heard from today or will hear from later. This is a debate and not a history lesson—although if the noble Lord, Lord Dobbs, was in his place, I would say that I think the matchgirls’ strike was in 1888, not 1881—but the House knows of the struggles of the last 200 years for the establishment of trade unions and rights at work. Just because these rights have been hard won does not mean that they do not always need to be defended—because they do, and they certainly do now.
I want to give an example—I ask your Lordships to forgive me; coming late in the order, I find myself thinking that most people have made most of the points I want to make—of the individual right against unfair dismissal. As I understand it—and I am grateful to the Library for its briefing—trade unions are protected from liability for such acts by the Trade Union and Labour Relations (Consolidation) Act 1992, provided that the union complies with all other legal requirements such as those dealing with strike ballots and giving proper notice. This Bill would remove this protected status from trade unions for any strike they induced people to take part in where they failed to “take reasonable steps” to ensure that all workers identified and requested to work by a work notice complied with that notice. Moreover, the Bill would remove this protection
“for any employee who takes part in a strike contrary to a valid work notice. Any such employee will not be automatically regarded as unfairly dismissed under … the Employment Rights Act 1996 if the reason … for the dismissal is because they took part in the strike.”
In other words, the individual rights of workers are at stake in the Bill, as well as those of trade unions as a whole.
There are two other points I want to make. First, as others have said, this is yet another example of a skeleton Bill. At some point, somewhere, whether in this House or another place, someone is going to have to say that enough is enough, because otherwise the Executive will fatally undermine the legislature. In my hand I have a single sheet of paper, and that is the entire content of the Bill right there—others have made this point very well.
Noble Lords may remember we had a debate in the Chamber about a year ago, triggered by the noble Baroness, Lady Cavendish, on skeleton Bills. The House would be wise to remember what was said then. We have grown all too accustomed to skeleton Bills but that does not mean that we should be. Laws affect our lives and rights; they should not be made by bypassing the very institutions which are supposed to be a check on power. At the time, the noble Baroness, Lady Cavendish, gave her own explanation as to why she thought they were used. She said, in summary, that when you are in government, you are so anxious to get stuff done that if a Minister is told they can do it by way of statutory instrument rather than by primary legislation, of course that is going to be attractive to them. Very few people would react otherwise. Who would not be relieved to think that you could do it that way? I daresay there are former Ministers in the Chamber, on all sides of the House, who understand these sentiments.
In fairness, I also want to refer to the words of then Cabinet Office Minister—who is now the Lord Privy Seal and Leader of the House—in defence of the skeleton Bill approach. He said, over a year ago, that rigorous processes are in place within government to justify the use of proposed secondary legislation contained in Bills and that
“This process ensures that there is a steady flow of statutory instruments being laid before Parliament and therefore, I hope, facilitates better scrutiny.”—[Official Report, 6/1/2022; col. 791.]
It may be that the flow of statutory instruments has been steady but that does not mean to say that the amount of them has not been too great.
If I may, I will quote a Member of this House who is staring at me at this moment. When he was Lord Chief Justice, as I understand it, the noble and learned Lord, Lord Judge, said that if Whitehall gets into the habit of using Henry VIII clauses
“we are … in … danger of becoming indifferent to them”.
In summary, if the Government persist—as they do in this legislation—in using such Bills to push all the detail to later, ultimately Parliament will not really know what it is that we are being asked to approve, and that is dangerous for democracy. In view of the time, I will leave it there, but this is an area for scrutiny in Committee, if nothing else.
Lord Balfe (Con)
My Lords, I first draw attention to my interests as listed in the register.
This is an unnecessary Bill. As Conservative Home, the online daily Conservative newsletter, said last Sunday, it will achieve nothing and should be dropped. I have never before in this Chamber quoted Jacob Rees-Mogg, but he said in reference to this Bill in the Commons that
“skeleton Bills and Henry VIII clauses are bad parliamentary and constitutional practice.”—[Official Report, Commons, 30/1/23; col. 87.]
I ask my own side to reflect that, in a democracy, power changes, and to further reflect whether we would be happy if a Labour Government made extensive use of these fundamentally undemocratic instruments. I think we would not be. I think we would be getting up all the time and protesting about it.
To come back to the Bill, I remind noble Lords that the ILO general secretary and the United States Labor Secretary both deny backing it. They were quoted as being vaguely in favour. They are not—they are both against it. The TUC and the CBI regard it, to put it mildly, as unnecessary and likely to interfere with good industrial relations, not to build them.
I come now to my area. Within the aviation sector the Bill has been greeted with dismay. Noble Lords may remember that I am the honorary president of BALPA, the pilots’ union. The impact assessment for the transport strikes Bill, which was introduced as the initial legislation, said at paragraph 100 that the proposals could lead to greater use of action short of strike. Paragraph 101 says that the proposals could increase the frequency of disputes, meaning
“an increased number of strikes could ultimately result in more adverse impacts in the long term.”
Paragraph 103 says that it could increase operational costs for employers, with a particularly onerous burden on small operators. Finally, paragraph 106 says that it could have a
“negative impact on industrial relations, which could have detrimental impacts for all parties.”
My colleague the noble Baroness, Lady Randerson, pointed out the wide variety of what is meant by transport. What do we actually mean? We have aircraft, we have the Eurostar, we have trains, we have buses and we have school buses. There is no such thing as “transport” and this Bill is far too widely drawn. My contention is that aviation should be excluded altogether; by definition, no air service is ever guaranteed, as the captain of the aircraft must always be satisfied it will be concluded safely or otherwise they do not take off. This is a fundamental principle of aviation.
Are we saying that the Secretary of State, at least a week before a flight in question takes off, is going to assume the authority of the captain of the day and insist a flight is operated? Will they do so despite, first, the weather; secondly, the technical state of the aircraft; thirdly, without knowledge of whether sufficient crew have reported or will report for duty; and, finally, despite all the other things a pilot must consider? It has always been accepted that a pilot can personally say, “I am sorry, I just feel ill. I can’t take off”. That is an excuse. You do not send £300 million-worth of equipment and 300 passengers into the sky at the whim of a Minister. This is a highly technical operation, and, frankly, it has just not been thought through.
When faced with industrial action, airlines often decide on the day not to let aircraft take off because it puts all the aircraft in the wrong places, and trying to break a strike makes for a toxic environment, and an aircraft company does not want that.
Finally on this topic—and my noble friend Lord Greenhalgh mentioned it—we have been approached by Menzies, sellers of jelly babies, asking whether we could
“Probe the government as to whether they could include aviation ground services under the legislation.”
Is the Minister now going to get a list of which sweets can be sold by Menzies, present it with the list and say, “You must find someone to sell them”? What is next? Will Pret a Manger be covered? Will it have to produce the sandwiches?
I suggest to the Minister that it is time to go back to the drawing board. As we all know, it is an offence in English law to waste police time. This Bill is wasting Peers’ time. HMG are going to lose a number of votes on this and they are going to deserve it. When I first came to this House, the then Conservative Chief Whip told me that the difference between the Lords and the Commons was that in the Commons you won votes by numbers whereas in the Lords to win votes you had to win arguments. The fate of this Bill is going to prove her right.
We really are in desperate straits when we come up with a Bill such as this, which, frankly, is not thought through. It is not actually particularly a Conservative measure; it is more a panic measure. People are not pleading for this, and if the Government try to implement it they will soon find that public opinion has drifted away from them. This is a Bill which will never be implemented. I suggest that I am going to put down an amendment that the commencement date be after the next general election, so that we can put Labour on the spot to not implement it at all.
Baroness Blower (Lab)
My Lords, it is a genuine pleasure to follow the noble Lord, Lord Balfe, whom I have known for many years in various capacities. I believe that the Front Bench opposite would do well to listen to both his intricate technical knowledge and his general principles in relation to the Bill.
As many noble Lords have already said, this proposed legislation is anti-democratic, draconian, counter- productive and unnecessary. I shall not speak to each of those elements of the Bill but there is ample evidence in the briefing from the TUC for all of them. I do, however, wish to say a few words about the draconian nature of the proposals. They would be unacceptable at any time but, in the context of the longest pay squeeze for decades, in the middle of a cost of living crisis and with the failure to recruit enough workers to provide our vital public services, they are both draconian and ill conceived.
As my noble friend Lord Monks said, in the 2019 Queen’s Speech, the Government pledged to ensure
“that sanctions are not directed at individual workers”.
However, what we see in this skeleton Bill—I will not go there; everyone has discussed it already—is that, if a person specified in a work notice takes strike action, work notice notwithstanding, they will lose their protection from automatic unfair dismissal. This is not only unacceptable for the individual concerned; it also begs the question as to whether the strike might be deemed unlawful. The Library briefing suggests that the whole strike will be deemed illegal and the protection of all employees against automatic unfair dismissal would thereby be removed, meaning that all employees could therefore be sacked—a point made by my noble friend Lady O’Grady. Can the Minister say why the Government have changed their position from that stated in the 2019 Queen’s Speech?
Given the Government’s abject failure to recruit to the thousands of vacancies in health and education, what assessment have they made of the impact of these proposals on recruitment and retention in those aspects of the public sector? I remind the Minister that the Government missed their own targets for the recruitment of secondary school teachers by 41%; that 13% of the teachers who qualified in 2019 have already left the profession; and that one in eight maths lessons—our Prime Minister is a great fan of them—is being taught by a teacher who is not qualified in the subject. That is not the level of service that our young people should expect.
These are the issues to which this Government should turn their attention, rather than seeking to place further restrictions on the right of workers to strike in pursuit of legitimate demands. The proposals in the Bill, such as they are, are simply not compatible with international law. In saying that other jurisdictions have minimum service levels, the Government are completely silent on the different legislative frameworks that obtain. Sectoral collective bargaining is an approach that obtains in many European countries; we do not see it here in the UK.
Those who are engaged with the work of the International Labour Organization know that it has already raised concerns about existing UK labour law, which the Government have failed to address. I am pleased to quote Tonia Novitz, a professor of labour law at the University of Bristol:
“Far from bringing the UK into line with the standards and practices of other European states … the proposed minimum service legislation constitutes a further departure from established norms and treaty obligations.”
I am sure that the Minister disagrees. Can he say how the Government have addressed the prior outstanding recommendations from the ILO on the right to strike in the UK?
The TUC briefing makes it clear that local arrangements are put in place during industrial action. It is therefore unnecessary to grant such sweeping powers to a Secretary of State to determine minimum service levels. Let us consider the fire and rescue services, as my noble friend Lady Twycross did; bear in mind that the firefighter establishment has suffered a 20% cut since 2010. Since 2004, Ministers have told the public that there is no need for national standards, and that emergency response is a local matter so is nothing to do with them, yet free rein is now to be given to a Secretary of State to make determinations. As a union that takes public safety very seriously, the FBU signed a major incident agreement—noble Lords have heard about this already—with fire employees through the national joint council, covering the whole of the UK, on 23 December last year; some of your Lordships were probably on holiday by then.
As to earlier disputes, the FBU co-operated to deliver the level of cover sought by the employers. In previous periods of strike action, Ministers and chief fire officers have assured the public that communities are safe and measures are in place. Unless that was untrue and the public were misled, there can be no justification for replacing those agreed arrangements and that system with a draconian imposition. Good industrial relations and the avoidance of industrial action are possible through collective bargaining and what the FBU calls “cordial social dialogue”. Draconian diktats are counterproductive.
Perhaps the Minister could comment on the Regulatory Policy Committee’s report—it was referenced by my noble friend Lady O’Grady—which states that the impact assessment
“has not clearly established a counterfactual supported by evidence, outlining what is expected to occur in the absence of legislation being introduced. The Department describes, within the policy background section that voluntary action already occurs, yet later in the IA … the Department assumes a baseline service level of provision of zero. This is a conservative position to take, given that voluntary provision of service in sectors is uncertain.”
It would seem to follow, then, that this proposed legislation is indeed unnecessary and draconian. Its being introduced before any of the relevant consultation with sectors has been completed is simply not acceptable.
Lord Whitty (Lab)
My Lords, I will try not to repeat and cite every speaker with whom I have agreed but I congratulate the previous two speakers: my BALPA colleague, the noble Lord, Lord Balfe, who sits on the Conservative Benches these days but nevertheless understands that industrial relations cannot be conducted through draconian government decrees, as the Henry VIII powers in this Bill envisage; and my noble friend Lady Blower, who explained the difficulties with the Bill. I speak as the son of a former branch secretary of the NUT.
In a debate a few months ago, I asked the Minister whether the Government believe in the right to strike. He rather sheepishly proclaimed that they do. I think he should have added in the small print, “As long as they’re not effective”. In other words, the Government have the right to have draconian interventions—often at the last minute, as the powers in this skeletal Bill would allow—and lay down what service will be delivered and which workers will work. That is a recipe for disaster.
I was going to congratulate the Minister on two things: first, the shortness of this Bill, although others have pointed to the disadvantages of that; and, secondly, his sudden conversion to all things European in citing his apparent understanding of what goes on in Germany, Spain and elsewhere. I hope that he shows the same enthusiasm when we return to the retained European legislation Bill later in the week.
The reality is that the Bill exists because, as the noble Lord, Lord Balfe—I nearly called him “my noble friend”—said, this is a panic measure. We are in a period with a lot of strikes happening, for different reasons but at the same time. They appear to be cumulative and the Government are panicking. They want to be seen to be doing something, so they have come up with this Bill, which originated as part of a more balanced Bill of employment rights—that seems to have disappeared—then as part of a transport Bill, from which this provision has been greatly expanded. This is not the way to make legislation, or how the House of Lords should allow legislation to be made. A large part of the Bill should be rejected by this House, if not the whole of it.
I should have said that in addition to my declared interests, I am a veteran of the previous so-called winter of discontent. I was one of those crypto-Marxist officials with one of the unions involved at the time. I disagree with the noble Lord, Lord Dobbs, who is no longer in his place, on the history of that and the subsequent period. My recollection is somewhat different. Yes, the unions made a lot of mistakes in that period. For example, we did not include gravediggers in the areas which were to be immune from strike action. That lost us a lot of public support. However, by and large there was no threat to life or limb.
I see that my noble friend Lord Donoughue, who has experience from the other side, is no longer here but I say to your Lordships that the Callaghan Government stopped talking. I recollect, two or three days before Christmas, going with a bit of paper that was drawn up by myself and my friend Lord Gladwin, a future Member of this House, to give to the then Government. It set out possible terms which had been agreed with the general secretaries of the other unions concerned. That was rejected by the Callaghan Government. A month later, the strikes began. We obeyed notice of strikes even then, though it was not at that time compulsory in law. A month or so later, the Government had to settle with the unions on almost identical terms to those that we had presented two months earlier.
When Margaret Thatcher’s Tory Government took over, she learned some of those lessons. She is wrongly depicted in some ways as the equivalent of Ronald Reagan, as the noble Lord, Lord Greenhalgh, said. She did not negotiate herself, of course, but she did allow her officials to negotiate. There was continued industrial unrest in the early years of the Thatcher regime but she kept the door open. Agreements were reached, sometimes after strikes. I recall that she even agreed after the water strike that there would be compulsory arbitration through ACAS and that the Government would agree to its terms. We have none of that in this Bill—there is no ACAS involvement, as my noble friend Lady Donaghy said. There are better ways of operating. There are better ways of conducting industrial relations than threatening long-standing arrangements between employers and unions or imposing new ones when a strike is threatened.
I do not like to compare the Minister with his late Majesty Richard III, but at the beginning of the play that King says,
“Now is the winter of our discontent
Made glorious summer”.
It did not work out too well for him, and I am afraid that this Bill will not work out too well for the Minister either. There is an alternative and he should learn from history. The alternative is to sit down now and negotiate. For as long as the Government refuse to do that, we will have a winter of discontent.
Lord Patten (Con)
My Lords, it is always good to follow the noble Lord, Lord Whitty, particularly in a debate such as this, where he has such a long and detailed recall of history over many decades. I listened to him with respect; it is genuine respect rather than just saying that, even though I do not agree with him on a number of points. He used “repetition” in his introductory remarks, and I address the first of the four remarks that I wish to make to that.
First, purely by chance, I came across something which His Holiness the Pope said the other day. He was telling his priests not to bang on for too long, to limit what they say in their homilies—that is RC speak for sermons in the established Church—and generally to get on with it. I think that six minutes, which is what His Holiness said, is quite a long time. We are luxuriating in eight minutes tonight but repetitive arguments will dominate all the proceedings of this Bill, as they dominated all the proceedings of the public order legislation. There is nothing wrong with saying it again and again in the hope that it sinks in, but we must recognise that in the end, we must act.
I applaud what my honourable and right honourable friends are doing in this Bill. We have seen the same argument used again and again, over protests and demonstrations, before debates on the Public Order Bill came to their end. We are going to get the same things again about the right to strike in this debate. There will be more than a spot of déjà vu in this Chamber over the next few weeks and months because we are all struggling—the noble Lord, Lord Whitty, and I, and other noble Lords—to find a balance between what it is right to strike about and the needs for individual and publicly recognised, or sought after, levels of safety and protection. Getting that balance right is fiendishly difficult. We would be foolish to say that this or that is a solution. I would always keep lives and livelihoods first in mind, in a world where self-restraint is steadily being screened out, which concerns me a lot.
Secondly, does my noble friend the Minister think the current arrangements that ban certain occupations—essentially the Armed Forces, the police and some prison officers—from striking are adequate today, since they were first thought of in the 1960s? There have been so many challenges since, particularly the growth of global terrorism, which we did not know about 30 or 40 years ago, and the huge back and forth in the flowing global movement of people seeking safety. Why should they not seek a better life as well, in a time of easier if sometimes very dangerous travel that we all recognise? The situation is dramatically different from what it was in the 1960s.
It is not easy to be a prison officer and I thank them for what they do, but the time may be coming when no prison officers should strike at all. The same goes for the challenging and sometimes dangerous work done for us all by our border forces, not only at sea but at land borders such as ports and airports, screening out terrorists. There is a strong case for them not being able to strike either. I do not want to alarm the business managers on my side of the House—I would hate to do so—so I promise and pledge that I will not introduce egregious amendments during the passage of this Bill, which will be long and drawn-out enough. However, I hope that in return I get a serious answer from the Minister about these issues, which need to be discussed as time goes on.
Thirdly, the areas of public service covered by the Bill vary in their substance. I do not say, diminishingly, that one is more important than another, but surely there is a qualitative difference between the never clearly-defined NHS “life and limb” cover, which I have never seen a satisfactory definition of, and education. Of course, education is essential, but in a different way. Obviously, that is important to students for their future happiness, prospects and way of life. I noticed that the phrase “industrial action” came from the noble Lord, Lord Whitty, I think. We need to dump that expression because it does not cover adequately the huge range of things that we looked at in the Public Order Bill and are now looking at in this Bill. Also, “essential” needs to be defined.
It is rather poignant, but some decades back the Association of University Teachers—that long-buried union—demonstrated about some unclear provisions that they were worried about in their pensions. Believe it or not, outside Carriage Gates, there was a capped and gowned figure holding up a placard containing the persuasive legend, “Rectify the anomaly now”. If that is the best that could be done in advancing arguments, I do not think it was very persuasive—and it certainly was not very chantable by those demonstrators.
Fourthly and lastly, we cannot any longer fantasise that, as a last resort, our Armed Forces can always step in and cover all exigencies. We know that, in the 1960s, there were more than half a million people in the Armed Services—about 250,000 in the Army. On 15 December 2022, those numbers were down to about 145,000, of whom some 79,000 were in the Army. These good men and women have other, more pressing, tasks in an increasingly warlike and geographically challenged world to do on our behalf than direct the traffic.
I note that I have gone beyond the time laid down by His Holiness the Pope, but just short of the time set down by the business managers.
Strikes (Minimum Service Levels) Bill
Tuesday 21st February 2023
(1 year, 2 months ago)
Lords ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 30 January 2023 - (30 Jan 2023)
Lord Cashman (Lab)
My Lords, in my old profession this session was called the interval act—the act charged with getting the audience back from the bar, and it very often failed.
The Minister has known me a long time, so I will speak plainly. Before I do, I congratulate the noble Baroness, Lady O’Neill of Bexley, on her wonderful maiden speech; she is not in her place, but I have personally conveyed my thanks to her. I also congratulate my noble friend Lady O’Grady on her impressive opening statement from our Benches, and the noble and learned Lord, Lord Judge, who is also not in his place, on his legal demolition of this skeletal, and I believe unnecessary, Bill.
I suggest to the Minister that, if we want to ensure minimum service levels in vital industries, the easy way to achieve that is by giving the workforce the right terms and conditions—perhaps that is a little revolutionary.
A lot was said by the other side about people who withdraw their labour without a concern for others, and I want to make it abundantly clear that doctors, nurses, ambulance workers, support staff, teachers, firefighters, public service workers and any other workers —and, yes, transport workers—do not go on strike easily or lightly. They do not take their responsibilities as something to be casually cast aside without a thought, and to suggest otherwise is not only untrue but grossly offensive. In some instances, the industrial action we are seeing is the first such action ever taken, such as by the Royal College of Nursing, and now junior doctors, including registrars, have decided that they too will strike for 48 hours next month. These actions by a stressed workforce are evidence to me that the Government are trying to provide public services on the backs of those who are underpaid, overworked and unable to continue in this minefield of unprecedented work stress, mental health crises, and seriously underfunded and broken public services.
I also believe that the Bill is a stark admission that the Government have no intention of paying those in public service what they should be paid, or of negotiating or allowing other public sector employers to negotiate. It is a stark admission that they have every intention of using legislation and punitive sanctions to intimidate ordinary working people and their unions. I believe that this will result in more people quitting these vital services and professions, and, ultimately, it will force more public services into wider private ownership.
There are others who will speak, and who have spoken, with great wisdom on trade union legislation, industrial relations and the ILO. However, I speak in a personal capacity—as a trade union member of over 55 years, as a previous unpaid national officer and negotiator of British Actors’ Equity, and as someone who has worked on building sites, as a hospital cleaner and as a proud hospital porter. Most of all, I speak because I will not allow my silence to be mistaken for condoning this shabby and shoddy legislation. I speak up because I will not remain silent as I see the Government trying to keep this country’s public services afloat at the expense of the workforce, some of whom then have to queue in line at food banks to survive.
I look at what is happening and I ask myself what kind of country we have become. I ask myself: how can this happen in the sixth-largest economy in the world? If I am honest, I have to ask myself: do the Government believe that these measures will work? I do not believe that they do. I believe that the Government’s motivation is that it is politically advantageous for them, in that they hope that the public mood changes and will turn against the nurses, doctors, teachers, fire service, ambulance workers, transport workers, teachers, and ancillary and support staff, and will turn against the political parties who support them, such as my party, the Labour party. I find this deeply offensive: a Government hoping that the public will turn against the very people they implored us every week to stand on our doorsteps and applaud.
We applauded key workers across the vast range of public services who gave beyond what they needed to give to pull this country through a pandemic which has taken over 219,000 lives. Key workers kept our country going and gave us hope as the Government opened a VIP lane for PPE contracts for their friends. Contrast the treatment of those seeking PPE contracts with the treatment now being foisted, and soon to be forced by legislation, on key workers.
Once again, I ask myself: what kind of country have we really become? I have come to the sad and damning conclusion that there is something rotten in the state, and in the state of this Government, and it is embodied once again in a divisive and shabby piece of legislation.
Baroness Bryan of Partick (Lab)
My Lords, what an amazing speech to follow.
What can I say? The Bill totally misunderstands the relationship between trade unions and their members. For example, when it talks about a union’s role in enforcing work notices, it prohibits
“an act done by the union to induce a person to take part, or to continue to take part, in the strike”.
Trade unions do not call strikes; members call strikes. The party opposite thought that strikes could be prevented by having paper ballots, and then by requiring that ballots be sent to the member’s home address, but these pesky trade unionists do occasionally support strike ballots. It is beyond question that a strike can take place only if a significant percentage of members vote for it.
Some members of the Conservative Party cannot accept that trade unions are a legitimate part of civic society, with an established and well-respected role in representing their members in negotiations, ensuring health and safety, and improving levels of service and productivity. They are not the enemy; instead, we should be worried about those who attack civil liberties and workers’ rights, because they are the danger to the rights of the majority.
While sitting here earlier, I saw a message on my phone appealing for me to oppose the Bill—I think that they knew I would. It came from a friend who is a firefighter in Scotland. Last Friday, she and other firefighters were in Edinburgh for the funeral of the firefighter Barry Martin, an FBU member who died doing his job. He was not giving minimum service; he, as many workers do, was giving maximum service.
Trade union rights were won in struggle, not granted from above. The movement has a proud tradition of fighting for basic human dignity, including challenging child labour, fighting for the eight-hour day and for time off at weekends and holidays, for equal pay and much more. If the public had to choose between the Government and workers to set minimum standards for essential services, we can guess who they would trust to do what is in the best interests of service users—that includes railway workers—and it would not be this Government, who have allowed those very services to be driven into the ground.
The BMA has long called on the Government to ensure safe-staffing levels across the NHS, but to no avail. It is ironic that the Government are now focusing on minimum staffing levels as a reason to curtail strike action, when protecting the NHS goes to the very heart of why those healthcare workers are striking in the first place. Can the Minister understand that the Bill will set back industrial relations in public services and beyond?
My second concern about the Bill is its impact on devolution. The Government appear to have given up on even pretending that they respect the devolved Administrations. There was no consultation with them about the Bill even though it will apply to devolved public services, for which Welsh and Scottish Ministers are responsible. The Welsh Government are concerned that
“If passed, the Bill will provide a UK Minister with sweeping powers to make regulations which set minimum service levels during strikes in areas that are considered to be fully devolved … UK Ministers should not be able to exercise such powers over services over which they have no electoral mandate.”
The Scottish Government rightly object to the Bill interfering with their fair work principles, which they have negotiated with unions and employers. Does the Minister not think that the Bill is exactly why Scotland and Wales should be given powers over industrial relations?
The third question I would like to clarify is whether the Bill further undermines the sovereignty of Parliament. We have heard a lot today from much more experienced people than me on the use of skeleton Bills, but they are clearly a means of avoiding the legitimate scrutiny that legislation in the UK is expected to receive. To quote the scathing words of the Secondary Legislation Scrutiny Committee’s report, with its wonderful title Government by Diktat:
“This Report is intended to issue a stark warning—that the balance of power between Parliament and government has for some time been shifting away from Parliament”.
Much has been said, including recently in this very Chamber, about the importance of parliamentary sovereignty and how it is fundamental to the union. It is being whittled away in every Bill of this type. Anyone who believes in parliamentary democracy needs to stand up against the Bill. Can the Minister say who should make laws: Parliament or government? If he thinks it should be Parliament, will he accept that the Bill cannot be allowed to proceed?
Baroness Fox of Buckley (Non-Afl)
My Lords, I am totally opposed to the Bill, not least because it is an act of evasion and avoids tackling some genuinely dire problems in public services. Instead, it aims to punish ordinary people for daring to ask the perfectly reasonable question: “Will you give us pay rises in line with inflation to get us through this economic crisis, which is not of our making?”.
Yesterday, I spent hours in this Chamber listening to some fine rhetoric from the Government and across the House about levelling up: about improving the lives and living standards of millions of people who are struggling because of where they live and a lack of opportunities. I confess that I had some qualms about a paternalistic tone in terms of helping the northern poor. However, what is interesting today is that we encounter real workers—not passive supplicants—standing up for themselves, sometimes bolshie and angry, but unwilling to be forced to accept a pay cut. What is the Government’s response to workers fighting for a bit of DIY levelling up? They call their actions selfish and greedy, and smear them as a risk to public safety.
Yet again, we are offered an unnecessary law. The noble Lord, Lord Moore of Etchingham, wrote an excellent article recently in which he noted:
“The itch to announce a new law … often feels irresistible to governments, but it … always has bad results.”
The Minister should read that article because it is a warning of the unintended consequences of overlegislating. There is already a plethora of laws arming the state with emergency powers to ensure that strike action does not seriously threaten people’s welfare and ensures life and limb cover. What is more, the mechanism of the law has been used as a blunt instrument since the 1980s to weaken trade union power, so being able to legally call a strike requires a ridiculously high, but arbitrary, turnout and a voting threshold of 40% and 50% respectively. Note that this unelected Chamber would not often reach that threshold, and we have the temerity to make the laws of the land.
Despite the Trade Union Act 2016 setting such onerous strike-busting restrictions, the recent turnouts in strike ballots across workplaces have smashed through those obstacles. You would hope that might give the Government pause for thought to ask why so many working people who the state relies on to man railways, treat the ill, put out fires, guard borders, teach our kids, and so on, are so unhappy at work that even sectors that have not voted to strike for decades are now downing tools. This should prompt politicians to take these people and their demands seriously. But no; instead, they drag out some Thatcherite cliches about the 1970s and, as always, think the solution is more illiberal law to change the rules and make striking even harder. However, in the haste to play the hard man, we end up with shoddy legislation which even Jacob Rees-Mogg has described as “badly written”, saying that it smacks of “incompetence”.
Introducing the Bill in the other place, the Secretary of State, Grant Shapps, tried to gaslight trade unionists with this repetition: “This is not an attack on the right to strike” —we have heard various iterations of that today. However, with even more cynicism, he emphasised that the Bill is about the rights of the public, who
“work hard and expect the essential services that they pay for to be there when they need them”.—[Official Report, Commons, 16/1/23; col. 54.]
Hear, hear to that. However, if your object is to give public services to the public when they need them, why focus on strikers as the culprits for poor service? Why not target those who consistently run poor services?
I can tell your Lordships, as a regular Avanti West Coast train user, that there has been little difference between strike and non-strike days for months and months. Where are the minimum service regulations or punishments for train operators when trains are routinely cancelled or late, or for those at the top of the NHS who are responsible for the public facing waiting lists of years for treatment? What mechanisms do we have to impose minimum services on government departments which have singularly failed to control our national borders, or will the Government blame the small boats crisis on strikers too?
This whole Bill smacks of a cynical attempt to scapegoat striking workers for the wretched state of public services. It is an unjustified smear to suggest strikers are putting the public’s lives at risk. I find it particularly galling because one recent policy really did deny people health and social service and put their health at risk, with dire consequences; namely the shutting down of society for years in response to the pandemic. Who turned the NHS into a Covid-only service, with no regard for minimum service provision for those at risk of cancer, heart disease and stroke? Not even life and limb cover was provided. While we might not all agree in here on lockdown policies, my point is that those of us who argued for a more proportionate response to Covid and for maintaining services were often shooed away, but those services are now still creaking to recover. Long-term damage and suffering caused to the public, especially children, is a consequence of decisions made here in this Parliament and will be felt for years to come. That is where the energies of Parliament should lie: focus on that and not on offloading blame elsewhere.
One reason why so many workers are demoralised and burned out, as we have heard here today, is staff shortages and the struggle to recruit and retain staff for even minimum services, day in and day out. I am all for the Government trying to tackle this. It will need creative, courageous, radical solutions, and some of these might lead to clashes with trade unions—so be it. For example, I think that we need to look at seven-day NHS provision, and that GP surgeries should be open over weekends and for longer hours. I am impressed by the work of renal consultant Dr Andrew Stein in his 7DS policy, which wants to get more consultants into hospitals over weekends and elective surgery seven days a week. No doubt some of those ideas will clash with the BMA. So what? I support the rights of trade unions but I do not put them on a pedestal. I have no doubt there might be clashes with unions if we shake up public services and deal with the huge task of recruiting more staff to tackle our problems, but this Bill is counterproductive and will not work. Does the Minister think it is a productive use of overstretched public services personnel to invest time and resources to work out who needs to be in work, how many people and where, in order to create work notices? What a bureaucratic waste of time that is, with more management red tape—great.
My final point is on the public. There is no doubt that the strikes are disruptive and a real pain, creating more obstacles to negotiate just to get through the day, and sometimes they are scary, if you need to call an ambulance and so on. Many parents, for example, feel betrayed by education unions that denied children and students even a minimum education over the Covid years, and feel bitter that so many public servants are still working from home and not providing adequate face-to-face services. To the unions I say that there is no room for complacency. After all, only 23% of workers are members of a union, so unions need to work proactively to win hearts and minds beyond their members. To the Government I say do not make assumptions about the public and where they will land on this issue. The Government should not treat the public as their own army. I think the public are intelligent enough to work this out. A great notice we got in preparation for this debate from a group called Organise made the point that many non-trade unionists support these strikes, and their message is that they stand in solidarity—so do I.
Baroness Kennedy of The Shaws (Lab)
My Lords, many of those who have spoken have referred to historical matters. I am going to take us back to the economic crisis of 2007-08, because it was then that we had austerity policies introduced by George Osborne as our Chancellor.
Baroness Kennedy of The Shaws (Lab)
What has that got to do with it?
The mantra that was sold to the public was that we were all in this together; that we would all have to deal with austerity in order to get our finances right. Well the burden was not shared by all. The burden was borne largely by public services and by those who work in public service. It was, in my view, a deliberate and conscious policy to shrink the state, and we are paying the consequences of that now. Many of the people who have been on strike, and who continue to vote for strikes, have suffered the consequences.
There is a recent history of wage suppression, particularly in the public sector, with people seeing a drop in their income of up to 25% over the last 13 years. We have seen the casual erosion of employment rights; an increase in precarious work such as zero-hours contracts; and the burn-out of so many workers, as has been mentioned, because of staff shortages—largely a consequence of our hard-line Brexit position and the Government’s inadequacy to plan for a future workforce.
The health sector in particular has suffered. I know this directly because I come from a family where my daughter and her husband are both in the health service, as was my husband for many years. They see what is happening to doctors, nurses and all the ancillary workers, the people driving ambulances and the paramedics inside them. Let us not forget, as we are sitting in this Chamber, that the queues of ambulances were not caused by strikes; they are due to the chaos caused by a reduction of the National Health Service’s resources over many years. It is hypocrisy that the necessary work that was being done during the pandemic by transport workers, health workers and carers was seen as celebratory. We clapped and said it was wonderful, and I imagined that that would be the moment we would decide that we had to pay the public sector properly when we came out of the pandemic. Instead, of course, we are ending up making other kinds of choices.
I am afraid that the Conservative Party is going to be seen again as the nasty party. It is going to be seen again as the party that protects the interests of the well-to-do. Here are the people who have been holding things together, and they are asking only to be given what they justly deserve.
I remind everyone that the right to strike is so important because it is respected that it is locked into our understanding of power and who has it. At the end of the day, the only power available to an employee who is being treated unjustly, being inadequately rewarded and working in unacceptable conditions is the power to withdraw their labour. But there is no positive right to strike in English common law. This right is written into the constitutions of many other nations, but, at the moment in the UK, a strike is a fundamental breach of contract. There is limited protection from dismissal for the worker and protection from civil liability for the union in statutory law: the trade union and labour relations Act, which has of course been referred to, puts many hurdles in the way of getting to the point of being able to go on strike, and the unions comply with this.
I remind everyone that, as long ago as 1947, we signed up to the ILO convention on protecting the rights of workers and their right to strike. There is also some protection of the right to strike in Article 11 of the European Convention on Human Rights, but I am afraid that, as a lawyer, I have very little confidence about the future of all of this, given that we are already hearing talk from Conservative politicians about getting rid of the European Convention on Human Rights, and we have had displays of ready breaches of international law. So I am afraid I do not have much confidence in the ways in which the right to strike is being protected.
This is yet another layer of obligation, on top of what my noble friends Lord Monks and Lady Bryan described as the whole business of holding the ballot, having to reach certain thresholds, giving 14 days’ notice of any strike action, and so on, in order to make sure that you will not be sacked and there will not be civil liability for the union. This additional layer of obligation—minimum service levels—is being added. Having listened to this debate, it has become clear to me that people think that minimum service levels are about it being as if there is no strike at all—almost as if you will have the same service as on any other day, bad as that might be, as the noble Baroness, Lady Fox, said.
The Bill adds another layer of obligation and does precisely what the noble and learned Lord, Lord Judge, said: it is yet another seizure of power by the Executive and away from Parliament, which happens all too often now. The noble and learned Lord, Lord Judge, also spoke of the bizarre nature of the proposal: an employer creating one of these work notices is the very person against whom the strike is being introduced, because they are not behaving well. So is there a risk that those work notices coming from employers might go to the leaders of strikes? Who gets to choose, and how will this be done? They say, “in consultation with workers”, but there is a big gulf between consulting and negotiating. Negotiation with the unions is how this should be, and has been, done: UNISON has already made agreements with every trust in the country in relation to minimum services for health.
Most bizarre of all is that the Bill imposes a duty on the union to co-operate with the employer to defeat the strike. I emphasise that—just think of how ridiculous it is. People are using their last resort to get some justice in terms of reward for their work, and every single one of them—be they teachers, nurses or junior doctors, of whom my daughter is one—does their job because they love it and care about the quality of service that they provide. They know that it is now not being provided to the standard that they were made to believe it would be, and this is breaking their hearts.
My daughter tells me that many of the young people who studied medicine with her are now making the choice to go to New Zealand or Australia to work, because the conditions are so much better there. They are burned out after what they have been through, and there is an absence or shortage of staff. Get to the real point of this: negotiation is the best way for there to be good industrial relations. The Bill is unnecessary, and I hope to goodness that the Government see sense.
Lord Sahota (Lab)
My Lords, some of my points have already been made, but it is well worth repeating some of them. I declare that I am a member of the GMB. Last Friday, I attended my local branch meeting, where I presented my workplace report, in which I sought my branch members’ views and comments on the Bill. Comments were wide-ranging, and some would not warrant repeating in your Lordships’ House. The overwhelming view was that this a typical Conservative policy of union-bashing to keep the unions and their members in their place.
When I worked on the shop floor all those years ago, the only weapon we had against the might of that international engineering company to fight for our rights was the right to withdraw our labour, which was our basic human right. We did not like it, because we were losing our pay, but it was a last resort after all the negotiation had failed. As I said, this was the only weapon we had.
This Government are taking that away from the workers and that is despicable. Where is the Conservative Party’s compassion, which it talks about so much? Two years ago, the Government were clapping workers to the rafters for their dedication and sacrifice, and now, through legislation, they want to sack them and control them if they stand up for their rights. This same Government want to apply this legislation to virtually break a legitimate and democratically called strike by saying that 80% or 90% of the workers must report to work under minimum service levels.
All the rights the trade unions fought for and won for the workers over the last 100 years or so are being swept aside in one fell swoop by this Government. It was trade unions that got the workers their sick pay, maternity leave, equal pay for women, annual bank holidays, annual leave, health and safety at work legislation, and equal rights and equal pay for minority communities. Whichever way you look at it, the Bill has more holes in it than a rotten cheese. It is draconian, because Ministers will impose a minimum service level through a statutory instrument, which means it will face limited parliamentary scrutiny, since we all know that no statutory instrument has been rejected since 1979. It takes away workers’ legal rights to strike; they can be dismissed on the spot with no legal rights. It lacks proper parliamentary scrutiny; it takes away workers’ rights to defend their pay and conditions; it gives unfettered power to Ministers to do whatever they like, and this has enormous implications for the workers affected.
This so-called Henry VIII power gives the Minister authority to amend any other primary legislation. What frightens me even more about this legislation is that many details will be determined in secondary legislation, and we all know how that works—in favour of the Government, without any debate or scrutiny. It is a gross infringement of the individual’s freedom. Workers could be dismissed for taking action that has been agreed in a democratic ballot, in line with the Government’s union legislation, which was Lord Tebbit’s union legislation of 1982 or something along those lines. Not only that, it is in breach of our international legal commitments, of which we are historically so proud. The Bill is unnecessary. It is already custom and practice that during any industrial dispute, emergency cover is there to protect the public.
In conclusion, can the Minister explain to the House how employers will assess the equality implications of targeting specific individuals to provide a minimum level of service? Can he explain why the Bill is being debated before any consultation has been conducted or completed with any of the designated sectors?
Lord Liddle (Lab)
My Lords, my noble friend Lord Sahota has reminded me, in his excellent speech, that I should declare an interest as a member of the GMB. I congratulate the noble Baroness, Lady O’Neill, on her maiden speech. Having spent 20 years of my life on different local authorities, I am very keen on the voice of local government being stronger in this House, and I am sure that that is what she will bring.
I have a lot of sympathy for the noble Lord, Lord Callanan, in his role as Minister here. A fortnight ago, he introduced for us the revocation of EU law Bill, which I described as one of the silliest Bills ever to come before this House. Today, he is defending this strikes Bill, which I think is one of the stupidest Bills ever to come before this House, because its effects will be totally negative.
One may not have agreed with Margaret Thatcher—a lot of us did not—when she legislated for trade union reform, but she did it for what she regarded as a constructive economic and social purpose. This Bill does not have a constructive economic and social purpose; it is about gesture politics, about making headlines and about making the fractious, disillusioned members of the Tory party feel good about themselves, bringing back memories of the Thatcher days, hoping against all hope that they might return. I think it is a scandalously opportunistic, trivial measure.
I have some sympathy with the noble Baroness, Lady Browning, when she said—in a very good speech, if I may say so—that the public need a safety net. I sympathise with that, but I do not think it is practical to legislate for it. I do not think a safety net can be put in place by ministerial direction. Circumstances vary enormously from one public service to another—in fact, from one hospital to another, and all the rest. To a large extent, as we have heard from many contributions in this debate, a safety net already exists, because local representatives and management have agreed what line cannot be crossed. We are much more likely to make progress, if we want a safety net, by a patient process of negotiation than by ministerial directions from on high that can only make matters worse.
The noble and learned Lord, Lord Judge, in his characteristically brilliant speech, said that this legislation raises major questions of principle. He is right and I hope everyone here—I believe they do—believes that the right to strike is a crucial democratic right. Now I am going to say something that some people on my side might not agree with. I do not think it is an unfettered right.
Personally, after the winter of discontent and the 1979 election, when 80%, I think, of people who voted Labour in that election thought that trade union reform was necessary, I supported reform. I supported ballots and I supported restrictions on mass picketing. When the Social Charter came in, which was the great revolution in this area, bringing in individual legal rights, I recognised that the closed shop was no longer sustainable. So I do not support an unfettered right, but I do very much agree that it is extremely dangerous for the right to strike for this Bill to enact what is a huge surrender of parliamentary sovereignty to the Executive; what in 1930s Germany would have been called an enabling Bill—that is what this Bill is.
The Bill gives Ministers the power to change the law—even to change laws that do not presently exist. I just do not think it is right that this degree of discretion, which could result, as the noble and learned Lord, Lord Judge, said, in a situation where the right to strike was, in effect, illegal, is acceptable. I just do not think it is acceptable. We know in our House that the fact that these statutory instruments will come to us through the affirmative procedure is a very weak form of parliamentary accountability, unless we change the practice that we have adopted over many years.
Fundamentally, the Bill is a distraction from the central question, and here I agree with what my noble friends Lady Kennedy and Lady Chakrabarti and others have said. The central issue we face is a crisis in public services, which face a real existential threat as a consequence of a pay policy which is holding back public sector pay as against private sector pay in the face of the cost of living crisis. I have to say to the Government that it is not sustainable, it simply is not.
I know care workers in Cumbria who are going off to work in supermarkets and we cannot recruit any replacements. I know nurses who are leaving the profession. The fact is that as they leave, we are recruiting more, but we cannot make up for the numbers who are going. I know doctors who are looking for the earliest opportunity to retire because they just cannot fact the pressure.
If we are going to run effective public services, we have to have larger numbers of people working in them who are contented with their lot. That is not the case at the moment. It is not sustainable to simply hold down public sector pay as a means of trying to keep public expenditure under control. I say to the Government that I know why they are doing that: they want to promise tax cuts before the next election. But are we to face the ruination of our public services for this electorally opportunist goal? I do not think that we should.
What we need is a new approach to public sector pay. We should be looking at the way the review body system works and the criteria those bodies look at when they come up with their recommendations. Less regard should be paid to what is called affordability and more regard paid to labour market sustainability. Employers should engage with the unions on how we can change working practices in the public services so that we can afford higher pay. I do not agree, by the way, with the RMT position of demanding an unconditional offer. I think that is unacceptable; you have to be willing to negotiate on working practices as well as on pay. I would like to see more use of arbitration. Again, that is something the Government should be promoting—but they should not promote this Bill. This Bill is crazy. It does nothing to help the public service crisis. It will only make the situation worse, and we really deserve something much better.
Lord Fox (LD)
My Lords, it is always a pleasure to follow the noble Lord, Lord Liddle. There is an old maxim that applies here and now: everything has been said, but not everyone has said it—and now it is my turn to say it.
This has been an interesting Second Reading— I really mean that—and I have enjoyed your Lordships’ contributions, particularly that of the noble Baroness, Lady O’Neill. I am sure she is going to be a strident voice on local government, and we welcome that voice. Even if we do not always agree with what it says, it is representing a sector that has been underrepresented in your Lordships’ House, so I say to the noble Baroness: welcome.
As we have heard, the Bill imposes obligations on trade unions and individuals to comply with minimum service levels, enabling employers within specific services to issue work notices to roster the workforce required to secure those minimum service levels on a strike day. At its heart, the Bill seeks to grant broad powers to Ministers to limit strike action, and to introduce sweeping Henry VIII powers to amend, repeal or revoke primary legislation through regulation. As the noble and learned Lord, Lord Judge, so eloquently explained, this is another attempt at shifting power from Parliament to Ministers.
My noble friends Lord Allan, Lord Strasburger and Lady Randerson, along with many of your Lordships, explained that, in reality, the Bill is another attempt by the Conservatives to distract from their appalling mismanagement of the economy and their failure to avert public sector strikes in the first place. This is a political Bill. It has nothing to do with the practical needs of industrial relations or the real-life delivery of services. It was designed to protect the Government from a strike backlash, and it has failed to do that. The government spokespeople do not even mention the Bill anymore, because they know that it does not work; it has failed. I say to the noble Earl, Lord Leicester, that this Bill was not in the Conservative Party manifesto. One that dealt specifically with rail services and trains was in the manifesto, but this Bill is a bigger and different animal from that Bill altogether.
But more deeply, this Bill fails to get under the skin of the real crises in public services, and we have heard that from many of your Lordships. These crises should be seen in the context of the relentless effect of the past few years on employee morale, mental health and well-being.
Further, this Bill is an admission that the Government do not understand how the lives and livelihoods of our valued public sector workers have been eroded over time. It fails to grasp the recruitment crisis across the public sector. Far from making it more attractive to work in these services, this Bill is a huge disincentive to possible new recruits.
Looking beyond this huge array of failures, I will now talk about the concept of minimum service levels. As we have heard from many of your Lordships, the notion of a minimum service level is one that should start from the day-to-day level of service we get when there are no strikes at all. Are the tens of thousands of people waiting weeks to see their GP getting a minimum service level? Are the people right across Britain waiting sometimes tens of hours for ambulances getting a minimum service level? Are the people trying to travel by train from Manchester to Leeds experiencing a minimum service level?
This is the baseline from which this legislation is working. In health, as we have heard from my noble friend Lord Allan and many others, minimum service levels will not cut waiting lists or help solve staff shortages in the NHS. There will still be huge overcrowding and delays and terrible problems for people who are facing an emergency.
On the railways, even the Government’s Transport Secretary—I forget which one—has said that this legislation will make no difference to the current strikes. As we have heard time and again, the best way to avoid disruption of this kind and to prevent strikes in the first place is to get around the table and have meaningful, trusted talks with staff and their employers.
Judging by this evening’s news, it seems that there may be the beginning of a damascene conversion coming for the Government, but it is late. You solve strikes only by people sitting down and discussing them. That is how strikes end. They always end with an agreement and that is what the Government should have been seeking from day one.
Then, there is a central concern around the erosion of the rights of the individual, something we on these Benches hold very dear. This Bill shifts the responsibility for delivering a minimum service level on to the individual worker. We believe that this is fundamentally wrong. In setting out their minimum service levels the Government are shirking their duty of care and shifting the onus of service delivery squarely on to named individuals. It is not the Minister, the bosses, or even the union leaders who will be sacked in the morning if the Government’s standards are not met; it is those individual workers.
To be clear, the Bill removes protection from workers who are currently allowed to strike without losing their jobs. As we have heard from the Minister very clearly, there is no automatic protection from unfair dismissal for an employee who is identified in a valid work notice but participates in a strike contrary to that work notice. Quite simply, an employee identified in a valid work notice for a strike day who takes strike action that day and fails to comply with the work notice can be sacked. I am pretty sure that is not what the ILO had in mind.
Moving on, the Bill does not contain any detail about what the minimum service levels will be; however, some consultations have begun to appear and are now out for scrutiny. That is helpful, although the latest arrived only about an hour before we convened in this room.
My noble friend Lord Allan spoke about the ambulance service consultation. I will not repeat what he said, except to say that we do not have a national ambulance service, so how do the Government plan to implement a national minimum service level without doing what they are already doing, which is having local discussions with local service deliverers?
Then, there is the fire and rescue minimum service level consultation document. The consultation notes for this document offer an interesting confirmation of the importance of collective bargaining. It cites Portugal, France, Spain and Italy and makes it clear, as we have heard from many noble Lords, that in each of these cases the minimum service levels on offer in these countries are the result of collective agreement between employers and unions. We thank the Minister and the Government for confirming the essential difference between this legislation and the situation in other countries—a difference which effectively undermines the approach of this Bill completely.
However, I really want to bring one element of this fire service document to your Lordships’ attention; it was alluded to en passant by the noble Lord, Lord Greenhalgh. In the foreword to the consultation, the Home Secretary raises the horror of the Grenfell Tower tragedy while, at the same time, calling for minimum service levels during strikes. Page 11 of the online consultation then adds to this by raising the Manchester Arena disaster. I remind your Lordships that this is a minimum service level consultation document.
Whatever failings existed around those two tragedies, they would not in any way have been altered or met through a minimum service level agreement on striking. It is entirely inappropriate, and a dreadful piece of political opportunism, that these two issues have been conflated. I believe that it is beneath the Minister, the noble Lord, Lord Callanan, whom I respect; I mean that, I really do. I ask him both to use his response to distance himself from that approach and to go back to his department and seek to remove those passages from the consultation document.
To close, the Bill is taking powers from individuals and giving them to Ministers. Individuals could be fired by ministerial edict if they refuse to work when they have been given a work notice during a strike. Meanwhile, the Bill hands powers to Ministers at the expense of Parliament. It remains unclear what the specific provisions for minimum service levels will be and how they will relate to day-to-day service levels that are widely falling short of need and expectation. Several speakers have talked about balancing rights and responsibilities. If there is to be any such balancing activity it should be Parliament that does the weighing, not Ministers or Secretaries of State.
For those reasons, when the Bill Committee convenes, it needs to address at least a number of issues. We should aim to remove the Henry VIII powers; ensure that minimum service regulations are made only after consultation and negotiation with social partners, and then properly approved by Parliament; conduct realistic impact assessments on the Bill before it comes into operation; and remove the onus on individuals to carry the can for delivering minimum service levels. We on these Benches promise the Minister a high service level when it comes to that Committee’s work. We will do our best to help him take out the invidious elements of the Bill, which, frankly, make up most of it.
Lord Collins of Highbury (Lab)
My Lords, I start by thanking the noble Baroness, Lady O’Neill of Bexley, for her excellent maiden speech. I truly welcome her commitment to public service and her aspiration to make a difference; she will make a strong difference in this House. I also agree with her wholeheartedly that we need more women in Parliament and certainly more women in power. That would also make a difference.
I wish to mention the fact that the news tonight is that, at long last, the Government have agreed to sit down with the RCN and negotiate a settlement that will truly reflect the value this country places on nurses. The pity, of course, is that it has taken so long to reach this point. Some 140,000 appointments need not have been cancelled had the Government talked to the RCN, rather than ignoring its position. That is an important thing which we should have in the backs of our minds when we talk about the Bill.
A major focus of today’s debate, and a point which the noble and learned Lord, Lord Judge, made clear in his contribution, is whether it is right that we make laws this way through skeleton Bills. Whatever your Lordships’ views about the state of industrial relations in this country, we should all agree—across this House— that a rushed process which puts power over making laws in the hands of Ministers without proper parliamentary oversight is simply not right. I make that appeal to all Members of this House.
The noble Baroness, Lady Browning, quite rightly said that she welcomed the affirmative procedure in relation to the secondary legislation. However, let me remind her of the words of the noble Lord, Lord Hodgson, who said on 12 January in the debate on the Select Committee report that nobody
“could reasonably argue that secondary legislation is as effectively scrutinised as primary … Secondary legislation is unamendable. It can be passed or rejected but it cannot be amended. Secondary legislation is unamendable. It can be passed or rejected but it cannot be amended.”—[Official Report, 12/1/23; col. 1537.]
and that is not proper scrutiny in terms of the principles addressed in this Bill.
In that same debate, which I had the honour of responding to on behalf of the Opposition, the noble Lord, Lord Blencathra, a former Minister, said that
“when laws are passed without proper parliamentary scrutiny, they cease to be just technical, as they threaten the rights and freedoms of the individual.”—[Official Report, 12/1/23; col. 1532.]
Are not those words absolutely right in the context of this Bill? The noble Lord also reminded us in that debate that the excuse that excessive delegated powers are needed because Parliament cannot move quickly enough has been proved false on many occasions, not least by this Parliament’s reaction to Covid legislation.
Of course, noble Lords in this debate have referred to Jacob Rees-Mogg, a declared supporter of the Bill’s aims. He said in the Commons that
“this is not emergency legislation”
as the Conservatives had been contemplating these sorts of actions since 2016, and criticised its lack of detail when instead it
“should set out clearly what it is trying to achieve”.
He also said, as we have heard, that the Bill is badly written and an
“extreme example of bad practice.”—[Official Report, Commons, 30/01/23; cols. 88-92.]
That should be enough for this Chamber to say, “This Bill is bad”. However, what of Rees-Mogg’s policy objectives of imposing minimum service levels to replace what I believe, and what noble Lords have tried to put across tonight, is the current effective system of agreement between unions and employers for cover during industrial action, instead of the “one size fits all” mandate from Ministers?
I must admit that I always enjoy the contributions of the noble Lord, Lord Dobbs. Evoking the 1970s and 1980s is fair game, I am sure, but it is not reality or where we are today. My noble friend Lord Liddle was right: things have moved on. A lot of that legislation which imposed ballots has resulted in much stronger and more effective mandates. When British Airways are threatened with a massive mandate for industrial action, it cannot wait for that strike to take place. The cost to them has already hit because people cancel their bookings. They are not going to risk carrying on.
That is not what this is about. We do not need to evoke the 1970s and the 1980s. This is not about people pushing things to the limit. This is about our public services—our nurses and the people who support those nurses. In every element, these people have shown their worth in the last two years. That is what we should focus on.
Is this legislation going to do what it says it is intended to do? The simple fact, as we heard again in this debate, is that it will not. Mark Phillips, the chief executive officer of the Railway Safety and Standards Board, told a fringe meeting at the Conservative Party conference last October:
“If you introduce minimum service levels there’s the huge issue of how is that level set, and particularly if you set that minimum level and you’ve rostered staff to work. I would suggest you’d probably have a much higher level of sickness arise because of that because people won’t want to be seen to be breaking the strikes that their colleagues are involved in.”
As the noble Lord, Lord Fox, asked, what is the minimum standard level? There are many people who would love a minimum standard level, and they are certainly not receiving it at the moment. It is not just Avanti West Coast: every train service coming into London suffers from a shortage of staff; every hospital suffers from a shortage of staff; every GP surgery suffers from a shortage of staff. Why? It is because we are not attracting enough staff to do the job; we are relying, as the noble Baroness said in her maiden speech, on people’s commitment to public service. That is not sufficient to run a 21st-century-standard service.
Until today, we have had no sign of an impact assessment for this Bill. This morning, the RPC published its opinion of the impact assessment. The Minister is going to have to put a very brave face on that. It received it on 2 February, several weeks after the Bill had already been introduced to Parliament. It was red-rated: not fit for purpose. How can we scrutinise this legislation with that sort of back-up? The real criticism is the insufficient assessment of the impacts of the Bill on small and micro businesses, which is required under the Government’s own Better Regulation framework. I tried to read the 54 pages of the impact assessment, but we had it only an hour before this debate. I must admit that I was shocked by its amateurish nature, and especially by the impact on industrial relations.
My noble friend Lord Monks raised the fact that, when the Government tried to introduce minimum service levels in the transport strikes Bill, we had an impact assessment that said that minimum service levels could have a negative impact on industrial relations, increase the frequency of disputes, lead to greater use of action short of strike, and increase operational costs for employers, with a particularly onerous burden on smaller operators. That was in the first impact assessment, and this one tried to skate over all of that. Clearly it is not sufficient.
The Government are trying to hide the severe and disproportionate impact that their legislation will have on businesses, particularly small businesses. It is no wonder that they are trying to push this legislation and rush it through Parliament, because it really does not stand up to one bit of scrutiny.
The Bill does not define the factors that the Secretary of State will take into account when drafting regulations on minimum service levels. The only limitation on their powers is that the regulations may specify only services that fall within extremely wide categories: health services, education, fire and rescue, transport services, decommissioning nuclear installations, and border security. These will cut across both the public and private sectors and could include ancillary as well as core operational roles. Power is given to the Secretary of State to determine the scope of these services by regulation, without any guidance from Parliament.
There is nothing in the Bill to prevent ancillary staff being included, nor to prevent the legislation extending to a wide range of forms of transport, from taxis to passenger flights. We have heard the noble Lord, Lord Greenhalgh, talking about extending it to all kinds of services, including the ground crew. I am sure some people want to see an extension to ban strikes—a fundamental right. When we talk about conditions in China or Russia, we are quick to defend people’s right to organise—and quite right too. These rights are well fought after, and we should protect them, not allow them to be attacked in this way.
As the TUC asked in its excellent briefing on the Bill, what will a minimum level of service be? It could even mean a service at 90% of normal levels or an entire group of workers could be prevented from taking industrial action. In exercising these wide powers, a Secretary of State may “amend, repeal or revoke”, as my noble friend said in her introduction, and is empowered to do the same for Acts of the Scottish Parliament or the Welsh Senedd. What are these draconian powers for?
One looks at the Bill and sees how undemocratic it is and how it cannot possibly work in practice. What is it for? The noble Lord, Lord Fox, is absolutely right: I can see the election posters now, but it does not help our public services.
It is not only employees and trade unions that are concerned; I know that employers are deeply concerned, because some of the biggest employers in the public and private sector have told me that they are. They are very concerned about the complete lack of consultation. A Bill is brought in; nobody is consulted; consultation starts late and is only in three categories. As I said, it is not clear exactly who is covered by these categories.
I also want to raise the question of ILO conventions and the position of international labour standards. There is no obligation to ensure that the regulations are consistent with ILO conventions. We know that the ILO has already raised concerns about existing UK labour law which the Government have failed to address.
I appreciate the meeting my noble friend and I had with the Minister about the Bill. We had a good and frank exchange and I asked whether the Government will publish their assessment of why the Bill is compatible with international law. He said, “Oh no. We don’t publish legal advice.” I do not want the legal advice; I want the Government’s assessment of how they reached their conclusion that the Bill meets our obligations. I want to hear or see the political decision, not the legal advice. I want to know whether they have done a correct assessment of what pertains in Spain and France. What statutory rights do workers and trade unions have? The collective agreements are totally different; the organisation is totally different. It is not a fair comparison. As the ILO has stated, we now have much greater restrictions on the power of trade unions to organise.
I know that I have gone on for quite a long time, but I conclude with this point. [Interruption.] Well, it needed to be said, and I am sorry if people are bored with the repetition, but as we move to Committee, let me assure noble Lords that we will probe this Government to produce the evidence for why they have introduced this Bill. As my noble friend Lady O’Grady said in her opening speech, this Bill is unfair, undemocratic and unworkable, which is why we are committed to repealing it in its entirety at the soonest possible date.
Lord Callanan (Con)
My Lords, I thank all noble Lords for their contributions on what is, in the Government’s view, a very important Bill. There is clearly a wealth of expertise on this topic across the House, not least among the large number of ex-trade union general secretaries we seem to have on the Opposition Benches, who have all contributed well. Of course, I sense the strong feeling on this issue. As is usual in this House, we have had a thorough and engaging debate; most of the speeches have been thoughtful and I certainly listened with interest to what Members had to say.
I start, as many others did, by congratulating my noble friend Lady O’Neill on her excellent maiden speech. Unlike some others, she kept it relatively uncontroversial. It is a pleasure to see her in place today, and I am glad she has chosen this debate to make the first of what I am sure will be many well-informed contributions. I first met my noble friend during a visit to Cory’s Riverside Heat Network a few years ago and I am delighted, as an energy Minister, that we are welcoming someone with such a passion for energy. She has done some tremendous work as Bexley Council leader; she pioneered its decarbonisation vision and made Bexley a flagship Conservative borough. My noble friend and I have many things in common. We both have Irish parents: she has two and I have one. We both started our careers in local government. Hers was considerably more successful than mine: she became a council leader, and I was one Conservative out of 66 councillors in Gateshead. So, she did much better than I did in that respect. Congratulations to her on an excellent maiden speech.
I will do my best to respond to as many as possible of the contributions made and issues raised, but as always, time is limited and I apologise in advance if I do not have enough time to address everybody’s contribution. Let me start with concerns about the design of the Bill, raised by the noble Baronesses, Lady O’Grady, Lady Donaghy, Lady Whitaker, Lady Jones and Lady Kennedy, the noble and learned Lord, Lord Judge, the noble Lords, Lord Strasburger, Lord Monks, Lord Prentis, Lord Whitty, Lord Fox and Lord Collins, the noble Viscount, Lord Stansgate, the right reverend Prelate the Bishop of St Edmundsbury and Ipswich, my noble friend Lord Balfe and probably some others I have missed. I maintain that it is right that the detail of specific services and minimum service levels be set out in secondary legislation—that is not something for primary legislation. As a number of Members have observed, the Government published consultations on establishing MSLs in ambulance services and fire and rescue services on 9 February. Yesterday, we published a consultation on minimum service levels for rail.
It is entirely proper and legitimate for the Government to enable employers, employees, trade unions and their members and, most of all, of course, the public, who are affected by all of this, to contribute to the consultations. We had a lot of contributions from so-called vested interests, but we did not have much on behalf of the great British public. So, they will all be able to contribute and the Government will seek approval from both Houses of Parliament before any regulations come into force. I can also confirm to the noble Baroness, Lady Donaghy, that we would expect to engage ACAS as part of the consultation process.
When it comes to the sectors included in the Bill—mentioned by the noble Baronesses, Lady O’Grady, Lady O’Neill and Lady Randerson, as well as my noble friends Lady Browning, Lord Dobbs and Lord Greenhalgh—as I said in my introduction, the key sectors covered are broadly the same set that were listed as important public services in the Trade Union Act 2016 and which have long been recognised as important because of the far-reaching consequences for members of the public who are not involved in any way in that dispute.
As many other Members have done, I pay tribute to what I thought was a very moving speech by my noble friend Lady Browning. It was a heartfelt contribution, explaining personally how people have to live with the increased anxiety of not being able to get an ambulance during a strike. They have had to adjust their lives accordingly. I totally agreed with her contribution. It demonstrates the disproportionate impact that strikes can have on the public and why, therefore, this legislation is needed, especially for health services. As she said, minimum service levels aim to relieve that mindset. It is therefore only right that these sectors are included within the scope of the legislation.
Many people have been left worrying about whether an ambulance will be there when they need it. The rail strikes have left people unable to access their work, their healthcare and, in many cases, their education. Some people have probably been unable to access their church services, led by the right reverend Prelate, although we would need to consult further on whether that would be regarded as an essential service.
With regard to the specific transport services, as raised by my noble friend Lord Greenhalgh and the noble Baroness, Lady Randerson, the Government have identified passenger rail as a priority to be consulted for implementation first. My noble friend Lord Leicester explained why, quoting the relevant statistics on the impact of rail strikes from the Centre for Economics and Business Research. The direct cost of all strikes and the indirect cost of worker absences due to rail strikes so far is at least £1.7 billion over the eight-month period to January 2023. The Opposition are very keen to talk about nurses and healthcare; I note that they are slightly less keen to talk about rail strikes. Cebr also says that
“unresolved industrial disputes are having an adverse impact on growth”
at a time when many forecasters expect the economy to be in recession.
Before minimum service levels are introduced in any other transport services, we would, of course, consult to ensure that all evidence and stakeholder views are fully considered. This would include employers and industry experts. Obviously, we recognise that each transport service is unique and consultation will be key to ensure that we get this right. As regards other services, I am happy to confirm to my noble friend Lord Balfe that the Government currently have no plans to implement minimum service levels on coffee or sweet shops.
I reassure the number of noble Lords who expressed concern about the powers in the Bill to amend primary legislation, including the noble and learned Lord, Lord Judge, the noble Baroness, Lady Chakrabarti, the noble Lords, Lord Strasburger, Lord Monks and Lord Whitty, and the noble Viscount, Lord Stansgate. Before I turn to Clause 3, I want to be clear that proposed new Sections 234B and 234F contain no such Henry VIII powers. There is no intention or ability to use Henry VIII powers to set the minimum service levels. These powers are strictly limited to Clause 3, and the powers in this clause can be exercised only to make amendments that are necessary to give effect to the Bill; they are therefore truly consequential. It is a standard clause included in much legislation, with standard wording. Drafting includes the references to Acts passed later in the same Session for the simple reason that those Acts might have been drafted before this Bill becomes an Act, and therefore may not take it into account. That is the only reason.
Many noble Lords spoke in a greatly entertaining way about the international comparisons that the Government are using when referring to this legislation. The noble Baroness, Lady O’Grady, referred to this, as did the noble Lords, Lord Allan and Lord Strasburger. As I said in my introduction, most major European countries have some version of minimum service levels for their key public services. In fact, many countries go further. Some, such as the USA, Australia and Canada, go much further and ban strikes completely in some blue-light services. As noble Lords will know, the approach to setting minimum services levels differs from country to country, taking into account their different circumstances; but can we please not have some of the wild exaggerations that some noble Lords made about the consequences of this legislation. This is common across many other perfectly well-functioning liberal democracies.
Many Opposition Peers also accused the Government of focusing on legislating and not on resolving the disputes. We have always said that we wanted to reach an agreement. Ministers across government have been meeting with the trade unions to attempt to resolve these disputes where it is possible to do so and, crucially, where it is affordable to the taxpayer. In some cases, I am pleased to say that settlements are being reached. As the noble Lord, Lord Collins, observed, just this afternoon, while we were in this Chamber, the Government have published a joint statement with the Royal College of Nursing announcing their agreement to enter a process of intensive talks. Both sides are committed to a fair and reasonable settlement.
There is no question that industrial action can have a disproportionate impact on everyone: on members of the public who rely on essential services to get to work or to care for their families; on the NHS trying to get the backlog down; on schools trying to recover the lost learning after the pandemic; and on local businesses whose sales and productivity suffer. We need to have confidence that, when workers strike, people’s lives and livelihoods are not put at risk. It is therefore necessary, in our view, to have the power to act if required.
A number of noble Lords were entirely reasonable to raise the devolved Administrations and their involvement. The noble Baronesses, Lady O’Grady, Lady Chakrabarti and Lady Randerson, were right to mention this important issue. However, the plain fact is that industrial relations is a reserved matter. The Government have a duty to protect the lives and livelihood of their citizens across Great Britain. The disproportionate impacts that strikes can have on the public are no less severe on people in Scotland or Wales, and they have every right to expect the Government to act to ensure that they can continue to access vital public services during strikes. We obviously recognise that, in some cases, this will affect employers operating services which are devolved. The Government have published consultations on the application of MSLs for ambulance services, fire and rescue services, and rail services. As part of the development of MSLs in those areas, and the consultations that are legally required to inform these, we will continue to engage with the devolved Administrations on the geographical scope of the regulations.
A number of noble Lords suggested that this could be a vehicle for firing workers—a point raised by the noble and learned Lord, Lord Judge, the noble Baronesses, Lady Chakrabarti and Lady Whitaker, the noble Lords, Lord Strasburger, Lord Monks and Lord Hain, and the right reverend Prelate the Bishop of St Edmundsbury and Ipswich. Let me once again assure them that this is misleading as to what this legislation will actually do. The Bill equips employers to manage instances where a worker takes strike action despite being named on a work notice for that particular day of strike action by removing the employee’s automatic protection against unfair dismissal for industrial action. It is at the discretion of the particular employer, not the Government, as to what, if any, disciplinary action is taken in these circumstances. We hope that employers are fair and reasonable, and take this sort of action only where it is necessary. It is no different from employers managing instances of non-compliance for any other unauthorised absence.
The noble Baroness, Lady O’Grady, the noble Lord, Lord Allan, and the noble Viscount, Lord Stansgate, all spoke of the use of “reasonable steps” in the Bill. There are a range of steps that trade unions could take, and what is considered reasonable will depend on each specific situation. First and foremost, a trade union should not call a union member identified in a work notice as required to work on a particular day out on strike that day. The trade union could also encourage those individual members to comply with the work notice, and make it clear in their general communication with members that where members are named in a work notice, and therefore required to work on a particular day, they should attend work on that strike day.
A number of noble Lords spoke about our international obligations and considered arguments on this point were made by the noble Baronesses, Lady Blower and Lady O’Grady, and the noble Lord, Lord Allan. As we have said, the Government are confident that the Bill is compatible with our international obligations, including the European Convention on Human Rights. As all Ministers do, I had to sign a statement of compatibility before I introduced the Bill in this House and, as all Ministers do, I did that on legal advice. As the minimum service levels framework is developed, the Government will continue to uphold their international obligations, including those under the TCA.
I was pleased to hear my noble friend Lady Noakes speak passionately in her support of the Bill, and, in particular, about balancing the rights of the public with the rights of the ability of workers to strike. That is fundamentally what the Bill seeks to achieve. Other noble Lords spoke similarly on international labour obligations, including the noble Baronesses, Lady O’Grady and Lady Kennedy, and the noble Lord, Lord Balfe. Some have said that it is wrong for the Government to set minimum service levels via regulation, rather than via negotiation or independent arbitration. That point was also raised by the noble Lords, Lord Whitty and Lord Liddle.
We have consistently said that we hope we do not have to use the powers in the Bill and that, where possible, if unions can agree on voluntary arrangements where they are necessary, that is obviously better than having to legislate. Where we have to bring forward regulations, these will be subject to consultation and scrutiny in both Houses of Parliament. We think that it is fair and reasonable to enable employers, employees, trade unions and their members, and the public as a whole, to participate in the process of setting minimum service levels, and then for them to be approved by both Houses of Parliament before they are applied. This would not necessarily be the case if the minimum service level was simply agreed between the employer and the union.
It was right that the noble Lords, Lord Monks and Lord Fox, and the noble Baroness, Lady Randerson, spoke passionately about the naming of individuals as part of the Bill. To be clear, the Bill enables employers to issue work notices to specify the workforce required to achieve the minimum service level for that strike period. Trade unions are required to take reasonable steps to ensure that members identified in the work notice comply with that notice. Therefore, the trade union needs to see the work notice and know which union members may be named to be able to take those reasonable steps. Individuals named on a work notice will be notified of this as regards themselves only; the work notice will not be a public document. In addition, there are no sanctions or consequences for individuals if the minimum service level is not then achieved.
The impact assessment for the legislation has now been published, as a number of noble Lords observed. Overall, we expect the legislation to be of net benefit to the economy. We have of course noted the RPC’s comments and will consider whether it is possible to revise the impact assessment to address them. Impact assessments will also be published for all subsequent regulations on minimum service levels. We believe that many of the concerns expressed by the RPC will be addressed when those are published.
A number of noble Lords, including the noble Baronesses, Lady O’Grady and Lady Donaghy, and the noble Lord, Lord Hain, expressed concerns that union members would be targeted individually and unfairly by employers in work notices. The Bill is clear that an employer must not have regard to whether a worker is a member of a union, or a particular union, when issuing a work notice. Nor does the Bill do anything to diminish other protections against discrimination, which, I hope, addresses the questions raised by the noble Lord, Lord Sahota.
The noble and learned Lord, Lord Judge, suggested that the Bill enables unilateral variation of employment contracts. It is true that legislation made under the Bill will affect the relationship between some employers and some workers, and that they will be required to comply with it where applicable, but in that respect it is no different from most employment legislation. The Bill does not provide employers with powers to unilaterally vary employment contracts; it merely allows the giving of a work notice which adjusts the circumstances in which workers may lawfully go on strike. I am afraid that I do not agree with the noble and learned Lord that any of that is akin to unilateral variation.
Some noble Lords, including the noble Baronesses, Lady Chakrabarti and Lady Jones, the noble Lord, Lord Prentis, and my noble friend Lady Noakes, raised the existing life and limb law. Disproportionate impacts on the lives and livelihoods of the public still occur during strikes, despite Section 240 of the 1992 Act being in place. The aims of MSLs are to balance the ability to strike with the rights of the public to access the vital services they depend on during those strikes. The purpose of Section 240 is to allow for criminal prosecutions for those who intentionally and maliciously endanger life or cause serious injury to a person by going on strike. In my view, these are two fundamentally different aims, and, as my noble friend Lady Noakes flagged up, the right to access key services clearly goes beyond life and limb.
I will also take on board and consider the point made by the noble Lord, Lord Fox, about the Home Office guidance in the Manchester Arena tragedy and follow that up with him.
Finally, a number of noble Lords rightly raised the issue of the pressure that the cost of living is putting on people and our public services. That is why we have committed to halving inflation and growing the economy, and why we have provided £26 billion to support individuals and businesses. We are investing billions more in schools, the NHS and social care, and all that of course supports those who work in those services. The Government respect the vital work that public sector workers do on the front line to protect the lives of others—a point we have made a number of times and will continue to make.
Once again, I thank all noble Lords who have spoken. I reiterate what I said in my opening remarks: the Government support workers’ ability to strike; it is an important part of industrial relations that is rightly protected by law. The Bill seeks to maintain a balance between the ability to strike on the one hand, and on the other the public’s right not to be subjected to disproportionate impacts as they try to go about their daily lives and access essential public services. My noble friend Lord Patten was right when he said that striking the balance between the ability to strike and the right of the public to be safe and protected is difficult, but we believe that our approach is a proportionate way to provide this important balance. I am happy to confirm to him that the Government have no intention of banning the ability to strike. As my noble friend Lord Dobbs so eloquently put it, the Bill is intended to keep the country working.
To encourage further engagement with the Bill, links to the consultations will be circulated to participating Peers after this debate. In the meantime, I of course look forward to discussing the Bill further with Members in Committee. With that, I beg to move.
Lord Callanan
That the bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the bill in the following order: Clause 1, Schedule, Clauses 2 to 6, Title.
Strikes (Minimum Service Levels) Bill
Thursday 9th March 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 97-I Marshalled list for Committee - (7 Mar 2023)
Lord Collins of Highbury
Member’s explanatory statement
The amendment seeks to stop regulations under this Bill from being applied to strikes which have already been balloted for.
Lord Collins of Highbury (Lab)
My Lords, I am sure that the Minister will feel a bit like me, having done two days of Committee on the retained EU law Bill and now going straight into this. I hope the Committee will forgive me if I stray into areas where my brain could still be stuck on that Bill. Anyway, let us have a go. The difficulty with this Bill—it is similar to the one we were considering for five days—is that it is a skeleton Bill. It is very difficult to understand the policy objectives and purposes, and what the meaning of these things will be. We do not really have a clear impact assessment of it.
I start with my amendment in this group about the lack of reports we have received. Certainly, no reports or impact assessments were available when the Commons considered these issues. We have now had them, and our own Delegated Powers and Regulatory Reform Committee gave a very clear statement about the Bill. However, I want to focus on the Joint Committee on Human Rights report referenced in my amendment. I have never seen a report condemn a Bill in such a way. The Committee found that
“the Government has not adequately made the case that this Bill meets the UK’s human rights obligations”.
It highlighted—we will address this in other amendments—the lack of clarity around
“The requirement that trade unions take ‘reasonable steps’ to ensure their members comply with a work notice”,
which may fall foul of Article 11 of the European Convention on Human Rights. At Second Reading, the Minister constantly said that we are meeting our international obligations, but the Joint Committee on Human Rights certainly does not agree.
The fact that we are uncertain about what these things mean leads me to the question of how the Bill will impact existing disputes. Not only do we have a poor definition of the sectors which may be engaged and such broad categories that we do not know exactly what will be in it, we also do not understand what minimum service levels are, how they will be applied and how they will be applied in those categories. Absolutely nothing is clear. It is all going to be reliant on statutory instruments—secondary legislation.
Again, a Committee of this House—I raised this, along with the noble Lord, Lord Hodgson, last night—has been very clear; the problem with skeleton Bills and secondary legislation is that you end up with proposals being put forward that this House cannot give proper consideration to. We cannot amend, change or improve them. None of those things applies here or down the other end, so we are presented with a fait accompli to reject or accept. That is an extremely difficult situation to be in.
Particularly in Amendment 1, we are probing when the measures in the Bill will apply and how. I particularly want to hear very clearly from the Minister if this will be applicable to disputes that have already commenced. If it will—if the mandate has been established, and a trade union has complied with every legal requirement in balloting and notices and the mandate was democratically arrived at—is the Bill going to impose an additional requirement on trade unions? Will they have to say to their members, “You may have balloted, met all these statutory requirements, and have a legal right to strike”, but the Government will insist now that the union tells them they must work? Can that possibly be right at all? We will go through all this as we move on, but what a situation to be in. How can that be justified? It will lead to people not fully understanding their rights and responsibilities. We will look at this in other groups, but this could impact areas in which we already have minimum levels of service and agreements to ensure that things are protected. This potentially undermines those, especially if there is confusion about the categories of employees within a sector mentioned in the Bill.
I come back to the point about retrospection. Are we suggesting that someone who has complied with all the legislative requirements entering a dispute can suddenly be faced midway with the understanding that their protection from dismissal is lost? If the Minister comes back and says, “The Bill is not about dismissal or sacking people”—I will probe strongly on that—what will it result in? Will it result in huge penalties against unions? If the union loses its immunity under the Bill on a dispute which has started and met all the statutory legal requirements, is the union going to be vulnerable to further attacks? It is not acceptable. If there are to be situations like that, I dread to think what would happen. People cannot be forced to undertake something where they started knowing their full legal rights, but the situation changed.
On the Joint Committee on Human Rights report, there are a number of areas I could address but I will not at this stage. I will pick them up in other groups, but it is very difficult to not stray into areas beyond the terms of the specific amendment, because nothing is properly defined. Committee is an opportunity to interrogate, probe and have conversations. I hope we will be able to do that on this group because so much is unclear. I beg to move.
Lord Fox (LD)
My Lords, the first two amendments in this group look, sequentially, either backwards or forwards. I agree with the noble Lord, Lord Collins, and his colleague the noble Baroness, Lady O’Grady, that the Bill should not apply retroactively. I am sure we agree that it should not apply at all, but the arguments set out by the noble Lord, Lord Collins, about the unfairness of retroactivity are clear, and probing the Government’s intentions for how the Bill would be applied is very helpful.
Baroness Noakes (Con)
My Lords, I will make comments on two aspects. First, it is not the case that the Bill is retrospective in effect because, by definition, it applies only to future strike actions. The fact that the strike action might have been initiated before the Bill is completely irrelevant. It applies to protect people who are suffering from the lack of services in the future, so it is not retrospective.
Lord Collins of Highbury (Lab)
I do not understand why it is “completely irrelevant”. Is the noble Baroness saying it is irrelevant if people participate in a ballot, there is a democratic decision, a dispute is held, the mandate is proper, everyone knows their legal rights and responsibilities, and the unions have had to go through huge hoops to get there?
Baroness Noakes (Con)
I am. The need for the Bill has been established by a lot of rather irresponsible action by some of the unions which has completely disrupted the lives of ordinary citizens. Remember that the Bill is designed to protect the lives of ordinary citizens and to balance their rights against those that the noble Lord referred to. It will apply only to future strike action by workers—that is the most important feature.
Secondly, I will address the Joint Committee on Human Rights. Both noble Lords who have spoken struggled to paint this as a very damning report. It is not: it does not say that the Bill does not comply with international obligations but instead says things like it is “difficult to establish” or that it “arguably” contains insufficient provision. Although I have great respect for the Joint Committee on Human Rights, and particularly its chairman, who is an acknowledged expert in this area in her own right, it is not the arbiter on whether bits of legislation comply with human rights law. At the end of the day, it is for the courts to decide. The Government believe that it is within our international obligations, and there are good arguments for that. We should not take the view of one committee of Parliament as being determinative, even if that committee were clear and unambiguous in its findings, which it was not.
Baroness Chakrabarti (Lab)
My Lords, I wonder whether I could speak, because I will respond directly to the noble Baroness opposite. To be clear, I support all the amendments in this group, but I will tailor my comments in direct response.
Essentially, there were two comments about the Joint Committee. The first was that its language was too moderate to be taken seriously. I disagree in principle with the proposition that the fact that the report was not “damning”, as opposed to concerned or critical, should somehow undermine the value of that commentary. The Joint Committee is to be praised for its constructive tone in matters of industrial relations—if only everyone did the same.
Crucially, on the issue of who the arbiter is, I think it a bit rich for people who spend a lot of time undermining the legitimacy of the courts, of “unelected judges who do not speak for the people or have democratic legitimacy”, whether here or in the international court in Strasbourg, and who do so in the context of one Bill—perhaps about refugees—then to come along and criticise and undermine an essential element of our domestic human rights settlement which is a parliamentary committee of both Houses that has more of an element of “democratic legitimacy” and was always intended when the Human Rights Act was passed. Yes, of course, the courts will be the final arbiter, but before we get to that extreme situation—it should be rare in a modern democracy that the Executive and the courts have to be in a head-to-head collision—there is a role for Parliament. There is a role for Ministers when they make a Section 19 statement under the Human Rights Act. Ministers on this occasion have taken the view that they can make a Section 19(1)(a) statement; in other words, they believe that this measure complies. Following on from that executive statement—that is what a ministerial statement is—it is a key part of our settlement, and rather a constructive one, that a parliamentary committee of both Houses has a look at ministerial reasoning for it. I do not need to put it higher than this: on this occasion, the Joint Committee, with an element of democratic legitimacy—because it is not just Peers but to a large extent Members of the other place—has taken the view that the case has not been made by the Government. The noble Baroness did not address the specifics of that.
I will try to crystallise what the noble Lord, Lord Fox, identified in the criticism of the Joint Committee. Essentially, when one interferes with qualified rights such as freedom of association—it is a qualified right; it is not torture that we are talking about here; this is freedom of expression and freedom of association—one needs to comply with a convention that was drafted by Conservative lawyers after the Second World War. I will keep saying that because it is an important part of political history in this country and the world. To comply with Article 11, interference or potential interference—not violation, but interference—with freedom of association needs to be necessary and proportionate and in accordance with the law. “In accordance with the law” means not arbitrary—to be clear and foreseeable enough when that interference is set out.
The Joint Committee asks reasonable questions of noble Lords and Ministers opposite. First, how is this measure proportionate, when there are more proportionate means such as negotiation, of establishing what minimum service levels should be? Secondly, how is it proportionate to introduce this element of retroaction in relation to people who have balloted on the understanding of the law as it currently is? Thirdly and crucially, how is it not arbitrary to put the meat, the potatoes and the dessert—the whole meal—in regulations and not in the Bill? Those are incredibly pertinent, reasonable and legitimate questions for the Joint Committee of Parliament—not the courts, because we are not in that extreme situation yet—to ask. That is the point of Parliament; we do not want to set a collision course between our Government and His Majesty’s judges, let alone an international court. That is why I address those comments to the noble Baroness opposite.
More generally, I am more concerned by the hour, let alone by the day, about this Government’s approach to human rights. On this occasion and with this Bill, they have taken the view that the Bill complies. I disagree, but I am sure that we will shortly hear from the Minister the rationale about how in his view this Bill—not just the policy behind it but the way the policy is executed—complies with those requirements of “proportionate interference” and accessibility in terms of non-arbitrary measures that are in accordance with the law. It is legitimate that we ask the Minister to do that.
Baroness Chakrabarti (Lab)
I do not find this kind of deliberate strife—a confected division of our very troubled country—amusing at all, and I look forward if not to the noble Baroness’s response then to that of the Minister in due course.
Lord Henley (Con)
My Lords, I sit on the Joint Committee on Human Rights and therefore my name is attached to that report. We have heard various descriptions of the report coming from the Opposition Front Bench, the Liberal Democrat Front Bench, my noble friend Lady Noakes and the noble Baroness, Lady Chakrabarti. As the noble Baroness, Lady Chakrabarti, put it, the report asks some questions and raises doubts about whether the Bill is compliant. We had only a very short time in which to look at the Bill, because it is being brought through rather quickly. We had one evidence-taking session, and we sent out a call for evidence, to which there were a number of responses. I cannot say that our examination of the Bill was as in depth as it would have been for any other Bill. Nevertheless, I can say that the descriptions of the report from the Opposition Front Bench and the Liberal Democrat Front Bench are not quite the same as what I have heard from my noble friend Lady Noakes or even from the noble Baroness, Lady Chakrabarti, who, quite rightly, set out that, although we raised doubts, we did not give that damning report that was the impression one got from the speeches from the Opposition Front Bench and the Liberal Democrat Front Bench.
I would have signed up to the report only if I was happy with it. Although the report raised some doubts, it did not say, “This is not compliant”; it made it clear that we thought that there were questions to be answered. Those questions will, quite rightly, be answered by the Government when my noble friend the Minister comes to respond today and, no doubt, at later stages. There was not time either for my noble friend or whoever is the responsible Minister to come to the committee and give evidence; no doubt they would like to have done so, and no doubt there will be a possibility of their doing that in future.
I just want to make it clear that there are different ways of looking at the report. What my noble friend Lady Noakes, the noble Baroness, Lady Chakrabarti, and I are saying is probably a better picture of it than what we heard from the Opposition Front Bench.
Lord Collins of Highbury (Lab)
I certainly would not want to mislead the Committee. What I was trying to say at the beginning is that the problem with the Bill is that we do not know what it is going to lead to. As the report states—my noble friend raised this point—
“the requirement for trade unions to take ‘reasonable steps’ to ensure their members comply with a work notice issued by an employer does not provide the clarity needed to guarantee that trade unions and employees will know when this duty has been met and when it has not … As drafted, the provision … may fall foul of the requirements of Article 11”.
I shall keep coming back to this point: we simply do not know how our rights will be impacted, because it is not clear or foreseeable.
I think that it is an excellent report; I was not overegging it at all. There will be a lot more questions on this as we move through Committee. My other point is that not only are we not clear about what is foreseeable, but we are now hearing from the noble Baroness, Lady Noakes, that this legislation would apply even though a union has complied with all the current statutory legal obligations.
I am glad that the noble Lord, Lord Forsyth, is here, because I remember the 1980s as he does, including the legislation that had to be passed. There are many hoops, so somebody who starts at the beginning of an official, legally recognised dispute, will then be told half way through, as a consequence of this potential legislation, that they do not have the right to go on strike. Worse still, there will be a legal obligation on the union to tell them that they cannot go on strike. So the union which organised the ballot for them to strike and has met all the statutory requirements is suddenly being told that they have to take reasonable steps. What does that mean? Does it mean that they instruct the person not to go on strike? I hope that the noble Lord can clarify that for me.
Lord Henley (Con)
Like my noble friend Lord Forsyth, I also remember the 1980s. Probably one of the problems of this House is that we can all remember the 1980s slightly too well—possibly excluding one or two other younger Members of the House.
I am not accusing the noble Lord of misleading the House. These things are always just a question of tone. Certainly, with the great many reports that come to the Joint Committee on Human Rights, it is matter of getting the tone right, so that we can all come to an agreement. On that committee, and I am sure it is true for a great many other committees, we always try to get agreement from every member; that helps to give greater effect to the report. Interpreting the tone of the report is important. That point was the only reason I wanted to make a contribution; I was not planning to speak on the Bill. I will probably stay here for much of the rest of the debate to make sure I can contribute as appropriate; I will ensure that I have a copy of the report in front of me.
Baroness Fox of Buckley (Non-Afl)
My Lords, I am surprised that anybody has been able to check whether the Bill is compliant with human rights legislation, because there is nothing in the Bill. I try very hard to read the legislation that comes before us, but I cannot always do it because I have tomes and, as I am not in a party, I have no one to outsource it to. However, I did not have much trouble with this Bill, because there is nothing in it—and, in a way, that is the problem. So although I am not keen on human rights legislation, I disagree with the noble Baroness, Lady Chakrabarti, that this is some big conspiracy against human rights legislation. But I cannot tell what I think about the Bill in relation to that point.
If we forget the human rights aspect, the problem with the skeletal nature of the Bill is that employment rights are important to millions of people in this country, and they were long and hard fought for. If there is a risk of their being taken away, we are not all just going to sit here and say, “Well, we will trust you, even though you haven’t written it in the Bill”.
I have so many questions. At Second Reading, the Minister stressed that a process of consultation would be required before regulations on maintaining
“minimum service levels are introduced”.—[Official Report, 21/2/23; col. 1640.]
But with whom are they consulting? The fact is that we are discussing minimum services and we do not know what the minimum services are. Is it 90% or 50% of services? Will it be different for different services? It is inevitable that this will make it open to conspiratorial questions; people will ask, “What are they up to?”
All the time, I just keep thinking that the consequence of this is that overstretched public services will have to assess these minimum services, which I think will waste endless amounts of their time when we have a crisis of public services. Named individuals may be persuaded to vote for strike action—it is perfectly within their right to persuade them, if there is an argument as to whether they will go on strike or not—and decide to go on strike, which is quite a big decision to make, but then they are named by their employer as somebody who has to strike-break and cross a picket line. If you refuse to do that, you jeopardise everybody else’s employment rights and get the union sued, so you can understand that concern. As an aside, strike-breaking and crossing picket lines is a point of principle that some of us we will not defy; it is a big deal for us. I wanted to make that one bit of clarification.
I just do not know why we need the Bill, and there is nothing in the Bill to tell me why we need the Bill, because—and I think this relates to some of the points made in the Opposition Front Bench’s opening speech—is it not the case that many of the sectors mentioned in the Bill already have their own minimum service requirements? They are often voluntary, but sometimes not. Only in 2019, in the Queen’s Speech, we were told that we needed a Bill to ensure that people could depend on their transport networks; they were trying to legislate on minimum service in transport. At the time, I wondered why they were picking on transport workers, but the point was that they felt it was so important that they had to mention transport. However, now they are just throwing in everybody else. So it has changed from having any kind of democratic requirement; that would imply that this is because more people have gone on strike, but the Bill comes across as a Bill to stop strikes, and, surely, that is one of its problems.
We have the Fire and Rescue Services Act 2004, which allows the Secretary of State to provide and to maintain services and facilities in fire and rescue situations. That was given to him, and, while I did not agree with it, he has that legislation. In the education sector, there are various statutory duties on schools regarding the safeguarding and supervision of children and so on.
Do not get me wrong, I do not agree with all the strikes that have been called recently—I am not in those unions, and I might argue against them—but that is not the point; the point is that we are talking about fundamental rights. They are not human rights; they are long-established employment rights, and the Bill does not tell us which ones are being taken away. It will inevitably cast the Government as people who are indifferent to workers’ rights. I have defended the Government on the Retained EU Law Bill when people have said that they are using it to smash workers’ rights; in response, I have said, “Don’t be so conspiratorial”. I am not helped in defending the Government on that when they bring this Bill forward which is about attacking workers’ rights.
Baroness Chakrabarti (Lab)
I will respond, briefly, to the noble Baroness, and I am grateful to her for her ability to disagree well. First, I point out that many of the fundamental employment rights that she holds so dear are actually human rights, and they are set out in international conventions and the covenants of the Churchill settlement. If she does not like the word “human”, she does not have to use it, but these rights are, as a matter of law, international human rights.
Secondly, again, I know that she does not like our human rights settlement or the Human Rights Act, but in our public law in this country, not just under the Human Rights Act, one of the main benefits to the Government of putting the policy neat in primary legislation and not leaving it all to regulations is that regulations—to respond again to the noble Baroness, Lady Noakes—may be struck down in the courts in ways which primary legislation may not.
Lord Cashman (Lab)
My Lords, I speak in support of Amendments 1 and 51 in the names of my noble friends Lord Collins of Highbury and Lady O’Grady. It seems to me that the amendments in this group are perfectly reasonable. Amendment 1
“seeks to stop regulations under this Bill from being applied to strikes which have already been balloted for.”
I cannot think of anything more reasonable.
The Bill causes me deep concern, on the basis not only of human rights but of the fundamental rights enshrined in British law. For example, under the Bill,
“Workers could … be sacked for taking strike action that has been agreed in a democratic ballot. If a person specified in their employer’s work notice continues to take strike action despite being required to work during the strike, they will lose their protection from automatic unfair dismissal. This currently applies for first 12 weeks of a strike.”
This is a gross infringement of individual freedoms.
In listening to the earlier intervention by the noble Lord, Lord Henley, I thought he made a rather good case for Amendment 51—that is, that the amendment requires the publication of a report from the Joint Committee on Human Rights before the Act can come into operation. Again, that is perfectly reasonable, engaging the organs of Parliament in how we go forward.
Lord Balfe (Con)
My Lords, the noble Baroness, Lady Fox, hit the nail on the head: this is a completely unnecessary Bill. It tells us nothing and no one is demanding it, apart from the Government, who seem somehow a bit obsessed with problems which I am not sure exist.
I begin by declaring my entries in the register. I can actually top the noble Lord, Lord Cashman, as I have been a trade union member for 63 years consistently, and I still am today—and very proud of it. I am not also completely dominated by our need to respect international law. Having been in Brussels and Strasbourg, I have seen how sclerotic it often is. On the migrants Bill, for instance, there may well be a need to stand up to some of the international law provisions. But that is not the case here—there is no demand for this Bill at all.
I am not, as the noble Lord, Lord Fox, implied, trying to be Mr Micawber. The Bill is so defective that the Government will need a couple of years to sort out what it means. All the different industries and professions mentioned in the Bill have a quite different profile. Nuclear decommissioning, driving an ambulance and flying a plane are somewhat different occupations; they have different standards and necessities. What is a minimum service level? I had a delightful four hours with representatives of the National Health Service last year—I was in the back of an ambulance because I had had a fall, and I was waiting to be admitted to hospital. The workers said that, if they had more of a reception area, they would not be here, but that it was nice to talk to me as it covered half their shift.
Let us be realistic about this: a minimum service level would be very easy to find if you had a properly organised service in the first place. Yesterday I was talking to a doctor in Cambridge, where I live. Apparently, there is going to be a junior doctors’ strike on Monday, and he said to me, “We’ve cancelled some of the routine appointments so that we have enough capacity to deal with emergencies.” That is on a strike day, and that is a doctor who is covered by that strike but who is also very cognisant of the needs of the community he serves.
There may be a need for some arrangements with blue light services, but there already are lots of arrangements with them. There are not groups of workers saying, “We refuse to talk to you—we want a few people dead.” Most of the workers are very keen on providing minimum services; most workers do not like going on strike. As I am sure the noble Baroness, Lady O’Grady, will be happy to tell us, most workers never go on strike in their whole career as trade unionists. They join trade unions for protection and benefits, and to have someone to help if they run into trouble, as well as to deal with an employer who steps out of line by being racist or sexist or something like that.
I have been active as a trade unionist, and most of the work of trade unions that I experienced was welfare work. You are helping to sort out problems—and more than once people have said to me, “Which side are you on?” You find that things escalate out of any reasonable action, and suddenly you have people saying, “I’m going to get them, I’m going to get them,” and you have to say, “Calm down; you can’t. Let’s just sit down and have a cup of tea and look at what the options are.” Frankly, the trade union movement plays a big part in good industrial relations in this country. It plays a much bigger part in promoting good industrial relations than anything else. Hardly any time in a union organiser’s or member’s life is spent organising or even thinking about going on strike; it is mainly about making the work more pleasant and efficient.
These are the people who create the wealth of the country—that is what I would like the Government to remember—and if they were not there, we would have no wealth in this country. I see that we are going to have nuclear installation inspectors subject to minimum standards; but nuclear installation inspectors, as far as I know, have never been on strike, so what are their minimum standards going to be? Why are they in the Bill in the first place?
My amendment may look like Mr Micawber, but it would give the Government a chance to sort out what the Bill actually means. Apart from that, if the Government are so convinced that this is the right policy for Britain, it will give them something to campaign on at the next election. They can say, “Vote for us and we will bring this Bill into being.”
On a very final point, I served as the president of a trade union for some time; I go to meetings. I am afraid we spend far too much of our members’ money on legal services. There is an absolute demand by the executive that everything is absolutely legal. The profession of the noble Lord, Lord Hendy, makes a huge amount of money out of trade unions because we do not believe in breaking the law; we believe in adhering to the law. All the Bill will do is provide yet more challenges and yet more times when, sitting around the national executive table, we will say to the general secretary, “Are you sure we have got all the bases covered?” The general secretary will say, “I am pretty sure, but I will go back to our KC and absolutely finally check before we take this action.”
I therefore do not really think that this is necessary. It will not add to relations; in fact, it will sour them because it is an unnecessary piece of legislation. It will not be respected. Most employers do not want it. I have not got any letter from an employer saying, “Dear Lord Balfe, you are a Conservative, please go in and support this legislation”—not one letter. The Minister should think about pressing the pause button on this, because the Government have far more important things to do.
Baroness Donaghy (Lab)
My Lords, we have had a reference to Charles Dickens; I am going to mention Lewis Carroll, because I think this is straight out of Alice in Wonderland: you are wandering through a maze, you do not know what questions to ask, you ask a question and all of a sudden the answer is, “Off with his head”—or “Off with her head” in my case. It really is very difficult to pin things down to common-sense questions and to pin the Minister down as to what he may or may not finally include in either the Bill or the statutory instruments. I will have a go, however, because I think the noble Lord, Lord Henley, is quite right that the report we have been referring to is quite a mild report.
I was particularly drawn to the conclusions and recommendations, one of which said—I think the noble Lord, Lord Fox, has already referred to it—
“We do not consider that the Government has given clear … reasons why the current legal protections that apply to strikes and the current practice of establishing voluntary minimum service levels are no longer sufficient to balance the rights of the wider public against the rights of the employees and unions concerned.”
I think that pinpoints exactly why the Bill is just an antagonistic approach to unions, rather than a sensible set of proposals. I have a specific question for the Minister is, the report suggests several amendments in its annexe: will the Government consider its amendment 4? I am not proposing it; I am just asking if this is something that would be considered. The recommendation is:
“In deciding whether to identify a person in a work notice and in specifying the work required to be carried out by them, the employer must not have regard to whether the person is or is not a member of a trade union (or a particular trade union) or any trade union activity the person has undertaken or otherwise been involved in.”
Are the Government minded to accept that amendment from the report?
Lord Hendy (Lab)
My Lords, it is a great pleasure to follow my noble friend Lady Donaghy. After the intervention by the noble Lord, Lord Balfe, I really ought to declare my interests as in the register. I reflect that, over the last 41 years, I have represented many unions in strike cases including, in the last 20 years, a number in the European Court of Human Rights. Of course, I support Amendments 1, 50 and 51. I shall speak to Amendment 51 and the deployment of the JCHR report before the Bill comes into effect. I am grateful to the noble Lord, Lord Henley, for expressing his view of the JCHR report and I agree with my noble friend Lady Donaghy that it is a mild report. In my view, it is too mild, too gentle. As the noble Baroness, Lady Noakes, rightly pointed out, the ultimate arbiter will be the European Court of Human Rights. The difficulty for us, of course, is that any decision challenging this legislation in that court will arise out of a factual situation that has not yet occurred and will take years: it will be a long time.
Lord Whitty (Lab)
My Lords, it is a pleasure to follow my noble friend Lord Hendy. This discussion on the first amendment is bound to stray widely, but one of the areas it does have to consider is whether the various sub-committees and our adherence to and acceptance of international conventions going back more than half a century need to be jeopardised by this rather inadequate Bill. It is also a pleasure to follow the noble Lord, Lord Balfe; he says this Bill is unnecessary, and I totally agree.
As the noble Baroness, Lady Fox, implied but did not say, it is not only hyper-skeletal but hyper-political. It is political in a way which is dangerous, not least to the Government themselves. The clause we are debating does not say when or at what stage in the process Ministers would intervene and, if necessary, unilaterally set minimum service levels. Is it when a strike is first contemplated? Is it when the executive starts consulting its members? Is it when the members vote yes, in accordance with legal provisions? Is it when the first strike day is announced, or on the strike day? When is it? Either way, the difficulty is that in many cases, the Minister will be intervening unilaterally with a minimum of parliamentary scrutiny, and, as my noble friend said, there will already be jointly agreed minimum service levels. That is why it is dangerous to the Government: every dispute in which the Minister intervenes in this way becomes a political dispute.
We have spent years trying to take industrial relations out of politics, but this brings them right back in. A central feature of this Bill is that at any stage, the Minister’s own view can override all agreements and unilateral action by the unions to observe the health and welfare of the population at large and the minimum service level. That politicises industrial relations in a way that has not happened for many years. I hope the Conservative Party understands what it is doing in this respect.
The Bill is also unnecessary and political in the sense that the reason for it—which is largely coincidental—is that a number of different disputes have arisen at roughly the same time because of the cost of living crisis and the squeeze on public sector pay. The public are getting anxious about the situation and they see the Government are not able to resolve it, so the Government have invented this Bill. They want to use the period from now until the general election, which the noble Lord, Lord Balfe wants to jump, to tell the public that they have a solution to all this industrial unrest. But it is not the solution; it is a promulgation, if they are not careful, of that industrial unrest.
When I intervened at Second Reading, I told the Government that they had an alternative: they could sit down and talk, make a new offer and change things. At least somebody in government—albeit not universally—has listened to me or come to the same conclusion. As a result, the Government are now sitting down with the RCN, which they refused to do at one point. They have made a better offer to firefighters—or at least, the fire brigade’s executive thinks the offer could be referred back to its members. Even in some of the disputes involving the railways, the next period of strikes has been postponed because the employer or the Government have moved. That is the alternative to intervening unilaterally and politically, in a way which is very dangerous to this Government and to the rights of workers and trades unions. But think how much worse it would have been if, instead of making an offer to the FBU, the Government had taken a unilateral decision to make the present MSL irrelevant and to statutorily impose a new one, and if some firefighters or their representatives had been nominated in the employer’s work notice, been told they had to strike-break, and refused to. Workers would have been dismissed, becoming potential trade union martyrs, and the union could have been sued for vast sums.
If that happened, how would noble Lords imagine that trade union executives, and ultimately members, would respond? This measure, the ability to intervene in this way, will actually prolong strikes and create more strikes, not solve them. The Government are going to tell the country that they have the solution but they have the opposite, and it is time this Bill was withdrawn.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, I am grateful to all those who have contributed to this exciting—almost, in some respects—debate about the main issues we will discuss as the Bill progresses.
Let me start by addressing the point made by a number of noble Lords—including the noble Lords, Lord Collins, Lord Fox and Lord Hendy—on the report from the Joint Committee on Human Rights. Of course, we are grateful to the committee for its work, and, in the normal course of events, we will respond to the report in full. Let me say, before then, that this Government do consider that this Bill is compatible with the ECHR.
As the noble Baroness, Lady Chakrabarti, pointed out, on the introduction of the Bill I made a statement under Section 19(1)(a) of the Human Rights Act that the provisions of the Bill are compatible with convention rights. Indeed, I have to do so on all the Bills I introduce into this House, and I have been doing a lot of that recently. I say to the noble Baroness that this is a duty I take very seriously. I would not just wake up in the morning and sign a bit of paper. I respond to legal advice that I receive, as I do on every Bill, and I often go back and query that legal advice, because I take my duty to sign that statement seriously. I can tell the noble Baroness that I was happy to do so in this case, because I am confident that the Bill strikes the right balance between the ability to strike and the rights and freedoms of others.
It is a question of balance, and I am grateful for the comments from my noble friend Lord Henley, who is actually a member of the committee, in his helpful speech. As he pointed out, the report does not say that the Bill is not compatible with the ECHR. Regulations that set minimum service levels in specified services will, of course, need to be compatible with the ECHR, including Article 11, and the Government will ensure that they introduce regulations that are compatible. Obviously, failure to do so would result in a breach, and a court would be able to grant such remedy as it considers just and appropriate should a union or others take a matter to judicial review. I am sure there is a lot of thinking about that at present.
In response to the question from the noble Lord, Lord Collins, about when the provisions would apply, and the issue of retrospectivity, I agree with my noble friend Lady Noakes. It will of course apply only to future action. After Royal Assent, we need to lay the appropriate regulations, which would need to be approved by both Houses before the legislation can come into force.
The noble Baroness, Lady Donaghy, asked me whether employers can discriminate against trade union members when issuing a work notice, I am happy to confirm to the noble Baroness that the Bill is clear that employers should have no regard to trade union membership when they are issuing work notices.
Baroness O’Grady of Upper Holloway (Lab)
My noble friend Lady Donaghy also raised the issue of recommendations that refer to trade union activities. The real fear here is that a bad employer could use a work notice to victimise and discriminate against not only union members, which, as the Minister says, is covered by the Bill, but against elected union workplace representatives. I wonder whether the Minister can give us reassurance that moves will be made to ensure that that cannot happen. It clearly cannot be right that an employer could victimise elected union representatives in the work notice. We hope it would never happen, but we cannot rely on hope.
Lord Callanan (Con)
I think the noble Baroness was, in effect, asking me to consider amendment 4 from the JCHR, which is what the noble Baroness, Lady Donaghy, was referring to. I was about to come on to that. The noble Baroness, Lady O’Grady, is getting slightly ahead of herself. There are in fact later amendments, Amendments 27 and 28, tabled by the noble Baroness and the noble Lord, Lord Collins, that seek to achieve a similar effect to that recommended, and we are going to have a fuller debate on that in group 10. So, if the noble Baroness will forgive me, I will address those points in more detail when we get there.
To restate why this legislation is needed—because this has been a general debate—let me set on record the Government’s position that there needs to be a reasonable balance between the ability of workers to strike and the rights of the public, who work hard and expect their essential services, which they pay for through their taxes, to be there when they need them. The minimum service levels aim to restore this balance in order to protect the lives and livelihoods of the public from disproportionate impacts and results of strike action. This important protection should be afforded, in our view, to members of the public without delay, which is why we are opposed to the amendments seeking to delay the imposition of this legislation.
Amendment 1 seeks, in effect, to extend the impact that strikes can have on the wider public. It would ensure that strikes could continue for up to six months of the whole strike mandate period after the Bill comes into force without the relevant minimum service level being applied. Parties, including employers, unions and workers, will have sufficient notice of minimum service levels prior to their application via, for example, the consultation or parliamentary processes that will need to take place before those regulations come into force. So our view is that further notice is not necessary.
Amendment 50 seeks to delay commencement of all provisions of the Act, including the regulation-making powers, until two years after the day on which the Act is passed. My noble friend will be unsurprised to know that the Government do not support this amendment. Practically, the legislation will not take effect, as I have said, until the regulations are made to specify the relevant services that minimum service levels shall apply to and the levels of service that an employer can require its workers to provide in relation to strikes. This amendment would mean that the earliest point at which minimum service levels could be enforced in practice is two years after the Act is passed.
Amendment 51 would result in further delays that essentially duplicate the work and the report of the Joint Committee on Human Rights that has already been published, requiring yet another report before minimum service regulations are made. Again, we feel that this would be unnecessarily burdensome and serve no practical purpose, because these amendments would just delay the implementation of MSLs. I realise the Opposition would like to do that, but it is not the position of the Government. Therefore, we cannot accept these amendments, which, for no good reason or constructive purpose, would significantly extend the disproportionate impact that strikes can have on the wider public, on which lives and livelihoods depend. Therefore, I hope that the noble Lord will withdraw his amendment.
Baroness Fox of Buckley (Non-Afl)
I completely support the Minister’s aspirations for the public to be able to conduct their lives without disruption. They want to be able to use transport and health services. But when the minimum service levels are decided by whoever it will be—we are unclear—will the Government be penalising those employers who do not provide them on non-strike days as well? I just wondered. We do not know what the minimum service levels will be. If 50% of the trains need to run, that would mean all signalpeople would have to work. I would like to be able to use the same Bill to have a go when I cannot get a train, the ambulance does not come or what have you, but it is the fault not of the strikers but of the organisations or institutions. Can the Minister extend this Bill so that I can use it to sue the people who do not deliver the services I need to live my life?
Lord Callanan (Con)
The noble Baroness says that these regulations will be imposed by whoever feels like it. They will be imposed by this Parliament because we are consulting on minimum service levels in three areas that will be subject to regulations. Each sector is different, which is why we have laid some consultations on the regulations; we are interested in hearing views. Again, the noble Baroness is getting ahead of herself. The noble Lord, Lord Fox, has amendments in later groupings similar to what the noble Baroness wishes to bring about; perhaps if she restrains her enthusiasm, we will get to these points later.
Lord Collins of Highbury (Lab)
I just want to pick up the point about consultation. The Bill talks about six sectors but the Minister keeps referring to three consultations. Those consultations do not cover all the people in the sector who are referred to in the Bill. Can the Minister give us an idea of who in those six sectors will be consulted and when? We have had three consultations on a narrow element; not everyone in transport or health has been consulted, for example. Can the Minister give us a timetable and an idea of who will be consulted and when?
Lord Callanan (Con)
Clearly, the answer to the noble Lord’s question is that anybody can respond to the consultation. We have issued three draft statutory instruments in three sectors; we are interested in hearing responses from trade unions, members of the public, et cetera.
Lord Callanan (Con)
Can I answer the noble Lord’s first question before he asks me another? If we choose to move ahead—if the Bill is passed and the powers are granted—and we think it sensible to impose minimum service levels in other sectors that are allowed by the Bill, again, we will publish a draft consultation and people can respond to that in due course. The noble Lord has another question.
Lord Collins of Highbury (Lab)
I asked the Minister a specific question but I am afraid that he did not answer it. Do the three consultations that have been issued cover all the categories of worker within that sector, as mentioned in the Bill? If not, when will other people in that sector be consulted, and what will the timetable for the others be? My understanding is that not all transport workers have been consulted on that draft.
Lord Callanan (Con)
I am sorry if the noble Lord finds this confusing. On the sectors where we have introduced draft regulations—let us take the example quoted by the noble Lord of rail services—those consultations are in rail services. If other transport workers, in relation to whom we have not yet chosen to introduce minimum service levels, wish to respond to that consultation in generality, of course they can do so. We will take their interests on board.
Lord Collins of Highbury (Lab)
I hope that we will come back to this. I keep coming back to the words of the noble Lord, Lord Lisvane, which always echo in my mind: policy and legislation. We have legislation but no idea what the policy is. The Government have committed to consult. There are six sectors that will be affected by this Bill. The Government have started consultation only in small parts of those sectors. For example, in transport, they have consulted only on passenger rail, not on freight rail or buses or any other element of the Bill. When are those elements going to be consulted? When are the Government going to start launching that?
Lord Callanan (Con)
I am not quite sure what the noble Lord is saying. Is he saying that he wants us to introduce minimum service levels in all those sectors as well? If he does, I will take that comment back to the relevant Secretary of State; perhaps they will wish to introduce MSLs in those sectors as well. However, as the noble Lord has observed, the categories in the Bill are fairly widely drawn. In the short term, we, as a Government, have chosen to consult on regulations in those specific sectors. It may be that, in future, if Parliament grants us the powers, we will consult on additional regulations but, at the moment, we have no plans to do so. We have consulted on those three particular sectors.
Baroness Chakrabarti (Lab)
Can the Minister explain why this approach to the legislation was adopted? I know why I object to it. I know why the noble and learned Lord, Lord Judge, objects to it. I have a view about the importance of primary legislation. When people’s rights and freedoms are being constrained in this way, there should be foreseeability; by the way, when the Minister answered earlier on Section 19(1)(a) and how seriously he takes the obligation to make a statement on compatibility—I believe him—he did not set out his reasoning as to how this is in accordance with law in terms of foreseeability.
Pragmatically, I just want to ask him this: why was this approach adopted rather than the approach of formulating the policy in each area first? Frankly, purpose-specific primary legislation should then be brought to deal with a minimum service agreement in one sector that could not have been achieved by consent.
Lord Callanan (Con)
In some sectors, of course, some minimum service levels have been agreed by consent. We have said that, if that MSL is sufficient and we view it as adequate, we may choose not to regulate in those particular sectors.
With regard to Section 19(1)(a) statements, the Government do not comment on legal advice that they receive; that is a long-standing tradition for all parties in government. I can say only that I take my legal obligations seriously, as all Ministers do. I read the legal advice that I am given. If I have queries about it, I go back to the lawyers and ask them for further details. In this case, I was satisfied that the Bill’s provisions are compliant; therefore, as is my legal duty, I signed the declaration before the Bill was introduced to Parliament.
Lord Collins of Highbury (Lab)
We are going to return to these areas as we progress through the clauses.
I just want to return to my noble friend’s point; the Minister only sort of answered the question. This Government started off with a manifesto commitment and a pledge to introduce minimum service levels in transport. That has sort of disappeared. Now it is a broad power—so broad that we will have no idea of who will be captured by this primary legislation until we see secondary legislation, which we will not be able to amend or adjust in order to take other factors into account. The noble Lord, Lord Balfe, is absolutely right about what we have heard across the House.
I come back to the report from the Joint Committee on Human Rights, which states:
“The case has not been adequately made that there is a ‘pressing social need’ for imposing minimum service levels across the breadth of categories currently set out in the Bill. For example, the category of ‘education services’ is so broad that it might apply as much to private tutors and evening class teachers as to school teachers. Similarly, ‘transport services’ could include private taxi drivers.”
That is the point I am making: at what point will taxi drivers be next in line? The Government have these powers. We are giving them these powers. It comes back to Article 11. Surely, when we make laws, people ought to know how, or whether, they will affect them. We will not know that until a Secretary of State plants a statutory instrument; as the noble Lord, Lord Hodgson, said, such instruments are not fair because we will not be able to amend them. In his report to this House, the noble Lord, Lord Blencathra, criticised this method as being fundamentally undemocratic because, as he said, these are not technical issues; they attach to fundamental human rights. That is the opinion across the House. I beg leave to withdraw the amendment.
Lord Fox
Member’s explanatory statement
This amendment seeks to align the meaning of “relevant services” with the definition of “important public services” in existing legislation.
Lord Fox
My Lords, I beg to move Amendment 2 on behalf of my noble friend Lady Randerson, who is delayed on official business. After the preliminaries, I hope that we can start to get a little more specific. I would characterise Amendment 2 as a tidying-up exercise which I am sure that the Government will be happy to accept.
As we know, the Bill establishes a legal mechanism to implement minimum service levels when there may be strikes. It does so by amending the 1992 Bill referred to in this amendment, so that minimum service levels are one of the requirements before trade union action is protected from liability in tort.
At Second Reading, my noble friend Lady Randerson queried the list of public services on the grounds that they were vague and that some of them were provided by the private sector—for example, transport—and paid for by consumers, in contrast with schools and the NHS, which are provided by government money and free for the public to use. The Minister responded that the list was based on the Trade Union Act 2016. Page 3, line 22, leaves the definition of relevant services entirely in the hands of the Secretary of State—“Relevant to whom?”, one might question. This amendment seeks to align the meaning of “relevant services” with the definition of “important public services” in existing legislation and attempts to add precision by referring to that piece of well-established legislation, which comes with legal precedents and some understanding.
I suggest, particularly to this side of the House, that your Lordships would welcome anything which limits the amount of interpretative power that is left with Secretaries of State. Parliament should broadly welcome a tiny bit of specificity in the sea of uncertainty that this Bill creates.
I turn to Amendments 5, 11 and 12 in this group, and apologise for speaking before those who have tabled those amendments. These are the first in a series of amendments tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, in a strategy to remove all the services currently named in the Schedule from the Bill. In essence, this is an opportunity to speak about each of these groups separately to probe the Government’s view on how these sections will be viewed. While several groups have been separated out, this group includes three types of workers, as specified in the legislation.
To establish a frame of reference, it is worth reminding ourselves that, as the Library has helpfully noted, the Trade Union and Labour Relations (Consolidation) Act 1992 made it an offence to take industrial action in the knowledge or belief that human life will be endangered or serious bodily injury caused. As a result, we have seen several unions, particularly those represented in the NHS workforce, agree to provide life and limb cover during strikes. No doubt this will come up in later groups. There is no fixed definition of what this entails in practice, but recent examples have included negotiations to ensure that critical services could still run during the recent strike by paramedics and ambulance service workers. We will hear more of this when we debate the third group.
Under the provisions of the Civil Contingencies Act 2004, the Government also have general emergency powers that they can use when strikes seriously threaten people’s welfare. In such cases, a Minister may make regulations to protect or restore facilities for transport or health, for example, or to protect human life, health or safety. One of the preconditions for the exercise of this power is that an emergency has occurred. An emergency is defined as
“an event or situation which threatens serious damage to human welfare in a place in the United Kingdom, … the environment of a place in the United Kingdom, or … war, or terrorism, which threatens serious damage to the security of the United Kingdom”.
Amendment 5 seeks to exclude the fire and rescue service from the Bill. I have other things to say about the fire service in a later group, so I will refrain from speaking at length about it here. However, I ask your Lordships to remember that point about emergencies, because it will be very salient when we talk about fire and rescue services later.
Amendment 11 would remove
“decommissioning of nuclear installations and management of radioactive waste and spent fuel”
from the Bill. There has been no strike action in the nuclear decommissioning and waste management sector, and minimum safe staffing level agreements in the event of industrial action are in place in significant parts of the sector. The presence of this group in the Bill is a provocation rather than anything else.
Finally, Amendment 12 seeks to remove border security from the Bill. There are indeed issues with this service, and members of the Public and Commercial Services Union took strike action at various UK airports and seaports in December 2022. Further action has been announced and may occur later this year but, at a time when the Government are spending so much political capital on border controls, it seems careless to threaten the actual officers and employees that we have in this sector with the sack. The idea that we will improve our borders by firing the workforce we already have beggars belief.
I suspect that this will be a red rag to the ministerial bull but, as the JCHR puts it:
“Far from bringing the UK in line with other European countries, as the Government have argued, the Bill represents a significant departure from their practices where pay and minimum service levels are typically decided through collective negotiations and agreement”,
rather than being imposed,
“with disputes settled between trade unions and employers. Instead, the Bill makes no reference to collective bargaining nor does it subject minimum service levels to independent arbitration should it be necessary.”
This is the first of the groups on which we will have the discussions that focus on those issues.
Lord Hogan-Howe (CB)
My Lords, I apologise, as I was present but did not speak at Second Reading. Given that these amendments are around the list of relevant services and intend to reduce the list of affected services, I was surprised that policing was not included in the list. There is no definition of relevant services in the Act although, as the noble Lord, Lord Fox, said, emergency services are a clear criteria that has been applied. Given how policing has developed over the last few years, the decision about whether you have this Bill is, as the noble Lord, Lord Whitty said, a very political one. That is not something that I want to take a position on. My point is only that if you are to have a list, is it a comprehensive list and can this list be improved?
Over the past 20 or 30 years, policing has been more civilianised. Police officers have been removed from tasks for which they did not need powers, and more police staff—who were called civilians—have been employed because they did not need policing skills or powers and, frankly, they were cheaper. This has been a big push to make sure that the police get more efficient, and I support it generally. It is also true that the trade unions have had voluntary agreements to maintain good services throughout any industrial action, of which there were quite a few instances during my time in policing. Those systems have held, but the Bill addresses where those voluntary agreements do not survive. Therefore, I want to ensure that policing has been considered properly.
The ratio of civilian staff to police officers is about 3:1 around the country; for every three police officers there is one member of support staff. It is slightly different in the Met for operational reasons. The two areas where this ought to be considered seriously are forensic science provision and call handling. Nearly 100% of those who provide forensic science services are police staff, doing an excellent job. It is vital that you collect forensic evidence as soon as possible after the event. It is usually known as the golden hour; any forensic evidence will deteriorate. If you must restrict the number of scenes that you attend or the time that it takes to attend, it will have a significant impact, particularly for serious crime. This is probably swinging the lamp, but I would like to see the police investigate properly more volume crime by going to the scene and seeing whether there is any forensic evidence. We hear of too many instances where sadly that is not the case. That is what should happen. Clearly, forensic science is vital to that. I am afraid that there is no way that police officers can easily step into that field. Even if you could give them the skills, you cannot give them the experience. Just having the skills is not sufficient to make sure that you look in all the right places and in the right way.
Lord Collins of Highbury (Lab)
To pick up the point made by the noble Lord, Lord Hogan-Howe, what we are trying to probe here is why any category is within the ambit of the Bill and why they have been specified. We will come back to the specific amendments in the group, but the noble Lord asked a question worth remembering: is it proportionate and necessary to have the Bill, bearing in mind that we have arrangements for minimum service levels—we have called them a range of things and noble Lords have referred to them—and they work? The noble Lord referred to circumstances in which they have worked, so we come back to the question: what is the point of this Bill?
The noble Lord, Lord Fox, is absolutely right to ask—the noble Lord, Lord Balfe, said this too in his contribution on the previous group—why the very narrow, specific group,
“decommissioning of nuclear installations and management of radioactive waste and spent fuel” ,
has been included, given that there has not been a dispute or action that would require the Bill being applied. Surely we legislate for a reason. This highlights the fact that, as was said by my noble friends Lady Chakrabarti and Lord Whitty—whose contribution was absolutely right—we are increasingly seeing this as a political issue. It is not about resolving industrial disputes and providing support; it has another agenda.
On fire and rescue services, the Joint Committee on Human Rights mentioned the 2004 Act, and the Civil Contingencies Act also comes into play, where there are legal obligations. The Government have to understand that they are raising minimum service levels at a time when people in the public sector are striking because they are so concerned about the failure to meet minimum service levels. That is what doctors and nurses are worried about. I have heard from many nurses, including Members of this House, who have made that point—who would never have considered going on strike, ever. They made it very clear that, when they were in service, they would not have gone on strike, but they understand that the difference between then and now is in how nurses are valued, seen and even respected. That is the difference now. I heard the chair of the Police Federation make exactly this point on television. On the police not being able to strike he said that, when that was introduced, they were told that they would be compensated; it would be recognised that they had that obligation to serve the community. They do not feel that now, after a 17% reduction in their real wages. That is what people are really concerned about.
We are probing the categories that have been included because it seems so arbitrary. It comes back to the question of who is being consulted and when. It is not the six categories; it is not a broad range of people, even though the powers in the Bill will cover those areas. What is the minimum service level for border security? I hope the Minister can answer that. Is it a two-mile queue at Dover? Is it a completely blocked M20? Is it my having to wait three hours at Luton Airport because there was not sufficient staff? What is the minimum service level in those categories?
As it moves through Committee, I think the Minister will struggle to justify why the Bill is being introduced. It is a terrible Bill that does not do what it—supposedly—intends to.
Lord Callanan (Con)
I thank all three speakers in this debate. Amendments 2, 5, 11 and 12 seek to alter the sectors and services that are within scope of having minimum service levels implemented. Amendment 2 would stop minimum service levels being applied to education services for those over the age of 16 and rescue services in relation to fire and rescue services. Amendments 5, 11 and 12 would each remove one of the identified sectors from the Bill.
Amendment 2 specifically seeks to align the meaning of “relevant services” with the definition of “important public services” in existing legislation. The practical effect of this would be that minimum service levels would not be able to be applied to education services provided for those who are over the age of 16 and services which constitute “rescue services” in the context of fire and rescue. I am really not sure how that could work in practice, bearing in mind that the same personnel often provide the same services.
Strike action in these sectors has the potential for far-reaching consequences for members of the public who are not in any way involved in a dispute. This applies equally to education services for those aged over 16, as well as fire and rescue services, which is why they have been included in the legislation. In my view, it would simply not be right for students who attend a sixth form or further education college or university to be automatically ruled out of scope of minimum service levels while pupils aged 16 and under are not. Their education is no less valuable or important.
Additionally, there should be the potential for employers in the fire and rescue services to consider rostering staff to provide minimum service levels in response to road traffic incidents or in flood responses. Bizarrely, the amendment seems to be intended to prevent that. If you have a number of firemen on duty, those same firemen will be responding to house fires as well as car accidents, for instance. I do not see how there can be a distinction.
Let me also highlight what the legal ambiguity of this amendment could lead to. Subsection (4) of new Section 234B, as currently drafted, lists the key sectors that MSLs can apply to. There would then be a conflict between that section and the existing Section 226(2E) of the Trade Union and Labour Relations (Consolidation) Act 1992, over which the amendment would presumably seek to take precedence. On that basis, I therefore cannot support it. The Government will set out, via consultations, what services may be in scope of minimum service levels, just as the published consultations for fire, ambulance and rail services that we debated in the previous grouping have done.
On the remaining amendments, the key sectors outlined in the Bill stem broadly from the 1992 Act, as amended by the Trade Union Act 2016, as they have been long recognised as important for society to function effectively. As I have already said, strike action in these sectors has the potential for far-reaching consequences for the public. Fire and rescue services, as I said, routinely deal with emergency incidents that pose an immediate risk to the public, and strike action could impact on public safety. The Government take the same view that ensuring safety at nuclear sites is also of the highest importance, so it is right that nuclear decommissioning is within scope. Finally, without a permanent and skilled presence at the border, there is a significant risk to the security and prosperity of the UK. I will respond to the noble Lord, Lord Collins: of course, many other countries, because of the way that their border security is structured, actually prohibit strikes completely in border services, so we are not going that far.
The noble Lord, Lord Hogan-Howe, will know better than I do that some policing services are already restricted from striking. But I do take on board his point about the other essential elements of the policing service that relate to that.
Lord Callanan (Con)
Let me respond to the noble Lord, Lord Hogan-Howe, and then the noble Lord can come back. I will take on board the points of the noble Lord, Lord Hogan-Howe, inquire for more details from the Home Office, and come back to him in writing. I will now take the intervention of the noble Lord, Lord Collins.
Lord Collins of Highbury (Lab)
No-one disputes what the Minister is saying in terms of the importance, particularly with emergency services, of that requirement. Can he tell us what assessment he made of the existing legislation, both the Civil Contingencies Act and the 2004 Act, in relation to this? What we are debating is why the Bill is necessary. It is not clear that the Minister has made the case.
Lord Callanan (Con)
I accept that the Labour Party does not believe that we have made the case; that is why we are having this debate. We picked the sectors because they were broadly in line with the 1992 Act, but of course there are good cases to be made for additional sectors, as the noble Lord, Lord Hogan-Howe, has intimated—
Lord Callanan (Con)
We will take on board all of the requests for additional services to be included. Of course, we have considered the effects of existing legislation as well, but there is, apart from the bans in certain sectors, no other legislation in the UK at the moment indicating the provision of minimum service levels. We know that some minimum service levels are provided by agreement between unions in some areas, but not in others at the moment—
Lord Collins of Highbury (Lab)
Can I press the noble Lord? I think it is a fundamental point; he cannot just dismiss this with, “Oh, we did an assessment”. Tell us. The 2004 Act and the Civil Contingencies Act cover these areas. Why does he need this additional Bill in those particular sectors?
Lord Callanan (Con)
The Act does not cover minimum service levels in those sectors. I do not understand the point that the noble Lord is making. There are no minimum service level Acts in the UK at present; I think that in one of the contributions—it might have been the noble Lord’s—the point was made that MSL legislation does not apply in the UK at the moment. It is not something we have done previously, but we now consider that to be the case. I will take the intervention of the noble Baroness, Lady Chakrabarti.
Baroness Chakrabarti (Lab)
I am grateful to the Minister. I think the two points that are emerging, that I would be grateful for assistance with from the Minister, go like this. The first is that on one level, these six areas are very broad—this was highlighted, in a way, by the noble Lord, Lord Hogan-Howe. For example, “health services” is incredibly broad: everything from dental hygiene to ambulance services. Some of these things are potentially emergency blue-light services and some are not.
Lord Callanan (Con)
We do not feel that the Civil Contingencies Act gives us the power to impose minimum service levels in the sectors that we have identified, which is why we are seeking this additional primary legislation, but I accept that there is a balance to be drawn. Noble Lords have seen two elements in the debate today between certain Members who do not want the legislation at all and do not believe in the principle of minimum service or safety levels, as it has been referred to—
Lord Collins of Highbury (Lab)
It is not correct to say that we do not believe in minimum service levels or in protecting people—far from it. As my noble friend will say later, we have negotiated and achieved minimum service levels across the board. The noble Lord, Lord Hogan-Howe, mentioned the fact that they have been achieved. We are asking whether this Bill damages the co-operation and support for those minimum service levels. We think it will; it will harm the situation.
Lord Callanan (Con)
I think that comes down to the essence of the political disagreement, and maybe I was not exposing myself correctly, but certainly the Opposition disagree with the minimum service levels legislation. I accept that in some areas the noble Lord might believe in minimum service levels but, as I have said, if voluntary negotiations are in place in certain sectors, that is preferable to the heavy hand of legislation, and we accept that. However, in the case of ambulances, some unions in some areas have agreed minimum service levels and others have not, so we think it is right to have the back-up of legislation in case we need to reach for it, but we hope that we do not need to use it.
As I was saying in response to the intervention by the noble Baroness, Lady Chakrabarti, this is about the essential political balance and what services should be included. I think the noble Lord, Lord Hogan-Howe, makes a good case that policing services should be included, and I will get him a full reply on that. That is the essential political judgment that the Government took when we were drafting this legislation about what services should be included, but I accept that there is political difference of opinion. Some people think they are too broadly drawn, some people think they are not widely enough drawn and some Members think additional services should be included. I can present only the legislation and view that the Government took on this at the time.
With that, I have concluded my remarks in response to the group, so I hope that the noble Lord, Lord Fox, will feel able to withdraw the amendment he moved on behalf of the noble Baroness, Lady Randerson.
Lord Fox (LD)
My Lords, I thank noble Lords for their comments and speeches on this group. I think we are beginning to draw the lines a little more clearly. First, I am delighted that the Minister has come out as a bulwark against legal ambiguity. I will clean up our legal ambiguity by withdrawing Amendment 2 shortly, if he clears up his legal ambiguity by withdrawing the Bill.
Looking at the rest of the debate, I think I am beginning to see the problem, which is the difference between minimum service levels and emergency cover. Some of the services highlighted in this Bill are emergency services; they are services that you need in extremis. Some of them are in the Bill, and some of the ones that the noble Lord, Lord Hogan-Howe, mentioned are not. Some of them, particularly transport, are not generally services that you need in extremis. In that case, minimum service level is an appropriate term.
For the others, emergency cover is covered in the Civil Contingencies Act, and the trade union Acts of 1996 and 2002 are more appropriate. In reverting to the language of minimum service level when referring to services that are required in extremis, the Minister is accidentally or deliberately missing the point. I think we will come back to this on a number of occasions, so it would be helpful if the Minister can be persuaded to understand it, even if not to agree with it. On the basis of trying to bring us all together, I beg leave to withdraw Amendment 2.
Member’s explanatory statement
This amendment would remove “health services” from the Bill.
Baroness O’Grady of Upper Holloway (Lab)
I am speaking to Amendments 3 and 4 which are tabled in my name and the name of my noble friend Lord Collins. There are many across this House who believe that the Bill is undemocratic, unworkable and incompatible with human rights and international law, but I want to focus on the specific impact on health services.
The Bill would have huge negative consequences for our NHS and for all of us who rely on the motivation, commitment and morale of health staff. I am sure noble Lords are aware that the NHS workforce disproportionately relies on the labour of women, who make up 75% of staff, and the dedication of black and ethnic minority staff, among whom trade union membership is highest. No doubt we will get on to the equality impacts of the Bill, but it seems appropriate to start by quoting the Equality and Human Rights Commission’s observations on this Bill. It says:
“In the human rights memorandum that accompanied the earlier Transport Strikes (Minimum Service Levels) Bill … the case for the lawfulness of similar provisions was made partly by distinguishing the Bill’s transport-focused clauses from measures affecting other sectors, including health and education. In that document, the Government recognised the importance of existing measures to mitigate the impacts of industrial action in health, education and fire and rescue services”,
and that
“healthcare sector trade unions already provide ‘life and limb’ cover during strikes”.
Will the Minister explain exactly why, in such a short period of time, the Government’s position on the inclusion of the health sector has apparently somersaulted?
The commission also expressed the concern that the Government’s human rights memorandum makes no reference to Article 4 of the European Convention on Human Rights on the prohibition of slavery and forced labour. Given that health workers who do not comply with a notice to work would face the sack, I would be interested to hear the Minister’s reply to the commission’s concern about that article.
Many of us have previously questioned the deeply flawed evidence base contained in the Bill. The Government have repeatedly defended themselves by claiming that minimum service levels are mainstream in other countries, but the fact remains that the key question is not about the existence of minimum service levels—after all, we already have those in the NHS. The real concern is whether such arrangements are imposed by Westminster government diktat, as the Bill seeks to do, or are negotiated voluntarily by agreement; that individual workers who do not comply can be sacked; that all striking workers could be stripped of protection against dismissal if their union is deemed not to be taking these mysterious, undefined “reasonable steps”; that injunctions could be more easily issued to stop a strike; and that union funds could be even more heavily sanctioned.
Health unions believe that the Bill is a distraction from the real issues of severe workforce shortages, patient safety and decades of underinvestment across health and social care, especially in relation to workforce supply and retention. The sacking of nurses on strike, as the Bill provides for, will only make that crisis worse.
There have been many pleas from individual health professionals. One GP who wrote to my noble friend Lady Thornton said they witnessed daily the huge pressures facing the workforce, which is still tackling the pressures of the Covid-19 pandemic and the huge backlog of care that that created. Waiting lists have soared while their pay has been eroded. The Government said the Bill would help to ensure patient safety on strike days, yet they have failed to take action to address the workforce crisis in health and social care.
It is already an established principle that healthcare unions co-ordinate strike action in a way that allows critical services to continue, and existing life-and-limb protections exempt certain categories of staff from strikes. Instead of focusing on minimum service levels on strike days, the Government should be taking action to ensure that the NHS is safely staffed 365 days a year. Those are just some of the reasons why health staff on strike have received such strong public support. The latest YouGov poll shows that around two-thirds of the public support nurses and ambulance workers who have taken strike action.
The NHS has a long and proud record of social partnership which is at the heart of industrial relations in the NHS between employers and unions. Of course, that social partnership does not guarantee that differences of interest will not arise, but the Bill risks all that good faith and good will, and it is not just unions who are saying so. Noble Lords will be aware of the concerns of NHS Providers, which says it is essential that a focus on legislative change does not worsen industrial relations at a time when it is imperative that the Government and the unions get around the table to seek a resolution and avert further escalation and disruption to patient care. It believes that the Bill risks damaging the relationship between NHS trust leaders and their staff, and between trust leaders and local union representatives, at a particularly fraught time, without addressing any of the issues underlying current strike action or providing a useful alternative approach to managing service provision during periods of strike action.
Concerns have also been raised by large private companies operating in the health sector that currently do not know whether they are in or out. Many of those companies are concerned that they will be caught in the net of this Bill, and they would like to know if they are. Frankly, many of them are telling us that they would really not welcome what they see as unwelcome interference in their own industrial relations. We have to contemplate that there may be banned private sector employers operating in the sector that may be brought into scope for the purposes of the Bill.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, this is a convenient time to have a break.
Strikes (Minimum Service Levels) Bill
Thursday 9th March 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 97-I Marshalled list for Committee - (7 Mar 2023)
Lord Allan of Hallam (LD)
My Lords, I rise to support Amendments 3 and 4 in the names of the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady. First, looking at Amendment 3, which seeks to exclude health services altogether, I think the key question remains: who wants this legislation? As the noble Lord, Lord Balfe, who is not in his place, asked in relation to Amendment 1: who is asking for this power that the Government are legislating to grant them? We have the Health Minister in the Minister’s place. I hope he can inform the Committee which bodies within the National Health Service have been knocking on his door, asking to be given the powers that are set out in this legislation.
The noble Baroness, Lady O’Grady, quoted to us from the note that has been sent out by NHS Providers, which represents all the trusts in England, and it could not be clearer that not only is the legislation unwanted but it sees it as actively counterproductive to its efforts to work with the staff that it employs in order to deliver the service both on a day-to-day basis and during industrial action. We seem to be in a situation where the employers are saying that they do not want this, and the employees certainly do not want it, yet the Government are determined to stick their oar in and make a difficult situation worse. This potentially has significant short-term and long-term disadvantages that will be to the detriment of the health service.
I am sure the Government will say that this is about delivering health services to people in the United Kingdom, and we would agree that it is about that. The question is: what framework means that we are most likely to get those health services delivered effectively? It is one in which employers and employees are working hand in hand to deliver health services to people. It is not one in which we create artificial tensions between employers and employees, and it is not one in which we pass legislation and seek to impose measures that will increase those tensions and make things worse.
As well as NHS Providers, I have been contacted by a consultant who works in the health service, who said to me:
“Instead of focusing on minimum service levels on striking days, the Government should be taking action to ensure the NHS is safely staffed 365 days a year.”
We will come to amendments later on where we will talk specifically about that, but that is the prize—a 365-day-a-year service. That depends, crucially, on staff morale, staff recruitment—we all know that we have huge gaps right across the health service—and staff retention, which means making them feel valued. It certainly does not mean press-ganging them into working at times when they have exercised their legitimate right to withhold their labour because of an industrial dispute.
The consultant goes on to say:
“Instead of threatening workers and unions with heavy-handed tactics that put workers’ right to strike at risk, this means ensuring that there is meaningful engagement on pay and a commitment to enshrining and funding safe staffing. This would help stem the tide of doctors leaving the NHS every year for better jobs at home and abroad, in the best interests of the NHS and patient care.”
I asked the Minister this question at Second Reading; I will ask it again: is there anything in this legislation that the Minister can say, hand on heart, will help him and his department recruit more staff to the NHS and stem that flow away from the service?
On the specific consultations that the Government have put out, we now have one on the ambulance service; again, I have been talking to people who work in that service. First, I have to say that the consultation is one of those classics: if you ask people, “Do you want more or less service?”, who votes for less service? When the Government ask, “Do you want category 1 and category 2 or just category 1?”, I think we can reasonably predict the answer. But the consultation does not ask, “Do you want the Government to come to a fair settlement with ambulance workers so that you can have categories 1 and 2 all year round, delivered to a level of performance that would be a significant improvement on today’s level?” I think the Government would freely admit that they are failing on both categories today; again, we have to ask whether anything in this legislation will improve the service delivered by the ambulance service. There is nothing there.
The ambulance service points out that, if you include categories 1 and 2, that covers pretty much the entire service. It is pretty much business as usual that the Government are consulting on. In essence, they are asking, “Should we prevent ambulance workers going on strike?” That is the net effect of saying that the minimum service level is the entire service. Again, I think that there is some confusion there.
The ambulance service also points out that the Government are, in part, driven by the fact that they are failing to meet their targets. Now they are consulting on what should be in categories 1 and 2, so we may end up consulting on a minimum service that will itself have to change as the Government change their definition of what constitutes categories 1 and 2 because of the pressures on the ambulance service; for example, there are suggestions that some people may no longer be categorised as category 2 until a further assessment of their needs has been made. Again, we are consulting on something that may move as the consultation progresses. We have a problem both with the generality of the health service being included and around the specifics on the ambulance service.
I want to raise one further issue, which relates to the speed with which the legislation has been introduced. I am not a civil claims lawyer but I know that their job is to pursue all possible angles in favour of their clients. We also know that the NHS is already paying out more than £2 billion a year in compensation claims, including claims made for failures to deliver on the agreed levels of service for ambulances and emergency care.
This legislation could change that landscape in several ways. First, if the minimum service level has been defined yet there is still a failure, there will potentially be a claim against the Government who set that minimum service level. If I am a claimant lawyer, I am going to go for every angle; one of the angles is to say, “The minimum service level was insufficient so I am going to try to drag the Government into the case”.
If the minimum service level was set but the work notices were insufficient, I would go after the trust and try to bring it into the case, saying that the only reason my claimant suffered was because the hospital trust failed to deliver sufficient work notices. Even the existence of this law could fundamentally change the landscape for those claims. If you fail to exercise that law, which the Government keep saying is a measure of last resort, claims could come in to the effect, “You had a law for minimum service. I suffered at the hands of the NHS because there was no minimum service level in place, but the Government could have done something because the legislation was there”. I see the noble Baroness, Lady Chakrabarti, nodding, which is encouraging given her legal experience.
I hope that the Minister can say in response, “We’ve worked all this out, don’t worry. When we drafted the legislation, we figured out the effect of having law on minimum service levels, questions around work notices of minimum service levels and how the responsibility of the Government, the trust and others would factor into the landscape of compensation claims once all this has occurred.” I fear that the Minister may not have all that to hand and, frankly, that it has not been done. This is another example of what happens when you rush legislation. There are all kinds of consequences to this Bill because it was not introduced in a thoughtful, careful manner but to fill a government communications grid: “We have strikes; we want to show that we are doing something for the public; we will bring this in.” The health service element creates more questions than answers. I appreciate that the Labour Front Bench has tabled amendments that would remove that.
Amendment 4, which lists the different professions that might be expected to be included, is also interesting. The noble Baroness, Lady Chakrabarti, mentioned earlier that we need foreseeability. The fact that there is no foreseeability in a phrase such “health services” makes it hard for any of us, and certainly for those professions, to understand whether they are in or out. I suspect that the Government will say that where the Opposition would exclude a list of professions, they would include it. Even that would be better than what we have today. If they do intend to include physiotherapists, pharmacists and other workers in the legislation, they should list them in the Bill.
It is not acceptable to use a phrase such as “health services”, which does not inform those hard-working professionals. There is not one profession on that list that does not have a staff shortage right now. We have this list of professionals, but we do not even have the decency to say to them in the legislation, “By the way, at some point you may be subject to minimum service levels being imposed and work notices being sent to you as an individual professional in that job.” We leave it open. We leave it for them to guess.
Both amendments make sense, in that they test the Government’s rationale for including health services and they have thought through the implications for health services in the longer term and try to get more predictability and certainty. If a particular group of professionals are to be included, let us see them in the Bill rather than just saying, “Well, ambulance workers, yes, they’re clear; but for the rest, maybe, maybe not.” That is not good enough when we are talking about people’s essential rights and things which may affect them personally, as they will be press-ganged into coming to work against their wishes at some unknown future date.
Baroness Noakes (Con)
My Lords, the noble Lord, Lord Allan, says “Who asks for this Bill?” He then tries to portray that as a binary thing—either workers and unions, or employers, claiming that neither of those groups wants it. However, he and others who oppose this Bill are missing out on a crucial third group: the users of services. This is the Government acting on behalf of the users of services generally. By taking the power to create minimum service levels, they are giving themselves the power to act for the users of services if the need ever arises. Broad terms are used to allow the detailed minimum service levels to be devised within that. Obviously, when regulations are produced they must be very precise, because they will affect whether individual workers will have to comply with work notices.
I should also say that no employer is ever forced under this legislation to issue a work notice; it remains entirely voluntary. Noble Lords should start to see the Bill in a much broader sense, rather than that of trying to create yet more disharmony between employers and their workers.
The Lord Bishop of London
My Lords, I rise to speak to this group of amendments on the inclusion of health services in the Bill. I am sorry that I have not been able to speak before. I declare my interests as set out in the register.
I have been a union member. I joined as a nurse—and as an NHS manager and a civil servant in the Department of Health—because I wanted protection. The relationship with unions was critical; it was the way in which we improved patient care. One of my overall concerns about the Bill is that it has the potential to break down the relationship which is so vital for patient care, as the noble Baroness, Lady Noakes, said.
I am grateful to the Royal College of Nursing, which has helped me in considering the Bill. I am sure that it will not surprise noble Lords to know that it does not support the Bill, for what I see as some good reasons: not least because it curtails the freedom to participate in what otherwise is lawful action.
My right reverend friend the Bishop of Manchester regrets that he cannot be here, but he shares my concern that far too much power is given to the Secretary of State in what we have already heard is only a skeleton Bill, and that there is a complete lack of clarity about how it could be used. It is open to abuse. I am surprised that, as many others have said, the detailed policy that becomes legislation is not there. I am concerned that those who work in the health service probably cannot see whether they are in there or not.
I support the noble Lord, Lord Allan, and the noble Baroness, Lady Chakrabarti, regarding the definition of health services. It is such a wide definition that leaves it to the imagination whether you are covered by it or not. I do not believe that this is for the professional groups, but for the individual. I am also very conscious that we have talked a lot about trade unions, but the health service is about individual nurses, doctors, health visitors and midwives who seek to do their best for patients. One of my great concerns is that the Bill could lead to the sacking of staff for taking what otherwise would be seen as lawful strike action. They are the nurses, midwives and doctors whom we can ill afford to lose.
As has already been said, the reality is that those who work in the NHS do not take strike action easily. They choose to do it only because they are frustrated that their voices are not being heard when they express their concerns about patient standards, workforce levels, recruitment and retention, and the role that fair pay plays in this. In September, the Nuffield Trust reported that 40,000 nurses left the profession last year, and we are still waiting to see the arrival of the workforce plan. Meanwhile, healthcare workers are spread more thinly, at the expense of their mental health and well-being.
It is amazing that the legislation talks about minimum service levels, yet this Government resist setting minimum standards for nursing and other health professions. If we want to ensure standards of patient care throughout the 365 days of the year, the focus should be not on banning strikes but on getting in place minimum staffing levels to ensure that quality patient care is given. For the Government to fire anyone using strike action when they try to raise a concern about the conditions set by the Government is ridiculous and undermines the dedication of staff in the NHS.
I have a question. Rather than passing the Bill, should the Government not be spending more time listening to and addressing the concerns of healthcare staff, to hear the solutions they believe they have to ensure that patients get the care that they require?
Finally, the other concern that has been raised is around trust and staff morale. The reason staff in the health service are striking partly relates to morale, and also to trust. I am concerned that the Bill will undermine the trust that is there and further undermine morale. We saw something of that trust undermined when this Government were seeking for healthcare professionals to be double-vaccinated against Covid. Although I am a great supporter of vaccination, we were heading for disaster. I am concerned that the Bill undermines trust and morale. What risk assessment has been made of the effect of passing this Bill on staffing levels of the NHS in particular?
Lord Hendy (Lab)
My Lords, I have the honour to serve on your Lordships’ Delegated Powers and Regulatory Reform Committee. As noble Lords will know, in our 27th report we dealt with this particular Bill.
There is an issue which arises in relation to these two amendments. I would like to read to your Lordships just three paragraphs from our report. Paragraph 17 says that
“the Government are ‘of the view that the detail required to set the level of service for each relevant service is not appropriate for primary legislation’. But the Memorandum does not explain why setting out any detail on the face of the Bill would be inappropriate. Parliament is not allergic to matters of detail, particularly where it relates to an important matter such as the right to strike.”
Paragraph 19 says:
“The Government have chosen to put no detail in the Bill in relation to minimum service levels, leaving the matter entirely to regulations. Important matters of detail should be included on the face of the Bill, perhaps with a power to supplement those matters in regulations.”
At paragraph 23, in conclusion on this aspect—there are other aspects to be dealt with—we say:
“Given the absence of an exhaustive or non-exhaustive list in the Bill of the matters that can be included in regulations, the unconvincing reasons for this power in the Memorandum, and the absence of indicative draft regulations illustrating how the power might be exercised, the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels in new section 234B(1) of the 1992 Act is likely to be exercised. In the absence of a satisfactory explanation, we regard the power as inappropriate.”
I looked at the consultation paper that emerged in relation to health services, which has already been remarked upon. It is confined simply to the ambulance service. I looked to see what the criteria for setting minimum service levels might be. I can see that, right at the end, there is half a page suggesting to consultees that they might wish to specify category 1 and/or category 2, and that in respect of one service they might be favourable to a percentage of the ambulance service being carried out. But there is nothing, as far as I can see—the Minister will correct me if I am wrong—to indicate what the metrics are. What are the factors to be taken into account in setting minimum service levels?
This is not just for the ambulance service. As has already been remarked, in Amendment 4, my noble friends set out a whole list of potential categories of worker in the health service—and very diverse it is too. What is it that the Government have got in mind to formulate the way in which the minimum service levels will be articulated in respect of each of these trades, professions and subcategories of worker? That is my question to the noble Lord.
Lord Prentis of Leeds (Lab)
My Lords, I support Amendments 3 and 4 in the names of my noble friends Lord Collins and Lady O’Grady. Noble Lords will know that I have already expressed my opposition to the Bill and, in particular, my opposition to skeleton legislation such as this, which gives Ministers unfettered powers to amend, repeal or revoke, calling into question parliamentary scrutiny, which matters.
Amendments 3 and 4 relate to health and would remove health services from the Bill. Quite simply, this Bill has the potential to wreck the partnership working that has been the bedrock of industrial relations in our NHS over 70 years. The workforce is 75% women, as we have heard, and 29% ethnic minority. In relation to health, the Bill is rushed. It is deficient to its core. It weakens protections against unfair dismissal. It flies in the face of ILO labour standards, and it could violate the Human Rights Act. Much of the Government’s argument rests on the ambulance service, which has just been mentioned.
In November, the Government praised the NHS, stating that important factors exist to mitigate the impact of industrial action in that sector. It was put forward as a really good way of working when it comes to industrial action. But by January, the same Government said that ambulance workers had refused to provide a national safety net. What an about-face in only six weeks. Why did it happen? What had been discovered that was not there before? Nothing could be further from the truth. Unions and staff representatives reach direct agreement with their employers. They do it before any action is taken, not on the day. It includes call volumes, rapid mechanisms to bring staff in if needed and constant contact with management. They reflect local circumstances. I do not know how many people have seen the folders of procedures—I would love to give a copy to the Minister—but they are not just two or three pieces of paper; they are whole folders of procedures. The Minister said that a number of ambulance trusts stated that they were not getting agreements to enable them to be satisfied. Where are those trusts? We asked employers which trusts are not happy, and said that we would talk to them, and we were told in no uncertain terms that they did not know where the information had come from.
Looking at, say, the ambulance service, and at whether it needs this additional restriction on taking industrial action, I am not too certain why this should be the case. The Government criticised ambulance workers for guaranteeing only category 1 999 calls. This is misleading. Calls in category 2 are answered if the call has been put through by a clinician, and usually only half of category 2 calls are an emergency. The Government have run two successful pilots where category 2 calls have been directed to alternative services rather than being dealt with by the 999 system. So why does this Bill call for 100% answering of 999 calls—the so-called minimum standard—when in 2022 the figure answered on a normal day was 77% and in 2017 was only 76%?
Baroness Chakrabarti (Lab)
My Lords, it is with a heavy heart that I welcome the Minister—the noble Lord, Lord Markham—to this Committee. That heavy heart is for a few reasons. The first is that in his time in your Lordships’ House I have found him to be one of the kindest and least combative members of the Government, so I can only imagine what he feels about applying this kind of approach to industrial relations in the health service.
That takes me to my second real regret about this aspect of the Bill. Of course I find the Bill objectionable per se, but I find it particularly distasteful in relation to health services. That is because these people have been the heroes of the pandemic. I am personally embarrassed that it feels like a very short time ago that I was standing with my neighbours, practically in tears, bashing pots and pans in gratitude to these people. We in this House are now talking about imposing minimum service levels on them, as if that is necessary.
What is more, some categories of these health workers are highly regulated and ethical professionals. Even outside pandemic circumstances, we all put our lives and those of our loved ones in their hands. We trust them to do things that we do not understand: that is the level of trust that we have in these people. It is, in the words of the right reverend Prelate, a terrible statement of a lack of trust—it undermines a sacred trust—for politicians to be inflicting this on these highly ethical health workers. I really wonder, if we were to have a focus group or a poll of the public, and measure the trust index of different categories of people in public life and in different professions, where nurses, doctors and other health workers would sit, compared to—dare I say it—lawyers and politicians.
That takes me to a further regret, which was put so well by the noble Lord, Lord Allan of Hallam, who, if he is not careful, is going to be competing with his noble friend Lord Paddick for who is the most legally literate non-lawyer. He hit on a very important point that is specific to health services: the litigious possibilities. In relation to the Bill more generally, we have already touched on the dangers of litigation in relation to whether the Secretary of State chooses to make regulations in an area or not. Some people might seek to challenge the making of regulations but, of course, there is also the possibility of judicial review by other groups of the Secretary of State not making regulations. This will come whenever something is effectively delegated to executive discretion. That executive discretion can be subject to judicial review and litigation. Governments of both stripes get annoyed with judicial review, but there it is: it is part of our rule-of-law system in a constitutional democracy.
In addition to that potential for litigation, we then have the negligence lawyers. As the noble Lord, Lord Allan of Hallam, put it so well, we now have oceans of possibility of claims made against particular employers for potentially not issuing these notices in circumstances in which they did not think it was necessary. To be in hospital is to be sick, and there will sometimes be bad outcomes, and we now have this new possibility for litigation about the extent to which issuing or not issuing work notices may have contributed to your loved one’s demise. That needs to be considered.
The Minister was not here during debate on the earlier group, so to help him out I say that he could borrow the script of his noble friend Lord Callanan. In relation to some points, he said, “I can’t explain this point to you because, of course, it is legal advice that I have taken; I’ve taken it very seriously but I can’t tell you what’s in the legal advice.”
When other points were put to the ever-resilient Minister, the noble Lord, Lord Callanan, he said, “The reason why this is in and that is out is a political decision”. It is either legal advice, which he will not comment on, or a political decision as to why these categories are so broad—or why there are six of them and not seven. If we wanted more, he was saying, the Government would give us more, but they would not give us fewer. The point is not about the length of this list of services but about the precision and rationale that went into making these choices.
The noble Baroness, Lady Noakes, says that it is all very well talking about the unions on the one hand and employers on the other, but I think she said that the Government are taking powers for themselves to act on behalf of service users. There are two points there: one is that when we talk about as many people as we are in the context of providers of health services, that is a lot and they are service users and providers at the same time. But the other, which was the crucial element in her remarks, is that the Government are taking powers for themselves. They should not be doing so. If legislation is truly necessary in relation to health services or anybody else, it should be for Parliament to have a Bill before it that is specific enough to provide foreseeability, in accordance with the law, and therefore comply with convention rights.
In the end, I have to hand it to the right reverend Prelate: the issue is about health services being too broad. As my noble friend Lady O’Grady of Upper Holloway asked, will it cover Amazon? I look forward to the answer on that because it would be pretty sweeping and concerning if it did. “Health services” is broad; it is not precise as a concept. My real sadness about health services being attacked in this way is the issue of trust. The Government should be building trust, post pandemic most of all, between people and vital healthcare workers and not undermining it.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
I thank the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, for their amendments. I also thank the noble Baroness, Lady Chakrabarti, for her kind words.
Amendments 3 and 4 seek to remove the health sector and health services from being within scope of having minimum service levels implemented. As my noble friend Lord Callanan said earlier, the key sectors outlined in the Bill broadly stem from the 1992 Act, as amended by the Trade Union Act 2016, as they have long been recognised as important for society to function effectively. Strike action in some areas of health services can put lives at risk or cause serious harm to patients. As my noble friend Lady Noakes rightly pointed out, it is about protecting the patients; that is why we have brought this provision. It has the potential for far-reaching consequences for members of the public who are not involved in the dispute. That is why we are looking to include the health services within the legislation.
I will try to answer some of the specific questions from the noble Baroness, Lady O’Grady, the noble Lord, Lord Allan, and others on why we are including health in the minimum service levels. We need to point only to recent experience in the ambulance negotiations, where there were concerns that many trusts were not sure, right up until the night before, whether derogations would be approved. The thinking behind the need for consultation was that we can have that certainty.
At the same time, the nurses’ and the doctors’ unions said, in their recent strikes, that they would not cover A&E. In those circumstances, noble Lords must accept that there was a real possibility of not being able to provide A&E services, which would obviously threaten the lives of patients. That is why we feel the need to put those protections in the minimum service levels. However, the most important thing in all this is that the Bill is just enabling legislation; our sincere hope is that it is never needed.
Lord Allan of Hallam (LD)
On the recent actions, the Minister talked about how often discussions went to the wire and agreements were reached the night before. Are there any instances he would share with the Committee in which the cover of the voluntary arrangements actually failed, as opposed to going to the wire but getting there in the end?
Lord Markham (Con)
We absolutely try to guard against that possibility and get there in the end. The sincere hope is that none of this is ever needed but, as both the nurses and the unions are saying that they will not provide A&E cover—we are seeing a lot of dates where there might be strike action by more than one union at the same time—I think all noble Lords can see a real possibility that A&E services could not be provided in those circumstances. It is those aspects we are trying to protect here. The hope is very much that it is never needed because the trusts, as has happened to date, will be able to put in place the right voluntary agreements. That is the purpose behind this.
I will try to answer the questions raised by the right reverend Prelate the Bishop of London, the noble Lord, Lord Prentis, and others, about trying to undermine the trust between the hospitals, in this instance, and employees. I go back to the position that it is for the trust to work with local unions to work out what the best level is, in the hope and knowledge that this will probably never be needed. It is just enabling legislation because we can see that there are circumstances, as I mentioned before, where it might be needed.
I will try to answer some other questions. On the point about the treatment of devolved Governments, I go back to the point of it being up to individual trusts.
Lord Collins of Highbury (Lab)
Before the Minister moves away from the trust issue and the point made by the right reverend Prelate, does he think that the threat of this law will impact trust and confidence in the current arrangements? Does he sincerely believe that the threat being introduced will not impact that trust?
Lord Markham (Con)
I believe that the principles are there in the derogations. Again, I believe no one wants to see any circumstances where there is a threat to life. That is felt uniformly by all of us and everyone in wider society. At the same time, the point I made is that, if you have nurses, doctors and ambulance workers all on strike at the same time and all saying that they are not going to provide A&E cover, we can all see the very real prospect that that is going to be a threat to life and limb. Those are the circumstances that we are talking about.
To answer the question from the noble Baroness, Lady O’Grady, if a trust within a devolved Government does not want to take this up, it does not have to. In exactly the same way, a trust in England does not have to take this up if it does not feel that it is needed, but it is there as a last resort.
To further answer some of the questions on whether that could involve private companies, maybe the best example is the case of the train services. That is obviously a different aspect of this, but in some areas of health we know that we are moving towards a digital world. As the noble Baroness knows, it is something I am personally responsible for. We can see digital services being the backbone of the health service more and more. In some cases, their ability to be there will be vital for the protection of life and limb. These may be unlikely circumstances but, in all honesty, I can see circumstances where that would need to be involved if it meant that there was some risk to life and limb.
Lord Fox (LD)
I have not been participating in this group, but I have been for the rest of it. I am intrigued by that answer. I am wondering how a private company would know that it falls within the remit of the Bill. Is the first time it would find out when it is required by the Government to deliver a work order to its employees? Will there be some other form of formal notification that may fall within the ambit of this legislation when it commences?
Lord Markham (Con)
I thank the noble Lord. This again relates to consultation. In all of these circumstances, for services that we think could be critical, we would go through the 12-week consultation process, followed by the 12-week implementation period. That is how the private company in this example would know there was a possibility of becoming involved in this, and there would be the consultation process to consider the matter fully.
On whether this is compatible with Article 4, again, we are talking about only circumstances where people potentially going on strike would cause a threat. We have circumstances like that already: the police and the military are not allowed to strike, and it is not considered that that conflicts with Article 4. So I do not think there is a read-across in the same way—
Lord Collins of Highbury (Lab)
In the two cases that the noble Lord mentioned, commitments were put in place for both the Army and the police. Does he think that those sorts of commitments should be given to our health service workers, who delivered a lot during the Covid epidemic, as he knows?
Lord Markham (Con)
We all agree that they did a huge amount. I do not think that there is a particular difference in circumstances: the principle behind the derogations today is to provide that life cover. That is absolutely there, which is why the hope and the thought is that this legislation might never need to be used. As I said, it is very much a back-pocket thing because, in the circumstances described today, it has managed—
Baroness Chakrabarti (Lab)
“Health services” need not be as broad in the Bill. In his gracious response, the Minister talked about the life and death level of risk. If that is the case, why should the provision not be narrowed from “health services” generally, which is incredibly broad—it covers everything from dental hygiene to nutrition advice—and tightened to the life and limb cover he refers to?
Lord Markham (Con)
We are talking about the absolute minimum services. As I said, we had the consultation process. Clearly, we would be saying that this is an area where there is a real concern over the risk to life and limb—that would not apply to some of the noble Baroness’s examples—and we would then go into the 12-week consultation period to work through that. The burden will be very much on us to show that that risk to life and limb absolutely is there, because that is that principle behind all of this.
Lord Collins of Highbury (Lab)
So is the noble Lord saying that those are the circumstances in which the powers in the Bill would be introduced? If so, can he explain passenger transport to me?
Lord Markham (Con)
I am well versed only in the area of health, and I will defer to my noble friend to deal later with that. I am replying specifically on health.
Lord Fox (LD)
The Minister needs to understand that we are taking the whole Bill in this Committee, not just the health part—we are thankful that he has come to speak to that part. But we are trying to understand how we have train services at one end and resuscitating people on the verge of death at the other, and we are trying to find a common legal structure that fits them all. Does the Minister agree that there is a big difference between the minimum service level on a commuter line from Croydon and the minimum service level in an accident and emergency hospital? Can he explain how we are supposed to square those two issues within the framework of this legislation?
Lord Markham (Con)
I thank the noble Lord. I believe that there will be a group of amendments specifically on transport later on. That will be the opportunity to answer those questions. I have been drafted in—dare I say it—at the last moment, because it is a very important issue and I wanted personally to talk about the health aspects, which I am attempting to do, so please forgive me if I try not to stray into other areas. There will be the opportunity to discuss transport later on.
The noble Lord, Lord Allan, asked who wants this. It is a backstop power. Trusts will never need to use it if they do not want to. I believe that most trusts, and I hope all, have excellent relations and are able to make sure that these provisions are never used or needed.
Lord Allan of Hallam (LD)
It is helpful having the Minister here—we appreciate it—because he will be responsible for those health trusts. I am cautious about the notion that it is a backstop power. It is something that the Minister repeats often, but is he concerned that there will be pressure either for the legal reasons that the noble Baroness, Lady Chakrabarti, and I have outlined—that there will be judicial processes that force trusts to think that they have to impose a minimum service level whether or not they want to—or just political pressure? The Government have brought this legislation in. If trusts say, “Look, we don’t want to impose this, because we think it is bad for our area”, are Ministers really going to sit back and say, “Fine, we’re not going to bother”?
Lord Markham (Con)
As I answered earlier on the devolved Governments, by definition, we accept that different trusts have the ability to work out what is best for their own area. Clearly, devolved Governments will each have their own opinion on how they want to act. The same principle exists in each place. We are not saying to each trust, “Thou shalt enact it in this way”; we are just giving those backstop powers. The most important thing here, which I think we all agree on, is for there to be the ability in all circumstances to protect life and limb. If doctors, nurses and ambulance crews all go on strike at the same time and say as part of that that they do not want to provide A&E cover, that is a circumstance where we are not able to provide those minimum services. I think that most fair-minded people would conclude that there is a risk to life and limb in that case.
The points made about civil claims—I know that they are very much the concern of the noble Lords, Lord Kakkar and Lord Patel—will be addressed in considering later amendments.
Lord Thomas of Cwmgiedd (CB)
I want to take up the Minister’s point in relation to devolved Governments and health services. As I understand him, assuming the Bill goes through and the Secretary of State for Health decides that there is to be a minimum service level, that does not compel the Governments in Scotland and Wales to adopt it; it is completely voluntary for them, just as it is for trusts. Have I understood the Minister correctly? If neither trusts nor the devolved Governments are in any way bound to impose this, it seems to me a matter of such importance that it ought to be dealt with by specific provision in the Bill. Otherwise, one will have problems for the future. The last thing we want ever to do is to have to rely in any actions that follow on an assurance given in this House—not that I am doubting it for a moment; it is just a question of clarifying how this works. It is a matter of such importance that it must be clarified. The Bill can easily be amended to make it clear, both in respect of devolved Governments and of health trusts, that these are the standards set but the devolved Governments do not have to impose them.
Lord Markham (Con)
Again, my understanding is that there will be later groups of amendments where we will talk specifically about the devolved Governments, so there will be further opportunities then to discuss this matter. However, on the principle the noble and learned Lord raises, we are setting down, in consultation, what we think the minimum service levels need to be to protect life and limb in these circumstances. In the case of ambulances, which was mentioned, that covers the ability to answer 999 calls, to categorise whether it is a category 1 or category 2 call—by the way, we are not seeking to change the definitions of category 1 and category 2—and to ensure that those calls can be answered, because they are life-threatening circumstances. To enact that, it is up to the employer—in this case, the trust—to work with local unions to ensure that it is in place, and how trusts decide to do that is up to them. It would be fantastic if they never needed to refer to that, but we, the Government, want to protect these circumstances so that we will not have occasions when A&Es are unable to operate.
Lord Thomas of Cwmgiedd (CB)
It may be that we need to go into this matter in some more detail, but what concerns me is this: I do not really know the detail of health law but let us assume that trusts are under a legal duty to carry, and to provide for, hospital services. So I assume that the Minister is saying that, as this goes forward, there will no comeback from the Government on a failure to exercise a legal duty to follow that, if they decide, “No we don’t want to impose this”. There will be no comeback, because it will be up to them.
This becomes very important when one turns to the liability of trade unions, because if a liability is imposed on the health trust for failing to comply with minimum standards, and it does not do so for various reasons, is there any consequential liability to the trade unions? This is quite a difficult and important subject, but for the devolved Governments, and, in this case, for health trusts, it is critical to know to what extent they are bound, when they take a different judgement on how to deal with the strike, to follow the minimum standards established by the Government. It is a critical question, and I do not want to be unfair to the Minister by making an intervention.
Lord Markham (Con)
I thank the noble and learned Lord for his comments. As I have said, in these circumstances we are talking about putting in place those minimum service levels for the trust to be armed with and to be able to enact. We are not trying to put in place any legal framework that we can use to go back and sue the trust for not holding to it, and we are not trying to put legal obligations on the trust to do it. Instead, we are trying to give an enabling ability, to be used only, as I said, as a backstop in these circumstances, and with the hope that they will never need to take that forward.
Baroness Chakrabarti (Lab)
I appreciate that the framework of the Bill as a whole is not the Minister’s responsibility; he is in Committee to talk about health services in particular. So I will ask him a question specifically on health services. Given his very clear answers that he anticipates the life and limb health provision being a matter only for the Bill, would it not be wise, advisable and appropriate for the reference to “health services” in the Bill to be tightened, so that it is clear that the regulation-making power is only about the life and limb provision he has talked about so extensively and explicitly?
Lord Markham (Con)
Again, I believe that it is trying to work off the 1992 definitions and work. The beauty of these debates, as I have come to appreciate about the House of Lords and the job that it does, even in the short time that I have been involved, is that they make sure, through this good critical challenge, that we can ensure that the legislation is doing exactly what we want it to do. We need to make sure that we get those definitions correct and, clearly, the beauty of where we are at this stage is that we have that ability. I thank noble Lords for that, and I hope that they can see by my responses that this is something that I want to make sure we get right.
I am glancing through the remaining questions—but I hope that I have answered the substance of the questions.
Lord Allan of Hallam (LD)
I appreciate the Minister taking so many interventions. On the question of whether the Government have done any modelling, when they did their analysis of the legislation, was any modelling done to try to understand the potential impact on legal liability, civil claims and claims against the NHS for compensation? It would be helpful for us to have that information, because it will be a material factor as to whether a trust, as the Bill says “may” issue work orders; it says “may” rather than “shall”. Whether the trust feels that it can exercise that discretion will depend very much on whether it is incurring additional legal risk. If there is material on that, it would be helpful for us to have it as we go through the scrutiny process.
Lord Markham (Con)
First, yes, that has been worked through on this. Secondly, that is one of the purposes of the consultation. Thirdly—this is the point that I was about to make—as the noble Lord will know from my contributions, I always like to follow up in writing when there is a detailed question. If I have missed anything or the opportunity to make more thorough points, I shall take the opportunity to do so.
I hope that I have given a good sense of direction of where we are coming from on this and why we feel that this provision is essential in these circumstances to protect the patients.
Lord Hendy (Lab)
I am very grateful to the Minister for spelling out the criterion for minimum service levels in the health sector, which is life and limb. Can I explore that a bit further? Life and limb would obviously have applicability to A&E and, clearly, to the ambulance service. Is not the implication that that means 100% service for the ambulance service? I cannot see how ambulance staff are going to know, until they get a call, whether it is a life and limb situation or simply somebody who has fallen, is uninjured but needs helping up—or whatever the situation might be. Can the Minister assist me on that?
Lord Markham (Con)
Yes, that is very much what happens at the moment, so that is the categorisation process that is entered into—and, from that, they categorise whether it is category 1, 2, 3 or 4, and the response will depend on that.
Lord Markham (Con)
I shall just finish and get the point out, and then happily hear the noble Lord’s follow-up question. In these circumstances, we are saying that it is around category 1 and 2, where we really believe that there are those life-threatening circumstances.
Lord Hendy (Lab)
That is absolutely understood—but is not the implication that the ambulance crews have to be in the ambulances? They cannot be standing on a picket line; they have to be in the ambulances to receive the calls. It is only when they receive the call that they are going to know whether it is category 1, 2 or 3, or whatever the specification is. Surely it follows that 100% service must be provided by the control room and the ambulance service—or have I got it wrong?
Lord Markham (Con)
As I say, we have some good experience, because of course this is exactly what is currently happening. What is agreed between the local trusts and the unions in those circumstances is something along the lines that 50% of calls—that is my figure as an example, and please do not take it as read—are category 1 and 2. The others are not in that category, so because of that we would look for a level of workforce to cover that level of calls. Please do not take the 50% as read; I am just taking that as an example, so that the noble Lord understands the principle behind this.
Lord Hendy (Lab)
I am so sorry to intervene again; this is absolutely my last intervention. If the criterion is life and limb then many of the categories listed by my noble friends Lord Collins and Lady O’Grady—community health services, pharmacists, mental health services, sexual health services and so on—can have no fear that there will be minimum service levels prescribed for them, because they are never in a life and limb situation.
Lord Markham (Con)
Correct. I emphasise once more the process set out here: if it were decided that there was that threat, that is the point at which we would go into consultation. That is the thinking behind the process. We would have to believe that in such an area there would be a threat to life and limb, and would then go into consultation on minimum service levels. I hope that this has been helpful. It has been helpful to me as well, as ever, to see the value of the Lords. I am a big believer in critical challenge.
Lord Markham (Con)
The noble Lord never disappoints me. I always say, from my business life, that two plus two equals five. Whenever you try to develop a new service or product, you need critical challenge along the way; you take points on board and you add to it, and you end up with a better product. I thank noble Lords sincerely, and I think they know me well enough to know that I will continue to take their input as we go through this process. I hope there is an understanding by noble Lords that we are trying to strike a reasonable balance here between the right to strike and the right to protection of life and limb, and that, in those circumstances, we cannot support these amendments.
Baroness O’Grady of Upper Holloway (Lab)
I thank the Health Minister for that reply, especially given that, as he said, he was drafted in at the last minute. I thank him also for his sentiment that he sincerely hopes that the provisions in the Bill will never need to be used.
I must share with the Minister my sincere hope that the NHS will be properly funded and staffed, and that its staff will be fairly rewarded so that they will never need to vote for strike action. However, the truth is that I cannot rely on that, which is why the human rights that have been spoken about are so important. I feel very strongly that the human rights of workers should not be treated as somehow second-class or requiring less scrutiny and parliamentary accountability; they are fundamental to millions of people’s working lives. In the health service, as we have heard, this is going to continue to be a big issue for us to address.
What I did not hear was an adequate answer to the real-world consequences of the Bill on the morale of NHS staff and on the industrial relations situation in the NHS. The Minister will know how burned-out, demoralised and concerned many staff are. This is not a luxury option; it is absolutely core to how people feel they are being treated, whether they are being respected and whether their professionalism is being respected. They are dedicated to the service and any suggestion that they are not is felt to be deeply insulting. I know the Minister understands how important that is.
It is not just unions saying it. As we have heard, the employers have said that they do not want the Bill, and I hope the Government will listen to them too. By the way, there is a third part of the equation, which is service users. As I have already said, we have seen that two-thirds of the public support the nurses and ambulance workers on strike. They understand that those staff are defending the service, as much as themselves, against real cuts in pay.
Member’s explanatory statement
This amendment would remove “education services” from the Bill.
Baroness O'Grady of Upper Holloway (Lab)
Amendments 6 and 7, in my name and that of my noble friend Lord Collins, seek to test the inclusion of education in the Bill.
No doubt the Minister will be relieved to hear that I do not intend to repeat all the arguments that I made on health, but the concerns about compatibility with international law and the protection of human rights are just as pronounced in respect of the education sector. The Government need to justify why education is included in this skeleton Bill.
Under international law, when fundamental rights such as the right to withdraw labour are at stake, it is not sufficient to impose minimum service levels simply because strikes are disruptive, however inconvenient they may be; nor can the Government seek to justify curtailing the right of education workers to withdraw their labour on life and limb grounds.
I would be grateful if the Minister could explain why the Government’s mind has changed so radically in respect of the education sector from the view set out in their human rights memorandum attached to the transport strikes Bill. It said:
“In the education sector, there are various statutory duties on schools (and in particular head teachers or governing bodies) regarding the organisation, management, and control of a school, safeguarding and supervision of children (both on and off site) and health and safety duties regarding pupils which will impact on contingency arrangements needed in the event of strike action. For example, DfE Guidance for school leaders, governing bodies and employers handling strike action in schools provides statutory guidance on using volunteers to cover striking teachers and outlines how schools are often organised into ‘family groups’ enabling them to pool staff to ensure minimum services are delivered, and thus minimising the impact on children … The large number of employers in the education sector would also likely make minimum service arrangements difficult and very burdensome to implement.”
That is what the Government’s own advice said.
Yet again, the Government stand accused of attempting to distract from the causes of the dispute by attacking the fundamental rights of staff. Even using the most conservative IFS figures, between 2010 and 2022 average teacher salaries were cut in real terms by at least 11%. That has led to a recruitment and retention crisis and burnout among those who remain. The public get that the root cause of this dispute needs to be tackled. Polls show that a majority of those who express a view support teachers taking strike action, and anybody who has tuned into Mumsnet will have seen there is significant support for teachers there, too. Yet again, it is regrettable that the Government have failed to launch a consultation so that the views of the public and those most affected can be taken into account by both Houses of Parliament. We also really do need an adequate account from the Minister of how these proposals will work when education is a devolved matter and the consent of the devolved nations is withheld.
I also want to highlight the very real impact of what will happen if the Government persist with this Bill and with attacking teachers and their unions. The consequences for education services could be far-reaching. As I have argued before, suppressing strikes will not deter workers who feel they have a just cause. We know that the current strikes have been prompted by years of real pay cuts and the devastating impact and consequences of recruitment and retention issues. Unless the root causes of the strikes are addressed, if this Bill becomes law, we will simply see an upsurge in other forms of action. Just to give noble Lords an example of how real that is: using ONS data, the TUC calculated that the Government benefited to the tune of £8.6 billion from unpaid overtime by public sector staff last year, with an average of over 8 million hours of unpaid overtime each week.
As we saw in the recent WhatsApp leak, teachers’ work ethic may be described by some Ministers—or former Ministers—in a contemptuous fashion. But it is worth remembering that in that unpaid overtime league, teachers are near the top. Contrary to the view expressed by the then Education Secretary that teachers do not want to work, our schools only survive because staff put in hours and hours of unpaid overtime each and every week. Imagine what would happen if that good will was withdrawn with, for example, a work to rule.
I see no evidence in the Government’s red-rated impact assessment that any of this has been addressed in any serious fashion. There is a very real cost to getting this wrong—all the more reason why this Bill should be subject to proper parliamentary scrutiny and accountability. I beg to move.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, I have to inform the Committee that if Amendment 6 is agreed to, I cannot call Amendment 7 by reason of pre-emption.
Lord Fox (LD)
My Lords, I was hoping that the noble Baroness, Lady O’Grady, would leave me something to say, and I think there is a small window of opportunity. The Minister will be pleased to know that it is a small window, as I note he is on his seventh Haribo and may need further sustenance if we go on much longer. I thank the noble Baroness, Lady Barran, for coming and speaking to this. It is very good to have the portfolio holders to address this, and I really appreciate that.
In the to and fro on Amendment 2, we began to nail what the Government mean by “education services”. The Minister said that it is more than just up to 16 but she did not go further. We are still not clear whether it covers further education and higher education, so Amendment 7 is a useful starting point in trying to set out in some detail what education services the Government have in mind. There are others—cleaning and janitorial services, for example—that are not included in that but are crucial to the safe running of a school. Anything that the Minister can say about what the Government feel is within the scope of the Bill would be helpful.
I am going to focus on schools because that appears to be where the Government are focused at the moment, but I am happy to be guided in other directions by the Minister. As the noble Baroness, Lady O’Grady, said, there was strike action in schools by members of the National Education Union in February and further action is planned, apparently, with strike action from the National Association of Head Teachers taking place in Wales; in Scotland, the Educational Institute of Scotland and two other unions are also planning future walkouts. So this is a serious issue.
We should be aware that there are a number of wide potential implications when there is a teachers’ strike. There are issues around child safety, parental inconvenience and the economic aspect for parents, who may then need to arrange childcare. Of course, there are also the effects on a cohort of children who may be missing out on essential education. There are ballots going on, so this is a real issue.
In order to understand this issue—indeed, to understand it at the micro, school level—I will assume that this Bill has been passed and the Government have established a minimum service level for schools. At the heart of this is the question of how the Bill is going to operate. There are very many schools and therefore a great number of employers in the school sector. I am interested in how the Government expect to enforce a minimum service level in schools. Who will be the employer who may field a work order? Is it the head teacher? Is it the unpaid, volunteer governors? Is it the local authority? If it is the local authority, how will free schools fit into this because they do not have a local authority? Is the governing body of a free school then the accountable employer? Clearly, the Government will have thought through every detail here. I am very keen to hear the details of how the Government expect to manage minimum service level delivery at the school level.
Perhaps the Minister could then tell us how many teachers in a school will make up the minimum service level. I am not aware of any state schools that have too many teachers; indeed, most of them tell us that they have too few teachers and too few classroom assistants. So what will be a minimum service level for teaching children in our schools in the event of a strike? Will it be everything that they are doing now—in which case, as we will discuss in other areas, the strike would, in effect, be banned—or something else, such as childminding? If it is childminding, the noble Baroness, Lady O’Grady, has set out the requirements that already exist under the statutory duties for schools and in the Department for Education’s guidance, which require head teachers to take into account the implications for how children are looked after and safeguarded in the event of a strike.
It is good that the noble Baroness, Lady Barran, is here. I really want to hear about all of that micro detail because it is understanding the detail that will help us to see inside the Bill and bring it to life. Because it is such a skeleton Bill, it is impossible for us really to understand the cogs and wheels that will fit together and deliver a minimum service level for our schools.
Lord Mann (Non-Afl)
My Lords, I am perplexed by this Bill and how it is worded. I am beginning to think that some deal has been done to promote the concept of an elected House of Lords because, if everything goes to statutory instruments and regulations, I am not sure of the purpose of the current revising Chamber. Perhaps some reverse Henry VIII amendments should be put in to assist that process, because this kind of business is as bad as it gets in that context.
In referencing my voluntary rather than unpaid interests, while “morale” has been mentioned, I home in on this question of the practicalities within schools. Can the Minister confirm whether any schools or larger multi-academy trusts have requested the inclusion of education and thereby schools in this legislation? If so, what rationale have they used to request that inclusion? Schools are struggling with the complexity of negotiating the additional contact hours that the Government are requiring of teachers.
My experience is primarily within the red wall. I am bemused at the politics. I have always found a Government of any colour, flavour or party picking on a particular section of the electorate and giving the impression that they are targeting them to be quite bad politics. Therefore, I am perplexed at what this is meant to do. Certainly, the parents within the red-wall areas of the country are in no way antagonistic towards a group such as teachers occasionally taking industrial action. It is very rare, but I have never witnessed or heard any antagonism in relation to that. There is sometimes sympathy, and often an agnostic position, but of the hundreds of thousands of emails that I have ever received, there has never been one on this issue. I have never heard it from a single person, even when such disputes have been in play.
That perplexes me, but something else really worries me. Can the Government confirm that the absentee rates in English schools are at the highest level in our history—27.5% on average? Is it true that in the more deprived areas, which would incorporate the red wall and beyond, it is at 33.5%, so one in three is not attending school at the moment? There are many reasons, particularly the aftermath of the pandemic and lockdown, but the behavioural issues are with younger children rather than older children, in secondary school years 7 and 8, which has not been the norm historically. Do the Government agree that with this absenteeism level, the critical factor is the good will of teachers and the flexibility of teachers to work beyond normal contract hours with those families and pupils to get the pupils back into school or to hold them in school?
That is the experience that I see and hear coming through very powerfully, and it correlates further—to elaborate a little on the point made by the noble Baroness, Lady O’Grady—in that, the more successful a school is, the more motivated the teachers tend to be. The more motivated the teachers are, the more flexibility they have and the more successful the school is. Those little bits on the side that teachers do, assisting individual pupils, are critical to how a school performs in the league tables and to what we deem a successful school.
We are in a crisis of the worst absenteeism in our schools in recorded history. How does that fit into the Government’s strategy on this? It seems to me that the inclusion of education—indeed, the whole Bill—makes no political or legislative sense. From my point of view, the inclusion of education will have the reverse impact to what the Government want on a system that is in crisis, because of the pandemic, in a way that it has never been before.
Baroness Blower (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Mann, in many respects. I began teaching in 1973 and I can count on the fingers of both hands—probably not even using them all—the number of times that I have been on strike. One of the reasons why I was not on strike in the early phases of my career was because we had sectoral collective bargaining: we could make an impact on what was happening with our pay and conditions. I very much regret the loss of collective bargaining in education because it has had a material impact on the way in which teachers are able to pursue issues with their own pay and conditions.
However, let us move on to what the Bill would do. The noble Lords, Lord Mann and Lord Fox, are of course right: there is a very serious situation with regard to recruitment and retention of teachers. That is one of the reasons why there is such a high rate of parental and carers’ support for the action that teachers are taking. To take just one example, one in eight maths lessons in schools in England is taught by someone who has no qualification in mathematics. What chance do we have of providing coherent maths teaching to the age of 18 or 19, as the Prime Minister would like, if we cannot provide it for all the children who have it at the moment?
I cannot tell you how many emails, messages and phone calls I had after people read the WhatsApp messages. The notion that a Secretary of State would say that all teachers were work-shy and did not like or want to go to work beggars belief, to be honest. For anyone who has never been a teacher, I can tell you that teaching is not for everybody, and there are people who voluntarily leave teaching because going into a classroom every day and not being successful is devastating. That is why lots of people leave the profession—because they cannot manage the stress of not just the teaching but all the accountability measures. We really need to hang on to the teachers we have, who are still going to school every day and, for the most part, enjoying their jobs, notwithstanding the terrible levels of pressure that they face. We really need to make sure that we have a proper retention system.
It seems to me that threatening those teachers with the possibility that they will be sacked if they have legitimately voted for and taken industrial action, very much as a last resort—as I am sure everybody in this Chamber knows and as has been said by Kevin Courtney and Mary Bousted, the joint general secretaries of the NEU—will not only risk the possibility of more people leaving teaching, but I cannot imagine that anyone is going to want to come into teaching when there are so many difficulties and challenges that we have at the moment.
On the other issue about cogs and wheels, I am not in favour of the fragmentation that we have seen in our education service, but fragmentation we have. The idea that we can have a minimum service level across 26,000 or 28,000 schools, not accounting for alternative provision and so on, simply is not workable. Much more importantly for me, it is not desirable. It conveys exactly the wrong impression to teachers, and we need to be talking up teaching—I am very prepared to do it—because even on a slightly bad day it is a wonderful job when you are actually in there with the children. It is not so great when you are dealing with Ofsted, and when you look at your pay at the end of the month, but it is fantastic when you are actually dealing with children and young people.
This is absolutely the wrong place to be going. I oppose this Bill in its totality, but I certainly oppose what is being said about education in this.
Lord Allan of Hallam (LD)
My Lords, I just wanted to rise briefly to follow up on a couple of points we made in the previous group that I think are applicable here. In some ways, we are dealing with apples and pears; the Health Minister talked about the legislation as being essential because of life and death situations, and I do not think that any of us, however much we value education, would argue that we are in the same game here. But on another level it is apples and apples, because the problem with both the framings in the Bill is that they just say “health services” or “education services” in this incredibly vague way. I think that some of the same criticisms about foreseeability and predictability apply here, as they did with the previous group.
Specifically in the context of education, I am keen to hear from the Education Minister a similar assurance to that we were given by the Health Minister that these are permissive powers: that affected entities may give work orders, but that they will never be forced by the Government to do so. Even if a minimum service level is established in education, I hope we are going to hear that no school, college or university would be made to give work orders; they are simply empowered to do so. I hope that will be the Government’s position; that would be consistent with the previous group. Even if they agree that this is the case, I still have concerns about the effect in practice, as I did with the previous group.
I have children who are, at the moment, in a school affected by strikes. The school is managing incredibly well; it is keeping the children in exam years in school and finding ways to safeguard the others. The principal writes to us and explains why he supports his striking staff and why they deserve a better deal. That principal is never going to implement these work orders if the Government put them in place, except in two circumstances. I think we need to explore that in the context of all the powers in this Bill.
The first circumstance is that the Government in some way try to make the principal give work orders that he does not want to give to his staff. They can do that through funding mechanisms—“You don’t have to give the work orders but, if you don’t, we’ll kick your windows in”. That is not really a free choice, yet we have to worry that this is the intention of the Government. Certainly if this Government stay in power, that is the way they would handle future disputes: “Now we’ve done the minimum service levels, there is no excuse for any school not to implement it and issue work orders, whether they like it or not”.
The second mechanism was again raised on the health trust situation, and I think it is also relevant here. It is that an educational institution feels legally vulnerable if it does not implement the minimum service levels. It could be the case for schools, but it is particularly a concern for universities. We already see universities being sued by students for alleged failures to deliver the service that they signed up for. I will not go into the rights and wrongs of those cases, but again you can imagine a situation in which a university says, “Our industrial relations are good. Yes, there is a strike. Yes, we can manage it. Yes, there is a government regulation that talks about minimum service levels, but we don’t want to give work orders to our staff because we think that will worsen the situation, not improve it”, and then find itself subject to legal action. With that threat hanging over them, the leadership of our education institutions ends up doing things it does not want to do and has not chosen to do.
The word “may” sits in the Bill and is at the heart of everything. I think this Minister will say, as the previous Minister said, “This is all optional—a backstop power—and we are not going to force anyone”. That only works if the Government can give us assurances that they are not going to run a protection racket—“Issue the work orders or we kick the window in”, name and shame, or whatever mechanism they want to use—and that they have taken the advice that says that even if they have implemented the regulations, our institutions are not required to implement them and cannot be sued through civil claims simply for failing to implement a minimum service level in a regulation under this legislation.
Lord Hendy (Lab)
My Lords, in the previous group I drew attention to the fact that the Delegated Powers and Regulatory Reform Committee report criticised the absence of detail in the Bill in relation to the provision of minimum service levels. In that group, the Minister explained to us that the criterion in setting minimum service levels in the health sector would be life and limb. Will the Minister say what the criteria are for the setting of minimum service levels in the education sector? What factors are going to be taken into account? A second and related point is about how the minimum service level is to be set. Is it going to be some percentage of the hours that teachers do, or something of that kind? What is it that the Government have in mind by way of a metric to measure the minimum service level?
As an associated point, what is the metric that employers will use to identify the workers necessary in a work notice to implement the minimum service level? My noble friend Lady O’Grady pointed out in opening the debate on this group that millions of hours are given by public service workers, and hundreds of thousands of those hours are provided by teachers in unpaid voluntary overtime. Quite clearly, the minimum service level, still more the work notice, presumably cannot specify that teachers have to work a minimum service which includes voluntary unpaid overtime, so the minimum service that could conceivably be specified is limited to the 35 or 38 hours or whatever it is per week specified in the contract of employment of each teacher. Effectively, if the Government implement 100% minimum service levels, there will be a work to rule. All the teachers will do the absolute minimum hours that their contract specifies. I invite the Minister to help us on how that could possibly be exceeded in a minimum service level and on what it is that the Government have in mind, taking that very important factor alluded to by my noble friend into account.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran)
My Lords, it is a pleasure, as my noble friend Lord Markham said earlier, to respond to your Lordships’ critical challenge. I thank the noble Lord, Lord Collins, and the noble Baroness Lady O’Grady; it really is a pleasure to be across the Dispatch Box for their amendments. I put on record the Government’s appreciation for all teachers, teaching assistants and staff who work across our schools and colleges and in higher education for the extraordinary and valuable job that they do.
Amendments 6 and 7 seek to remove the education sector and education services that are within scope of having minimum service levels implemented. As noble Lords know, the key sectors outlined in the Bill broadly stem from the 1992 Act as amended by the Trade Union Act 2016, and they have long been recognised as important for society to function effectively.
The noble Baroness asked why we need minimum service levels in education services. She can probably anticipate my answer, which is twofold: first, they have far-reaching consequences for children, who are potentially denied access to education if their teachers or other staff are on strike, and, secondly, it has an impact on their parents, many of whom work in other critical services but are unable to go to work. It is only right that these essential services, which the public pay for and expect to be there when they need them, are included in the Bill so that there is a reasonable balance between the ability of workers to strike and the rights of the public. The Government therefore cannot support the amendments.
Amendment 7 would exclude the vast majority of education services from the Bill. The Government believe it is right that the detail of specific services and minimum service levels is set out in secondary legislation. I am afraid that is why, in response to the noble Lords, Lord Fox and Lord Hendy, who asked for specific detail on criteria and metrics for minimum service, I am unable to give that detail to the Committee today.
Lord Collins of Highbury (Lab)
Sorry to interrupt, but the Health Minister was able to do that so I do not quite understand why the noble Baroness cannot.
Baroness Barran (Con)
My understanding is that the policy in this area is perhaps more developed in health, where I understand a public consultation has been published in relation to ambulance workers. That is not the case for education.
Lord Fox (LD)
In the spirit of trying to help, I can understand why specific MSLs are not possible, but the department must have in mind what it thinks a school would do and deliver in the event of a strike. Are we looking at essentially safeguarding, as I said, or are we looking at teaching a full curriculum for that school? Or could there be something, such as my noble friend mentioned, in teaching particularly crucial years in the school and then safeguarding the others? Could she give us some sense of what that looks like?
Baroness Barran (Con)
Genuinely in the spirit of being helpful, those are matters for a consultation if the Secretary of State decides to proceed with one.
Lord Collins of Highbury (Lab)
If I may correct the noble Baroness, the Health Minister was not setting out the consultation, which is restricted to the ambulance services. He was specifically talking about accident and emergency and life and limb. So the Department of Health clearly has reached a conclusion that was not subject to responding to a consultation.
Baroness Barran (Con)
I can only repeat that the Secretary of State is currently considering all options. When I am able to say more on this matter, I will be delighted to come back to the House to do so.
Baroness Barran (Con)
I will be delighted to write or take questions on this matter on the Floor of the House.
If I may continue, I will try to address some of the other points that noble Lords have raised. I think I said that on Amendment 7, which would exclude the vast majority of education services from the Bill, the Government believe it is right that the detail of specific services and of minimum service levels is set out in secondary legislation. The Government have no plans currently to move ahead with secondary legislation. Although this legislation gives us the power to introduce minimum service levels within education services, it is not our intention to do so in the short term because it is our strong preference to proceed by agreement and through guidance.
The noble Baroness, Lady O’Grady, asked about consultation. My right honourable friend the Secretary of State is considering all options at the moment. When those become clear, as I said, I would be delighted to update the House. The noble Baroness also asked about the ECHR memorandum and the reference to education. Since the Transport Bill was introduced, we have seen other essential services brought to a standstill. Therefore, the Prime Minister looked again at the issue and felt that disruption had spread beyond transport. Taking account of recent events as well as other evidence, there are a number of important services where the public should be protected, including children’s education, which should be protected against the disproportionate impacts of strike action for the future.
Lord Collins of Highbury (Lab)
If I may interrupt again, I think this is important because we are dealing with a skeleton Bill that outlines six sectors in which the Government will be given powers. What the Minister is saying—I do not want to put words into her mouth—is that, in respect of education, there is a hope that they will never use the powers that this Bill gives them, because it will be inappropriate. Therefore, I do not quite understand why education is there at all.
Baroness Barran (Con)
The noble Lord is obviously entitled to wonder; I think he goes a little far. We have been absolutely clear that we prefer voluntary arrangements.
In terms of employers, obviously local authorities are the employers for local authority schools. For academies and free schools, the academy trust is the employer. The noble Baroness, Lady Blower, and the noble Lords, Lord Mann and Lord Fox, asked if I believed that these agreements would—
Lord Fox (LD)
In the event that the Government eventually implement this, is it the local education authority that would draw up the work order and put the names on it, or is it the head teacher of the school who would draw up the work order and list the names of the teachers who are required to attend?
Baroness Barran (Con)
It is the employer, so the employer in the case of a local authority-maintained school—which is about 60% of our primary schools and about 20% of our secondary schools—would be the local authority. It would be the academy trust in relation to academies and free schools. The specific trust is the employer, and therefore it would be the board of the trust.
In relation to teacher morale and the impact of these potential minimum service levels on teacher morale, I would not want to generalise about that, but there are a number of issues that are clear from surveys, research and talking to teachers that really matter to them. One, of course, is salary; the second is workload, and the third is the behaviour that they deal with in their schools. All three are very important, but some noble Lords—I am guessing that the noble Baroness, Lady Blower, is among them—will have seen the same survey that I saw, which showed very clearly that teacher morale matched very closely to levels of behaviour and/or the calmness within an individual school. Within the department, we are working really hard on all those issues.
Those also connect to attendance, which the noble Lord, Lord Mann, raised. I do not entirely recognise the figures that he quoted. He might have been referring to frequent absence, rather than daily attendance. Most recently, on an average day, in our state-funded primary schools, 93.3% of children were in attendance; in secondary schools it was 92.2% and in state-funded special schools it was 88.3%.
Lord Mann (Non-Afl)
The Minister is absolutely right that those are the government statistics, but are they not the worst in our history? That was my point: through no fault of the Government, but because of the pandemic, we have a major crisis in schools and this has been thrown on top of it. Why worsen the situation?
Baroness Barran (Con)
We absolutely know that the pandemic has had a terrible impact on school attendance. That is why I say that the strikes at the moment are particularly unhelpful for children when we are trying to send a clear message that school is not an optional extra but something that you go to every single day. To have renewed disruption is not helpful for those children or the message that we are trying to send them. I am not confident, but I hope that I have reassured the Committee enough that the noble Baroness will withdraw her amendment.
Lord Hendy (Lab)
Can I just inquire about the Minister’s proposition that all options are being considered? Can she say whether the possibility has been excluded from consideration of requiring teachers under a work notice fulfilling a minimum service level to carry out unpaid voluntary overtime?
Baroness Barran (Con)
I am not aware of the details, but I am not sure that it would be appropriate to comment at this point.
Baroness Randerson (LD)
Is the Minister able to answer a brief question in relation to the role of school governors? They actually employ the staff—that is engage the staff. Do the Government not have concerns that these volunteers could be deterred from taking part in what is already a demanding, onerous and very skilled job by problems such as having to identify those members of staff who are needed for a minimum service level, added to their already onerous responsibilities?
Baroness Barran (Con)
I have already been repetitively clear that the Government would much prefer to see voluntary arrangements in this area. Again, having been a governor of a school, as many of your Lordships probably have, it is not about picking one single thing that is going to make it more or less stressful. We need to be very clear that the role of governors is incredibly important. We appreciate them enormously and offer them the support that they need to do their role.
Lord Collins of Highbury (Lab)
Can I just reiterate this point? The Minister says that she and her department would much prefer voluntary arrangements, as they work and they support them. What is her view, or the department’s view, of the impact of threatening to take these powers on those voluntary arrangements? Does she think that it might undermine the voluntary arrangements that she has been advocating?
Baroness Barran (Con)
We very much hope that it would have the opposite effect.
Baroness Chakrabarti (Lab)
I am sorry to press the Minister once more on my noble friend Lord Hendy’s point, but I do not think it is inappropriate because it goes to an important principle in this legislation. If there are some current services in the public space—education is the specific example given in this context—that are being provided at current levels only through a great deal of unpaid, extra hours of voluntary work, is it part of the policy behind the Bill that it is possible for a Secretary of State to prescribe minimum service level agreements that mandate unpaid voluntary work?
Baroness Barran (Con)
It would obviously depend on the contractual arrangements in place. My understanding is that not every case would be the same.
Baroness Blower (Lab)
One of the issues in teaching is precisely that all the voluntary activity is entirely without contractual arrangements. I am sure the Minister will agree that, if we bear down on people’s arrangements in the way this legislation proposes, good will—which is how we normally describe it—will evaporate as teachers will not feel valued and will certainly not feel properly rewarded.
Baroness Barran (Con)
I think the only thing I can say is that all these matters would be taken into account in any consultation if the Government decide to proceed.
Baroness O'Grady of Upper Holloway (Lab)
I thank the Minister, in particular for her willingness to carry on the conversation, whether on the Floor or through correspondence, as it has become clearer and clearer that there are number of specific major problems with this Bill that people will be looking for answers on.
On why the Government have shifted their position from that set out in the memorandum on human rights attached to the Transport Strikes (Minimum Service Levels) Bill, I felt it was a nice try, but it does not address what the Government’s position was—including the fact that there are already safeguarding and health and safety provisions in place. That is important when considering whether this is a proportionate response to fundamental human rights for workers—liberties that we have long treasured in this country.
The key message from the Minister’s response is that there is an intention to take the power but not to use it. As my noble friend Lord Collins said, it is clear that there would still be a very real impact on voluntary good will and morale. As the Minister acknowledges, that has a direct impact of the quality of the education services provided to children and is important to parents. I still feel very concerned about what scope there might be for undue pressure to come on trusts, governors and other institutions to wield and activate this power, even though it may be against their better judgement. Then we get into that highly dangerous territory, for any government of any stripe, where a strike becomes politicised. That point was made before regarding health, and it is a serious one.
I do believe that the Minister has a wise head. I encourage her to think about what it means in practice if you have an individual teacher, named and issued with a work notice, who is highly likely to be a union member who has voted for strike action. As there is nothing in the Bill to prevent this, they may have been picked on because they are a union rep or activist or because, like millions of ordinary working people in this country, those named teachers may simply hold the strong belief that they should have the individual freedom to withdraw their labour.
The Bill would ensure that, regardless, those teachers would be required to work against their will and their own conscience. They would be required to walk past their workmates, crossing a picket line—the main purpose of which is to persuade workers not to do so. The union must encourage them to comply, even if the notice was issued without the union’s agreement. All of this would be under threat of the sack. Potentially, if these mysterious “reasonable steps” are not taken, all those teachers would lose their protection against unfair dismissal.
I remind the Minister of the words of her colleague, the Conservative MP for Stevenage. He said it was “shameful” that
“individual … teachers & workers can be targeted & sacked if they don’t betray their mates.”
I encourage the Minister to talk to her colleagues and save them from themselves because this would be a disaster for industrial relations, our education service and for our children. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
We now come to Amendment 8 and the noble Lord, Lord Collins, this time.
Amendment 8
Lord Collins of Highbury
Member’s explanatory statement
This amendment would remove “transport services” from the Bill.
Lord Collins of Highbury (Lab)
It is my turn—the noble Baroness and I are a double act today, and it has been very good. I am glad we degrouped the amendments on these sectors to probe the Government on exactly what they intend, because today we heard a range of opinions that I never expected to hear. I am rather disappointed that the noble Baroness, Lady Vere, is not here to respond, because we may have got a third view, different from that of the Minister, who has been clear about the intent of the Bill—
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
I tried to ask the noble Baroness, Lady Vere, but she had prior commitments; otherwise, she would have been here.
Lord Collins of Highbury (Lab)
I hope—I plead with the Minister—that the noble Baroness reads the debate on this in Hansard. If questions arise, I hope he will encourage her to write to us, because we have heard something quite critical: a definition, for the health service, of who might be involved and the issues involved. We could understand what the Minister was saying on health. But of course he was focused on the fact that the voluntary agreements are what works. The noble Baroness, Lady Barran, was even more clear that the better way is the voluntary arrangements, the agreements in place and the good industrial relations, even when there are disagreements that lead to a dispute.
Now we come to transport, where there are obvious questions. Who is the real target of the Bill? One cannot help feeling that there is a target in it, and it is not any of the things we have heard about so far. Of course, the area where we know the Conservative Party had a manifesto commitment on was transport— passenger rail transport. Of course, that Bill did not proceed, and instead we have this omnibus piece of proposed legislation, which includes everything but with no detail, no definition of minimum standards and no proper scrutiny. Every committee that has examined this has criticised it because of that nature. This comes back my noble friend Lady Chakrabarti’s point about proportionality.
So let us focus. I will come on to Amendments 9 and 10, but let us deal with the first amendment. I will focus a bit on passenger rail, because we had a very bad red warning—is that what they call it?
Lord Collins of Highbury (Lab)
Normally that is a good thing in my party, but in this context it is not, because it failed completely. But let us go back to the impact assessment on passenger rail when it was introduced for the Bill that specifically addressed that issue.
In October 2022, the impact assessment for the Transport Strikes (Minimum Service Levels) Bill was tabled. It said that minimum service levels could have a
“negative impact on industrial relations, which could have detrimental impacts for all parties”.
It said that they could increase the frequency of disputes, meaning that
“an increased number of strikes could ultimately result in more adverse impacts in the long term”—
adverse impacts on all the people that the noble Baroness, Lady Noakes, talked about. They could lead to greater use of “action short of strike”, which would have a particularly significant impact in sectors such as fire and rail. The impact assessment further stated that minimum service levels could lead to “increased operational costs” for employers, with a “particularly onerous” burden on smaller operators, and result in lower pay and poorer conditions for union members and non-union members working in the relevant services. It went on to state:
“If terms and conditions are reduced over time relative to the strength of the economy in one sector then there is a potential for employers in other related sectors to be able to offer similarly reduced terms and conditions”—
we have certainly seen that in recent times.
Lord Collins of Highbury (Lab)
The TransPennine Express uses that clause, and that is why the public can see through this legislation. This is not about maintaining minimum service levels; this comes back to the basic, fundamental idea that this is an attack on organised labour and its ability to protect its workers. It is the thin end of the wedge, as it were: we started off with transport minimum service levels and then the Government thought, “It is very difficult to define how that will work, so let’s not do that, because we will be forced to define what a minimum service level is in the rail industry and we will have to account to Parliament for that. So let’s go the whole hog: let’s get a skeleton Bill which simply gives us the powers to set minimum service levels across a whole range of services and occupations.” They say that they are focused on public services, but of course most transport services are well outside the public sector and have been for a long time, including aviation.
How do the Government envisage minimum service levels in aviation? Do we have half a pilot? Do we have half the safety staff in a plane? Do we have half the number of planes? I suppose that most unions would go for that last option in terms of a dispute in the airline industry. It is a nonsense, and it highlights that there is a target in the Bill: it is not necessarily the taxi driver, the aviation industry or any of the other things which could be brought into its scope; it is rail passenger transport. We do not even get a mention of freight transport and other things such as that.
I suspect that, as we lead up to the election, the Bill will form part of the Government’s narrative that they are on the side of the public and passengers and that, according to them, Labour supports strikes and unions. No, the Bill is not about that; that is a false narrative. The narrative is: who defends public services and who supports the commitment of the people who serve us? It is Labour who will support the people and public services. This Government have undermined them, and that is why we have these strikes. I beg to move.
The Deputy Chairman of Committee (Lord Haskel) (Lab)
My Lords, if this amendment is agreed, I cannot call Amendments 9 or 10, because of pre-emption.
Lord Balfe (Con)
My Lords, you could make almost the same speech on every amendment in this group, because, frankly, the Bill is ill thought-out.
I remind noble Lords of my position as the honorary president of BALPA, the pilot union, so I thought it appropriate to speak on aviation. Most of aviation is governed by safety laws which are completely irrelevant to the Bill, but which must be followed—including those established by the International Air Transport Association—and we still have some EU laws that I hope will not disappear when the retained EU law Bill is passed. The fact of the matter is that you cannot have minimum levels of service in aviation. What do you do? Do you say, “The plane to JFK must take off because it has some businessmen on it”? Do you say that of an EasyJet plane to Spain? You cannot distinguish between them.
The other fact of the matter is that airline companies do not have strikes. The whole aim of BALPA and the industry is not to have strikes; they want to solve things. The strapline of BALPA is, “Every flight a safe flight”. It sees itself to an extent like the BMA, which is also a trade union, though we often forget; it is also a professional body that comes together to provide the safest level of service possible. If you think about it, a pilot who takes a jumbo jet up into the sky has £300 million-worth of equipment and probably 300 lives sitting behind him, so the need for safety is the most paramount need of all, and it is always followed—there is never any compromise.
As far as I can gather from the Bill, the Minister would be able to prescribe a week ahead that a flight had to take off. Under the current regulations, a pilot can pull a flight right up to starting the engine on the tarmac. He can say, “I’m sorry, I just don’t feel very well—you’d better get another pilot”, and it is accepted that he can self-certify, because the last thing we want is a pilot endangering the lives of the passengers. That is also the last thing the pilot wants. The pilot and the plane are subject to a raft of safety regulations far in advance of this legislation.
If a Minister a week ahead is going to say that a flight has to take off and that they will designate a pilot, are they going to become experts in rostering? Are they going to know which pilot to put in which plane? As I am sure noble Lords will readily grasp, every plane is slightly different, and every pilot has to be trained to be the pilot of that particular make and style of plane. So you cannot just go and say, “Right, we’re going to have Pilot Jones or Pilot Smith”. You have to get the right pilot, which is what the airline industry and airline unions are very good at, because they both have the same aim.
The Bill as drafted is a total nonsense; it does not make any sense whatever. Why is this provision in the Bill? I am baffled by this, as I can see the need for some laws, but I cannot see a single shred of evidence that this law is going to do anything whatever to improve industrial relations, the productivity and wealth of the country, or any other single objective that we all have.
I am not going to speak again in the course of these amendments, because we are effectively making the same speech. You go to an industry and look at how it works and you work out that the Bill has absolutely nothing to offer. Please could the Minister bring this Government down from where they are and realise that the wealth of this country is created by the workers of this country? Those workers need a decent standard of living, which is why they go to work every day—they go to work to look after their families. Most of them are very proud of the companies for which they work, such as BA and easyJet and all the other airline companies, and this applies across the line.
Lord Monks (Lab)
My Lords, it is always a pleasure to follow the noble Lord, Lord Balfe. He followed me as president of BALPA and has done a good job, as I know from all my ex-colleagues in that union. I have long experience of disputes in the transport sector, particularly in railways. In fact, if any noble Lord has a spare half hour and wants to go through the history of flexible rostering and train drivers, I am your man. I may not sell many tickets for that particular gig, I fear, but this is the sector that it is really all about. If the Bill hits the statute book and is used, it is in this sector that the trouble will really start, because it is very strongly unionised, with workers who are no strangers to industrial action. Whether culturally or practically, they have taken it over all their history. It is part of their way of life, and the first person who issues a work notice to them will really be lighting a fire with petrol, because it is incendiary and the cocktail of the dispute will be explosive.
Let us just follow through for a moment what would happen. A work notice is issued. The workers will act collectively, not individually, and refuse it. Individuals might then be selected—this is all provided for under this wonderful Bill—and those individuals will have a choice to make: whether to go along with the work notice or to turn around and say, “We are sticking with the democratically made decision to strike, and with the union”. Then what happens? What is the response likely to be? Will the employer persist and maybe fire some of them? We will get a situation where there are two disputes: the original dispute and the dispute about reinstatement of the workers concerned. This is nowhere near where we should be going as a country, and nowhere near finding a way to improve industrial relations and get people working co-operatively and in a spirit of mutual trust and support.
With two disputes instead of one, the Government need to be very careful and think carefully about employment law. The party opposite has enacted a lot of employment law since the 1980s. Some of it, I have to say, has been well targeted and has hit the mark, and some of it has had counterproductive effects. Even the election of general secretaries of unions has had a counterproductive effect in quite a lot of unions, with the more radical candidate usually winning. A piece of legislation such as this—an obvious candidate to be counterproductive, as well as wasting a lot of time and expense in all this procedure we are going through at the moment—seems to be about a Government taking a step against the unions that is too far. The Government should pause, think again and put it in the waste-paper basket of the noble Lord, Lord Balfe.
Lord Berkeley (Lab)
My Lords, I would like to speak briefly to support what all noble Lords have spoken about so far. I am honorary president of the UK Maritime Pilots’ Association, which is exactly the same, with not quite so many members, as the noble Lord, Lord Balfe, has with his airline pilots. We have the same issue of safety. In piloting an aeroplane, you are going rather faster than a ship, and if a ship gets into trouble, it cannot stop, or stop quite as quickly, as we all know. It is a dangerous job, and the pilotage training lasts several years. You start off with small ships and then they get bigger, and the scale of your local knowledge has to be quite dramatic. In most ports, big ships are now not allowed in without a pilot, for very good reason.
The same comments apply to the railways and railway safety. Noble Lords will have seen the accident in Greece last week—a head-on collision caused by some failure of regulation. We do not have that any more. We have an Office of Rail Regulation and various other bodies that make really sure that whatever operation we do is safe. I cannot see how Ministers, or the owners who will control many of the train operators, will be able to say, “Well, you do that. It is not your decision as to whether it’s safe or not; it is our decision”. I do not think a Minister will ever want to say that they have given an instruction that might be seen to be unsafe, because they will probably be for the high jump if it goes wrong. But many of the issues on the railways exist because the safety rules have built up over the years. Driver training used to take two years; it is a little quicker now but not much, and that is for a reason. You are not allowed to use a mobile phone when you are driving for a very good reason, because you lose your concentration. I cannot see how it can really work when Ministers are effectively giving instructions about someone going to drive the train and being responsible for the safety—closing the doors, making sure everybody is all right, and making sure the track is all right, which is really important.
I support my noble friends Lord Monks and Lord Collins, and the noble Lord, Lord Balfe, in saying “Think again”.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, the Committee may remember that, back in 2022, the TUC commissioned legal opinion from Michael Ford KC on the train operating contracts because there was concern about the role of the Government in obstructing a settlement to disputes. Looking at those contracts, his opinion was that the Transport Secretary has
“very extensive powers over what can be agreed between rail operators and unions, and very significant contractual power to direct how industrial disputes are handled. Rail operators are not free to agree terms and conditions without the involvement of the Transport Secretary.”
Before discussing matters, they have to get a mandate from the Transport Secretary, and so on. If you add to that the issue of minimum service levels, and the very real concerns expressed about undue pressure being brought to bear on employers to make use of the powers that the Government propose to take for the Secretary of State, you can see why there is concern. When you look at the power to direct disputes, minimum service levels and so on, apparently the only thing the Government are not willing to do is renationalise the railway system.
It would be wrong to assume that, even in that context, rail employers and unions have conversations, and certainly I am aware that train operating companies are not keen on this legislation. They have real concerns about what it would mean for health and safety on the railways; you could run 20% of services, but you have 100% of passengers wanting to get on. It is not as simple as some might believe.
I really wanted to ask the question: who is asking for this? It does not appear to be the employers. Who wants this to happen? Is it really passengers if it involves a detrimental impact on health and safety? People are already worried about the cuts to maintenance jobs. I do not believe passengers want an unsafe railway; I believe they want constructive industrial relations that can lead to a good-quality rail service. That is what passengers want, and I am afraid the Bill flies in the face of that.
Baroness Randerson (LD)
I share the disappointment of the noble Lord, Lord Collins, that the noble Baroness, Lady Vere, is not here, but I recall that the noble Lord, Lord Callanan, was Transport Minister back in the day, and I am absolutely sure he has perfect recall of those times and will give us very full answers.
In my Second Reading speech, I emphasised the fundamental differences between life and death services, such as fire and rescue and health services, and their contrast with transport services, which are of course economically important but are not life and death. Fundamentally, there is a whole range of transport services that can be substituted one for the other. If I wanted to go from Aberdeen to London, I could take the train, I could go by long-distance bus, I could fly, I could drive myself in a car, or, if I wanted the luxury route, I could take a ship and have a cruise. There is only one way to put out a fire, but there are lots of ways of travelling. Another key difference between the services we have been discussing earlier and transport services is that fire services, health services and education services are funded from our taxes and provided free of charge, whereas the profit motive is alive and well in transport services. Although I acknowledge that some transport services are subsidised, we still pay for the vast majority.
Amendment 9 from the noble Lord, Lord Balfe, is particularly useful in featuring aviation, which is, as he pointed out, overwhelmingly in the private sector, unsubsidised and not appropriate for this Bill. Amendment 10 is also very helpful because it features the complexity of transport services. I have a very specific example as a question for the Government seeking clarification on exactly what they mean by the term “transport”. For example, will they be setting minimum service levels for local bus services? If so, will those minimum service levels be for just those routes that are deemed socially necessary and are therefore subsidised by public money, or will they also include those local routes which are run by the same bus company but are run commercially and not subsidised by public money? The company that provides the services and some local councillors will know the difference, but I reckon there are very few bus passengers who will know the difference. It is that kind of detailed question that the Government need to be able to answer in order to clarify what they mean by “minimum service level”.
Even Amendment 10 would simplify the situation. At Second Reading, I used the example of cleaners going on strike on the railways. The Government are concerned about rail drivers but, if the cleaners go on strike, the toilets do not get cleaned so the trains cannot be run. I am interested in what level of detail the Government intend to specify in their minimum service levels.
Lord Hendy (Lab)
My Lords, I have four questions for the Minister. First, I appreciate that this ground has been covered to a certain extent—at least, what has been covered provokes me to ask this question again—but the noble Lord, Lord Markham, specified that the criterion for implementing or setting a minimum service level in the health service was danger to life and limb. In relation to transport, what is the criterion, or what are the criteria? Once those are established, how is the minimum service level to be computed? Is it a percentage of existing services that will have to be provided, or is some other metric to be used?
The second issue is the boundaries of the transport sector, a point that my noble friend Lord Collins mentioned in passing. The transport sector can be very wide indeed. Obviously, it could cover road transport, freight, passenger buses and so on, but what about parcel transportation, parcel delivery—post delivery? Does it extend to the Post Office? There are a multitude of examples. I would be very grateful if the Minister could tell us what the boundaries are.
The noble Baroness, Lady Randerson, mentioned a strike by cleaners. If the minimum service level for rail passenger transport requires that a certain percentage of trains run, what is the implication for workers other than those who drive the trains? What is the impact on guards, conductors and signallers? If we run half the commuter trains in and out of London, do we not need a full complement of signallers to do it? Are they to be banned from taking strike action altogether by a minimum service level of 100%? What about the ticketing staff and the guards who are in charge of collecting fares and so on? If they go on strike, what are the implications there for a minimum service level? There is also track maintenance. You cannot have 20% of track maintenance. Presumably you need all the track maintenance to keep the lines open. Is it proposed that there would be a 100% minimum service level for track maintenance staff?
The third issue is overtime, which also arose in relation to teachers. Anybody who knows anything about the railways knows that a rail passenger service runs on voluntary overtime—drivers working on the days that they are rostered to have off. Of course, they are paid, unlike the teachers. Nevertheless, it is voluntary. It is beyond their contractual obligation. How will setting a minimum service level—further, how will setting a work notice—avoid imposing an obligation that those who normally provide voluntary overtime must provide it to maintain the minimum service level? Is that what is being proposed? Is that what the Government have in mind, or can the Minister tell us now that there will be no requirement for rail staff to work voluntary overtime?
The fourth issue is one that the Minister has heard me raise before. This Bill clearly constrains and limits the right to strike. There can be no doubt about that. This has implications under the EU-UK Trade and Cooperation Agreement. Articles 386 and 387 state that where the standards of the International Labour Organization—ILO Convention No. 87 and so on—are diminished by one of the parties, either the UK or the EU, and that affects trade, this will be a violation of that agreement.
The Minister may say that none of these sectors will affect trade. That may be dubious in relation to the transport sector but, leaving that aside, even if that does not apply, Article 399 of the trade and co-operation agreement requires the United Kingdom and the countries of the EU to implement those ILO conventions that they have ratified, including ILO Convention No. 87, which protects the right to strike, and requires them to implement the provisions of the European Social Charter, which they have ratified. The United Kingdom has ratified paragraph 4 of Article 6 of the European Social Charter 1961, which specifically provides that workers have the right to take collective action. The Bill unarguably diminishes that right, which will also lead to a violation of the treaty. Can the Minister explain why he thinks that there is no possible violation involved?
Baroness Chakrabarti (Lab)
My Lords, I will try to be brief to help the Minister. In a throwaway remark, I think, at Second Reading, he said, with his usual flair and panache, something like, “I notice that noble Lords opposite are very quick to invoke the nurses but not the railway workers”. But that was not quite the case, because a number of us, myself included, had happily invoked rail workers. I will not talk only about nurses. I have travelled on many trains up and down this country and I hugely admire rail workers, who are not just drivers but the people who look after us on our journeys. I have seen rail workers looking after people in distress on overcrowded trains in the heat and helping the infirm on and off trains. As a woman often travelling alone intercity late at night, I have been very grateful for there being somebody in that carriage, so I am very happy to invoke the rail workers.
The Minister said that as though that meant we were on weaker ground tactically—a bit more embarrassed about rail workers than, for example, health workers. It made me wonder whether this is not the real target of the legislation. If rail workers generally, or the RMT in particular—perhaps because the general secretary has a certain hairstyle—are the real target for this legislation, why can we not have targeted legislation that includes what the criteria are and what the service level agreement is? That would be better legislation.
My noble friends have pointed out the differences in the approaches of the three Ministers that we have heard so far. A life and limb test was offered in the context of healthcare. There was no test offered in the case of education, but some embarrassment and a real desire to never have to invoke this legislation at all. Is this difference of opinion a difference of policy and approach in the different departments or, to be more charitable to the Government, is it because these services are just too different and it is not appropriate for them all to be bundled into a single Bill to give sweeping powers to the indivisible Secretary of State to legislate by fiat?
Either way, whichever is true, it is not appropriate for legislation. I say once more to the Minister: if this is about rail services, there are ways to tackle that, with or without legislation, given the very influential role the Government have in relation to the private companies through contracts and so on. If this is supposed to be general emergency legislation, we need criteria suggesting that this is a proper emergency—not in healthcare but in getting teachers to do mandatory unpaid overtime in other areas. A real problem of inconsistency has been identified in the varying groups, and that is why I do not think they have been repetitive but a voyage of discovery about what may or may not be the real motivation and about the obvious weaknesses in the Bill.
Finally, if I may say so, the question posed by my noble friend Lord Hendy about whether a potential mandatory requirement for people to do voluntary unpaid work will—or might—feature, is within the vires of the Bill.
Lord Callanan (Con)
I thank all noble Lords who have spoken. First, I apologise to the noble Lord, Lord Collins, that he has me responding to this group. I tried to get the Transport Minister to take it but, unfortunately, she had a long-standing personal engagement and was not able to. I hope that he was grateful that I got the Health Minister and the Education Minister to respond to the other groups, because I thought it more appropriate in those circumstances, lest the Committee get bored hearing from me on all the subjects. As the noble Baroness, Lady Randerson, observed, I was for a brief period six years ago a Transport Minister, but in aviation, not in rail. I have trouble recalling all of the things I did six years ago.
Baroness Randerson (LD)
I understand why the Minister is not going to answer the question about local bus services and the bits that are and are not subsidised within one service, and I realise why he cannot give me a full answer now, but will there be a letter from the Government on that issue?
Lord Callanan (Con)
I am happy to give the noble Baroness a letter, but I am not sure there is much doubt about it. Legislation is not dependent on whether the service is subsidised. Some rail services are heavily subsidised, and some are not. It is about providing the level of service to the public. There is no compulsion on employers to use a minimum service level if it has been set in their particular sector. It is probably quite unlikely that we would want to set minimum service levels in local bus services, but that is a decision for the Secretary of State if Parliament chooses to grant him the power.
Lord Collins of Highbury (Lab)
The Minister keeps repeating the mantra that it is up to employers. As I mentioned, the train operators have a unique relationship with the public and the Government. The Government contract them to provide the service, and I referred to the dispute handling clause within that contract. Will the Minister make clear to us whether in the consultation he has mentioned the Government will put pressure on the train operating companies even if they do not want these minimum service levels statutory powers and notices? Will the Government put pressure on them to use them?
Lord Callanan (Con)
I am sorry if the noble Lord thinks I am repeating a mantra. I am answering the questions that are asked of me. People keep asking me the question, so I keep giving the same answer, which is the legal position that there is no legal obligation on employers to utilise a minimum service level. That remains the case. I am sorry if the noble Lord thinks that is a mantra, but that is the legal position. I was asked a question and I am answering it.
Let me answer the other part of the noble Lord’s question. Clearly, in the case of rail, the taxpayer puts in billions of pounds a year to subsidise the service, so my personal view is that the Secretary of State has every right to seek to manage the service properly and effectively. However, the decision to issue a work notice, if the minimum service level applies and is set by Parliament at a particular level, comes down to the employer.
Baroness Chakrabarti (Lab)
Surely the special point about railways is that the Government are contractor as well as legislator. What is being probed by my noble friends is whether it is appropriate for the Government on the one hand to give lovely contracts to rail companies—who are practically profiteers, in my view, and are not passing on the revenue from increased rail fares every year to the workers or the service users—and on the other hand to compensate them for strike action within the contract, and for the Government then to impose the minimum service level agreement, which is effectively on the trade unions. Is that appropriate? Is it ethical? Is it constitutionally something that we want to see the Government of this country doing?
Lord Callanan (Con)
I am not an expert in the rail industry but my understanding is that most of the train operating companies are owned by the taxpayer now through various takeovers, so in my view the Secretary of State has a duty to run the rail services. Taxpayers are very generous in the support they provide to the rail industry, and trade unions sometimes do not appreciate how much it is subsidised. In my view the Secretary of State has a right to intervene on behalf of the travelling public and the taxpayer. The legal position—the noble Lord, Lord Collins, might think it is a mantra—is that there is no legal obligation in the Bill on employers to utilise a minimum service level if one has been set in their area.
Lord Berkeley (Lab)
The Minister’s answers have been interesting but they have concentrated about 90% on the railways, apart from a little dabble into the bus sector with the noble Baroness, Lady Randerson.
Do we take it that Ministers are not really interested in the issues listed in Amendment 10:
“aviation services, airline services, airport services … car delivery services, road haulage services, parcel delivery services”—
even trams—and
“rail engineering ferry and waterway services”?
Are the Government not concerned about them? Are they not even going to try to come up with minimum service arrangements for them? Is it just really about the railway? I think that is what the Minister is saying.
Lord Callanan (Con)
I am sorry if the noble Lord is disappointed. I answered the questions that were asked of me and most of them were about rail services. That is what we have issued the consultation on, which is why I was answering the questions. The noble Baroness, Lady Randerson, asked me about bus services so I answered that question. I do not know how the noble Lord computes that we are somehow uninterested in other sectors. This legislation will specify transport services as an appropriate power for the Secretary of State to designate minimum service levels for, but the only one that we have issued on transport services at the moment is on passenger rail. That does not mean we are not interested in other transport services.
Lord Hendy (Lab)
I asked the Minister about the trade and co-operation agreement. He did not refer to that. I do not know if he wishes to do so or if he thinks it is completely irrelevant.
Lord Callanan (Con)
I do not think it is irrelevant. We stand completely by the trade and co-operation agreement, but I am not sure how the EU would have a problem with minimum service level agreements, given how many other European countries, including Italy, France and Spain, have minimum service level agreements in place in their legislation. I am not sure how it could accuse us of undermining the TCA.
Lord Hendy (Lab)
I will not repeat what I said earlier today, but it is quite clear that the ILO in particular imposes conditions on minimum service levels that this Bill does not comply with. That is the difficulty for the Government.
Lord Collins of Highbury (Lab)
Those countries do not sack workers in these circumstances. We could end up with nurses and teachers being sacked.
We are led to believe that the Bill is a legal provision that will give incredible powers to Secretaries of State across a wide range of industries. Actually, the Minister did not address the question of aviation that the noble Lord, Lord Balfe, and I raised. It makes no sense that that sector, in this broad way, has been put in the Bill. Surely, as my noble friend said, the Transport Strikes (Minimum Service Levels) Bill would have attracted detailed scrutiny about how minimum service levels would operate and how to legislate for them in the railway industry. I have a sneaking suspicion that it was deemed that, “This won’t work; it will be too politically difficult and have too many legal implications. Let’s just give ourselves the power, and then we can determine through the comfort of secondary legislation how we might threaten this and implement it.”
At the end of the day, we will be able to scrutinise other elements of this Bill regarding how the minimum service levels will be set. It has been an interesting exercise today to scrutinise the generality of why these six sectors were picked but also to go through each one separately; we have been able to better understand the range of opinion within the Government and different government departments. I still think that, while the noble Lord, Lord Callanan, can hide behind the legal definition that it will be the responsibility of the employers, everyone out there knows that it will be this Government who will be telling employers to introduce these minimum service levels. The Government will therefore have to take responsibility and be accountable for the mess that they create. I beg leave to withdraw the amendment.
Lord Fox
“(5) Levels of service set by regulations under subsection (1) may not exceed the lowest actual level of service for the relevant service recorded on any day of the 12 months before the regulations are laid.(6) Before making regulations under subsection (1) for the relevant service, the Secretary of State must lay before each House of Parliament a report showing that the condition in subsection (5) is met.”Member’s explanatory statement
This amendment would prevent the Secretary of State from specifying minimum service levels that were higher than the actual level of service recorded by the relevant service in the year before the new regulations are laid.
Lord Fox (LD)
My Lords, I will also speak in support of Amendment 18, in the names of the noble Lords, Lord Patel and Lord Kakkar. In my view, this is a group of amendments that sets out one of the key issues of this Bill. Both amendments seek to conflate the minimum service level—as introduced by this Bill—with the actual non-strike base service levels that are being achieved. In this case, we will focus on the NHS, but actually, in my case, not exclusively so. This is something that your Lordships have come back to on a number of occasions, both in Committee and during Second Reading, and it was previewed by the Minister in a response to the noble Baroness, Lady Fox, when she was here.
Lord Patel (CB)
My Lords, I will speak to my Amendment 18. Much of what I have to say will resonate with what the right reverend Prelate the Bishop of London and the noble Baroness, Lady O’Grady of Upper Holloway, had to say. I am also grateful to my noble friend Lord Kakkar for adding his name to it. My amendment seeks to explore the logic of defining minimum staff service levels in healthcare, without first having a benchmark of what is an appropriate level of staffing that fulfils the needs of patient care and patient safety.
While this Bill is not about rights and wrongs of strike action, I will express my personal view that, as a doctor, I would never have withheld my service, no matter the circumstances. This Bill grants the Secretary of State powers to make minimum service regulations during a strike across several sectors, including health services. I will speak only regarding health services, as “health services” are not defined in the Bill, which makes the legislation very broad in scope. “Minimum service levels” are also not defined in the Bill but will be defined by the Business Secretary after consultation.
The focus of my amendment is patient safety. Legislation that imposes minimum service levels inevitably means a reduced number of staff expected to provide the same level of care. How can that not compromise patient safety? We seem to have forgotten the lessons from the Francis report, the Kirkup report and the Ockenden review—to mention some—all of which commented on patient harm caused by lack of staff. We are all aware that the health and care service is currently under immense pressure, as has been mentioned several times. There are unprecedented levels of workforce shortfall—around 10% of the total workforce—leading to 130,000 vacancies with over 50,000 vacancies in nursing alone. Staff are exhausted, morale is low and employers are having to pay out huge sums of money in agency fees.
My amendment prevents the Government introducing minimum service levels for health, unless they have, via primary legislation, first set out the appropriate legally enforceable staffing levels for health services on non-strike days. Without this, how can the service or, importantly, the patients know that care with reduced services at a minimum level is safe and will not result in patient harm? Daily, patient safety is compromised as a result of staffing problems. The NHS should be safely staffed every day of the week, as has been mentioned.
Is it even possible that minimum levels of service prescribed at national level could be universally applied? There are huge variations in the intensity and complexity of healthcare provided from one health region to another. Both Scotland and Wales have a legal requirement for services to be safely staffed. Why are the Government reluctant to legislate in a similar way in England? Health professional organisations, including the British Medical Association, the Royal College of Nursing and the Royal College of Midwives, have repeatedly called for this. We have debated this several times in this Chamber. Imposing minimum service levels, defined by the Secretary of State for Business, may end up having an effect that the Government do not want—being forced to legislate by courts for appropriate levels of staffing in healthcare.
While minimum service levels can be defined in some areas of healthcare, it is impractical to do it in clinical areas such as maternity, intensive care, A&E, acute surgical and medical care, to name but a few. In the debate on the group beginning with Amendment 3, the noble Lord, Lord Markham, suggested that health services in this Bill will be interpreted as life and limb services. If that is the case, it needs to be redefined in the Bill by a government amendment. In my 40 years of practice, life and limb situations meant all hands on deck; there was no such thing as a minimum level of service.
What assessment have the Government made of the effect that work notices will have on employer-staff relationships? Who would be blamed if there is a patient safety issue? There are no details in the Bill on what would happen if minimum service levels were not met on non-strike days. I have no doubt that the noble Lord, Lord Kakkar, will speak in greater details about the unintended consequences of this. I hope the Minister will comment on what assessment the Government have made of possible legal consequences if services are staffed below the minimum prescribed level.
I fear that, in a rush to get the legislation through, there has been no thought given to how minimum service levels can be defined in clinical risk areas in the absence of first legislating on what is an appropriate staffing level and the risks to patient safety. As I mentioned, the Minister on the previous group, the noble Lord, Lord Callanan, already referred to the minimum service levels as “life and limb”. I hope the Government give further thought to appropriate safe staffing levels on non-strike days before bringing in any minimum service levels in clinical areas. I look forward to the Minister’s comments on the issues I have raised.
Lord Kakkar (CB)
My Lords, I support Amendment 18 in the name of my noble friend Lord Patel. I remind noble Lords of my registered interests; in particular, that I am a practising clinician. The amendment, and my noble friend’s introduction to it, clearly lay out an important point about the consequences with regard to practice on non-strike days if a minimum level of staffing is defined for clinical areas on strike days. It is possible that, on non-strike days, staffing levels will fall below the minimum defined for a strike day. Under those circumstances, would it be appropriate for the healthcare organisation in question to continue to deliver service in that clinical area where the minimum service or staffing level defined for a strike day has been breached?
What would be the consequences for a clinician—a regulated healthcare professional—offering to work and participate in the delivery of clinical care in a clinical environment whose staffing would, on a strike day, be considered to have fallen below a safe level? What would be the consequence for a regulated healthcare organisation of continuing to promote the delivery of care, on a non-strike day, in an area that it would consider unsafe on a strike day if the staffing level were below that defined? For instance, what view have the professional and system regulators taken of this potential situation?
Would there then be a greater risk for potential litigation associated with the delivery of care in a clinical area that had failed to provide, on a non-strike day, staffing levels that were considered the minimum level to be provided on a strike day? Would that have a chilling effect on the capacity or willingness of clinicians and healthcare professionals to participate in the delivery of care under those circumstances? These are important issues that need to be explored in some detail to ensure that they are not unintended consequences of proceeding with an approach that secures patient safety on strike days but, unfortunately, fails to have determined that appropriate protection of patient safety on non-strike days.
Baroness Watkins of Tavistock (CB)
My Lords, I support the amendment in the names of my noble friends Lord Patel and Lord Kakkar, and I agree with everything they said. I return to the issue of life and limb. We need to recognise that we have people in hospitals and care homes who, if they did not receive compassionate care, would be left in unclean beds, would not be fed and would not receive what we think of as ordinary, everyday care. Therefore, the whole issue of what minimum levels should be needs to be thought about really carefully. It needs to be thought about outside the opportunities of strikes and in terms of ordinary, everyday care.
I am worried that, without the amendment proposed, it is possible that we would have safer, or better, care on strike days than on non-strike days. I am also worried that, unless we tackle the workforce shortage, which has driven staff to their current level of discontent in health and care, we will continue to have problems. This is not just about people striking for an increase in salary; it is about people’s real concern about being unable to deliver the service they wish to deliver.
The Lord Bishop of London
My Lords, I shall speak to Amendment 18 in the names of the noble Lords, Lord Patel and Lord Kakkar, and add my voice to many of the points already raised. I thank the Minister for being much more specific around health. I hope that we can define it much more clearly, rather than having that very broad category, as well as the issue around life and limb.
I remind the Government that, in this Chamber, they have resisted introducing legislation for minimum staffing levels on a number of occasions. It seems incredible that they now want to put in levels of minimum service, which clearly require minimum staffing levels, but are willing to do it only on strike days.
As I indicated earlier, this amendment goes to the heart of one of the key issues with the Bill; namely, that people in the health service who strike do so partly because safe staffing levels are not in place on non-strike days. We have already heard that the healthcare system is under huge pressure, trying to provide quality care with fewer staff, and there are workforce problems. The most recent statistic I have shows that there are 124,000 vacancies across the NHS—that is 13,000 more than this time last year. The Royal College of Nursing published a survey in May 2022 showing that only 25% of shifts have the planned number of registered nurses and 83% of respondents said that there were not enough nursing staff to meet all patient needs safely and effectively on their most recent shift.
Staff on non-strike days are thinly stretched and cannot provide the level of care that they would want to, which puts huge pressure on their health and well-being. The distress that they experience is causing an increase in illness to them. Reporting on the past year, the Healthcare Safety Investigation Branch noted that the additional pressure that staff were under was causing sickness. As a new student nurse put it, “I no longer want the career as it is. The reality feels as though I must sacrifice my own health and well-being for less than satisfactory pay.”
The notion that the Government could legislate to require minimum service levels in healthcare settings, which are already committed to safe strikes, while there is a lack of investment and workforce planning—which is the reason for the action—is unfathomable. I would welcome the Government legislating to ensure appropriate staffing levels on non-strike days that are greater than the strike day cover. That would be welcomed by nurses, because it would mean more resources and more workforce planning than the health service has seen for years. It would also resolve one of the reasons why nurses are taking strike action. I have spoken about trust, as have a number of noble Lords. Accepting this amendment would go some way towards to rebuilding the trust that has been eroded, and will be eroded further by this Bill.
Amendment 13 in the name of the noble Lord, Lord Fox, seeks to make a similar point but through a different route. Along with my right reverend friend the Bishop of Manchester, who is unable to be here, I express my support for that amendment as well.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support both the amendments. I have sat in my office all afternoon listening to this debate. At times, it was difficult to concentrate, simply because there was a degree of repetition. I do not blame noble Lords for that; I blame the Government—as usual. At least I got lots of old paperwork sorted, which was real progress for me.
Despite trade unions sounding the alarm on unsafe levels of staffing in public services such as hospitals for quite some time, the Government refuse to implement legislation ensuring safe levels of staffing on any day other than a day when workers have chosen to withhold their labour by going on strike.
These amendments lay bare the ridiculousness of the Bill. Under this legislation, the Government will force workers to go to work against their will, with the perverse outcome being that strike days could see services with a higher number of staff than on non-strike days. It sounds like slavery to me. Is it not slavery when you force people to work against their will?
The Government propose that this is done by employers writing out a list of names of workers who must turn up and work on a strike day. Unlike on a normal work rota, workers will not be allowed to call in sick, take parental leave, take bereavement leave or even be in hospital having had a major condition of some sort. This legislation drags the workers in and forces them into a temporary state of servitude. That goes against every single principle of common law, contract law and employment rights in this country.
I have a cunning plan which would save the Government on this issue; it would just need a few tweaks in the Bill. If the Government want to make it illegal to go below minimum staffing levels in hospitals and the ambulance service, why do we not do that 24/7 and 365 days a year but, instead of the unions getting fined, we fine the CEOs and Government Ministers? That way, if you want someone to be responsible for old people waiting eight hours for an ambulance, you put the legal responsibility on the people at the top, not at the bottom. This seems eminently sensible and much more practical. Let us have laws that apply to the people in charge rather than target the overstretched staff on the front line, who are struggling for better pay and conditions. The Government will not be able to deliver either my idea or the Bill as it stands. In fact, this Government is too incompetent to deliver a pizza, so why should they be able to deliver a Bill such as this one?
If the next Government have any sort of involvement with the Green Party, they should know that we have committed to repealing this legislation and all other anti-trade union legislation passed since the Thatcher Government—that will be quite an exercise. We can create safe, well-run public services by working together with workers and unions, not by using authoritarian laws to strong-arm them into the workplace no matter how badly their working conditions get. I hope that the Government see sense on this, but I can tell from the looks of noble Lords on the Front Bench that it is not going to work.
Baroness Noakes (Con)
My Lords, it is quite difficult to follow that speech. I do not think that anybody would want to encourage the dissipation of the Green Party in any Government, so the noble Baroness’s ideas will not go very far.
I will not talk about the NHS, which all noble Lords have spoken about so far; I will address only Amendment 13 tabled by the noble Lord, Lord Fox, but not in the context of the NHS, to which he addressed all his remarks.
Baroness Noakes (Con)
The amendment says:
“Levels of service set by regulations … may not exceed the lowest actual level of service … on any day”
in the previous 12 months. Let us take the example of train services. If we have the system closed because there is a lot of snow—which, I gather, there is at the moment in the north of England—the answer under the noble Lord’s amendment would be that the minimum level of service was no service. If one of the days in the previous 12 months had been a strike day, the answer might be no service. If any of the days in the previous 12 months were on a weekend or a bank holiday, which of course they would be, the answer would always be a very low level of service, which would not necessarily meet a minimum level of service for the workday population trying to get to work. I suggest to the noble Lord, Lord Fox, that his amendment is not correctly drawn.
Lord Allan of Hallam (LD)
My Lords, when this subject first came up in the Bill—the idea of talking about minimum service levels around services for 365 days a year—I initially thought that there was a cheeky and a serious aspect to it. The cheeky aspect is that it is an opportunity to make a political response to the Government’s political legislation, and to talk about service levels all year round and the failings we have seen since this party has been in power as our public services have worsened.
The serious aspect, which in a sense is more interesting and which has come out in the debate today, is around the definition of “minimum”. The noble Baroness, Lady Noakes, keeps reminding us to think about what the public see and perceive. There are two quite different ways in which to interpret “minimum”. One version is “comfortable”, when services are at a reasonable and sustainable level and are effective. In the context of healthcare, that would mean that I can see a GP when I need to, or get hold of an NHS dentist. If I am a woman who needs hormone replacement therapy, or if I have a child who needs antibiotics, I can get the drugs. When I call an ambulance, one comes in a reasonable period of time—and when I go to A&E, I can get through it and into a bed. When I need to be discharged, there is a care home for me to go to. Of all those things, I think most members of the public would say that that is a minimum. It is not the gold-standard service—it is the baseline that they expect.
Lord Collins of Highbury (Lab)
My Lords, this has been an excellent debate. Both noble Lords on the Cross Benches have highlighted something that we all knew would happen—that this debate would beg a question about what we can expect from our public services. What is the minimum level of service?
As we have heard, a common theme—not just in debate on this Bill—is about how people who work in the public service are genuinely concerned about its future. That is not just in the health service, by the way; there are lots of examples of people’s expectations. To be cynical, people might look at the minimum level of service set for strike days and think, “I’ll have that”, in certain circumstances. But if you speak to fire brigade members and other public sector workers, they will all give you the same message: there is a lack of investment, and they are worried about safety and their communities. It is not simply about pay and conditions—but when it is about pay and conditions, it is also about the shortage of workers.
In a commercial outfit, if you were not able to recruit, I know what you would do: put the pay up, improve the conditions, advertise it. That is not what we do in the public sector. We have seen cut after cut. I have been reading the BMA brief, and of course the Health and Social Care Committee has made the same point in terms of staffing. It describes it as “the greatest workforce crisis” facing the NHS and social care. There is persistent understaffing that poses a serious risk to staff and patient safety.
That is what the public will note when they hear these debates. They will not hear the Health Minister’s comments about life and limb; what they will hear is why, when someone has a heart attack, they have to wait four hours for an ambulance or, when they are in accident and emergency, they are on a trolley for hours and hours. That is what this debate is about, unfortunately. People want to see what the genuine priorities of this Government are. They will not be fooled by this narrative that is going to be developed about whose side you are on—they will not be fooled. They want proper public services and I think the noble Lords are absolutely right to say, if you are going to talk about minimum service levels, talk about it on non-strike days: how do you improve it? That is what people will be focused on. I hope the Ministers will listen.
Lord Callanan (Con)
My Lords, it is my pleasure to reply on this group containing Amendments 13 and 18, grouped together as they both relate to levels of service on non-strike days. The Government do not support these amendments on the basis that they add unnecessary limitations to and delays in establishing the minimum service levels. Amendment 13 seeks to cap minimum service levels to the lowest service levels recorded for a relevant service during the 12 months before regulations are laid. It would require the Secretary of State to lay a report in both Houses before introducing regulations to evidence this condition.
Before responding generally on that amendment, let me first answer the points made by the noble Lord, Lord Fox, regarding his correspondence with my noble friend Lord Sharpe. The noble Lord is correct to point out that one option within the consultation Minimum Service Levels for Fire and Rescue Services looks at staffing levels being geared to respond to specific risks, including a minimum standard to respond to a major incident. However, this is just one of five options outlined in the consultation, and I do not consider that my noble friend has prejudged that consultation. I know that he is very willing to engage further on minimum service levels for fire and rescue services with the noble Lord if that would be helpful.
Before I turn more directly to the amendments, I will take an intervention from the noble Baroness, Lady O’Grady.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, just on fire and rescue services, does the Minister recognise that at the root of many of the disputes is a concern about what the level of service and staffing is on every other day of the year? Take the fire service, for example: since 2010, it has lost 12,000 posts, nearly 20%; 50 fire stations have been closed. Those firefighters really care about that. Further, and very briefly, my concern about the reference to Grenfell is because I spoke to firefighters after Grenfell. They were brave, they were dedicated and in some cases they were broken by that experience. They put their lives on the line and they saw terrible things. Can the Minister understand how insulting it is to use that as an example in an initiative to weaken what we regard as fundamental workers’ rights? If that is a measure of the Government’s sensitivity in dealing with industrial relations, I really advise the Government that they are better off staying out of it, because it will make matters so much worse.
Lord Callanan (Con)
I readily concede to the noble Baroness that many public services are under pressure, despite the record sums that we are spending on them. Of course, there are pressures on many public services; I entirely accept that. I do not know the details of the fire and rescue services consultation, but I know that the noble Lord, Lord Sharpe, is very happy to continue to engage on that issue.
Baroness Jones of Moulsecoomb (GP)
I am so sick of that line about the record amounts being spent on our public services when a lot of that money goes to private companies, which employ nurses and doctors because the Government have allowed our public services to be so understaffed. Please stop misrepresenting the situation.
Lord Callanan (Con)
The noble Baroness is getting off the debate. I am very happy to debate these points with her another time, but I think I will stick to the amendments.
Lord Callanan
It is the fact that we are spending record amounts on these services.
Lord Callanan (Con)
I appreciate that the noble Baroness has a different opinion on how the money is spent, and with whom. That is an unarguable fact. Perhaps we can save the debate for another occasion when we are not talking about this legislation.
Minimising what the minimum service level could be sets a significant legal restriction on the ability to achieve this balance and would likely result in the public continuing to suffer the disproportionate impacts that strikes can have. Let me again thank my noble friend Baroness Noakes for her contribution; she eloquently highlighted the potential perverse consequence of Amendment 13, and I totally agree with my noble friend.
The Government value employers, employees, trade unions and their members, and members of the public, who pay for many of these services, being able to participate in the process of setting minimum service levels through the consultations that are required by the legislation. This amendment would reduce the importance of that process, and in turn reduce the influence that these important groups have.
The noble Baroness, Lady Chakrabarti, has left us, but it remains the case that any regulations that set minimum service levels in specified services will need to be compatible with the European Convention on Human Rights, including Article 11. Should any regulations go beyond what is necessary to achieve the aims of setting minimum service levels, which resulted in a breach of the ECHR, a court would be able to grant such remedy as it considers just and appropriate, following a judicial review. Levels of staffing on non-strike days will no doubt be one of the factors that they may wish to consider. I hope that this reassures noble Lords that we will act in a way that is proportionate, and so that there are appropriate routes for stakeholders to challenge any MSLs that they believe have been set at too high a level.
Amendment 18 deals specifically with health services. It seeks to delay any implementation of minimum service levels in health services on strike days by first requiring the Government to establish appropriate staffing levels on non-strike days through primary legislation. As always, it was a pleasure for me and the noble Lord, Lord Markham, to meet yesterday with the noble Lords, Lord Patel and Lord Kakkar, to discuss the amendment. I am grateful that both noble Lords took the time to explain their concerns. I bow to their superior knowledge of and service to the healthcare system, and for their contribution to the debate which, as ever, was constructive. Many of the points raised by the noble Lord, Lord Patel, were discussed in the earlier grouping; I know that the noble Lord was listening so I will not repeat all the points made by the noble Lord, Lord Markham, but I am very happy to have further discussions with both noble Lords if they think there are outstanding issues that we have not sufficiently covered.
I would say that the responsibility for issuing work notices is with the employer, rather than the Secretary of State, precisely because individual employers know better what level of staffing is required to achieve minimum service levels. The noble Lord, Lord Collins, will be irritated but I also repeat and emphasise the point that there is no statutory duty in the Bill on an employer to issue a work notice.
As we discussed, however, strike action in some areas of health services can put lives at risk or cause serious harm to patients. In many cases, it has the potential for far-reaching consequences for members of the public who are not directly involved in the dispute. As the consultation for applying minimum service levels in the ambulance services sets out, the aim is to protect life and health, and it is only right that the implementation of minimum service levels, where required, is not unnecessarily delayed.
I will pick up the point on non-strike days. Responsibility for staffing levels, in the Government’s view, should remain with clinical and other leaders at a local level, responding to local needs and supported by guidelines and national and professional bodies and overseen and regulated in England by the Care Quality Commission. People have been unable to access work, healthcare and education and been left worrying whether an ambulance would even be there when they needed one. Businesses have also been severely impacted. It is the Government’s view that these amendments would only delay or disrupt our ability to act on the disproportionate impacts that strikes can have on the public. Therefore, I hope the noble Lord will be able to withdraw Amendment 13.
Lord Fox (LD)
My Lords, first, I thank the Minister for his response on fire and rescue, and I suggest to the noble Baroness, Lady O’Grady, that she and I arrange to meet the noble Lord, Lord Sharpe, to take this further. She better articulated the points that I tried to make on Second Reading on the inappropriate choice of these examples in the consultation. I continue to believe that they are inappropriate, and she confirmed that in my mind.
I am always pleased to take drafting notes from the noble Baroness, Lady Noakes. She has infinitely more experience in parliamentary drafting, and if she could perhaps jot some amendments to my amendment, I would be happy to use those on Report. I was, however, delighted that that was the point she decided to upbraid me on; she did not upbraid me on any of the actual arguments I made. I will notch that as an argument won if all she can call me on is my parliamentary draftsmanship.
I move on to the substantive. It is awful when someone references their own Second Reading speech, which I am now going to do. I welcomed the Government introducing the concept of service levels, because the Government have brought this on themselves. They have opened this Pandora’s box, so they cannot be surprised that your Lordships are now pushing back on what the day-to-day, non-strike service levels in all the services mentioned in the Bill will be. It is the Government’s doing that we are now having this debate. I am afraid I cannot speak without having consulted the noble Lords opposite, but I did not think the Minister’s response on non-strike-day service was even attempted, never mind adequate. There is more work to do in this area, and I hope we can debate this further.
The point that the noble Lord, Lord Kakkar, made—which had been brought up by my noble friend and the noble Baroness, Lady Chakrabarti—about legal jeopardy and the Government or employers opening themselves up to legal redress from potential patients, or other people in other services, is very clear. Again, I do not think that the Government have addressed that issue properly. As soon as there are marks in the sand, there will be lawyers able to exploit those marks on behalf of their clients. We already know how much it is costing the National Health Service, but it will cost the National Health Service a great deal more. It is already costing the National Health Service billions of pounds.
It is clear to me that the Minister did not even address, really, the key issue of this group, which is where the minimum service level approaches or indeed reaches 100% of the workforce in a particular service. With respect to the noble Baroness, Lady Noakes, I made the point with respect to the fire service and signal services as well. It is clear to me, and the Minister has confirmed, that the consultation level could result in 100% of a workforce being required in a work notice, in name, to come to work to meet the minimum service level as delivered with very little consultation and virtually no parliamentary approval. That is, to all intents and purposes, banning strikes. That said—and I am sure we will come back to it—I beg leave to withdraw Amendment 13.
Strikes (Minimum Service Levels) Bill
Thursday 23rd March 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 97-II Second marshalled list for Committee - (21 Mar 2023)
Baroness Randerson
“(5) Regulations made under this section in relation to strikes affecting services in an area for which an elected mayor is responsible may not be made without the consent of the elected mayor for that area.”Member’s explanatory statement
This amendment would require the consent of the relevant elected mayor before minimum service levels could be set in relation to an area for which an elected mayor was responsible.
Baroness Randerson (LD)
My Lords, I will speak to the amendments in the group starting with Amendment 14 in the name of my noble friend Lord Fox. This group is all about devolution. The Government have hyped up their commitment to devolution in England, so Amendment 14 is in line with the proposals in the levelling-up Bill and in Bills on the powers of existing mayoral authorities. In England, an increasing number of those have great powers over transport—for example, bus franchises—so it is logical that elected mayors should be consulted by the Government before they intervene with minimum service levels.
I move on to Amendments 19 and 49 in my name, which refer to the much stronger devolution that has existed in Wales and Scotland and, we hope, will be returned in Northern Ireland in due course. Amendment 19 refers to Part 1 of the Schedule, which relates to minimum service level regulations that may be applied by UK Government Ministers to the list of services specified in the Bill. The key point is that most of these services—health, fire and rescue, education and most of transport—are devolved. Only the decommissioning of nuclear installations, management of radioactive waste and so on, and border security are reserved matters falling to the UK Government. Once again, we have this Government riding roughshod over the core business of devolution. Even border security could be argued to be a very legitimate interest to the devolved Administrations. For example, the Welsh Government owns and runs Cardiff Airport, and that would clearly be directly affected if there were a dispute with border security staff. Similarly, the safe and efficient operation of the several very important and significant Welsh ports is of direct concern to the Welsh Government. In practice, you could not impose a minimum service level without consultation and close co-operation.
I need to point out here that the Welsh Government have a much more positive relationship with public sector trade unions than that between the UK Government and trade unions in England. Although they have not totally avoided strike action in Wales recently, it has certainly been much less intense and acrimonious. The Welsh Government have adopted more of a social partnership approach, and we have seen none of the provocative rhetoric that we have seen in England.
Amendment 19 is very modest: it simply asks for an obligation for proper consultation with Welsh and Scottish Ministers before regulations are made. It reflects similar provisions in the Civil Contingencies Act 2004. It specifies that a senior Minister of the Crown should undertake this consultation because we have lately had repeated evidence that this Government have failed to interact at the appropriate level with Ministers in the devolved Administrations, whom they seem, on occasion, to regard as insignificant juniors. Very recently, in the debate on the retained EU law Bill, we were repeatedly referred to officials as the appropriate level for such links. If the UK Government decide to intervene to specify minimum service levels for devolved services, that is a political decision, and the very least that they should do is ensure that Ministers take the lead in that political process.
Quite apart from the need to respect devolution, there is considerable scope for confusion if the UK Government decide to define what they regard as an MSL without close liaison with the devolved Administrations. Let us take health as an example: waiting times for treatment are defined differently in Wales and England, as are ambulance response times, so one size definitely does not fit all. The very simple Amendment 49 takes a much more radical approach. By leaving out “Wales and Scotland”, it would limit the extent of the Bill to England. That would reflect the points that I made previously: most of the public services specified are devolved, and even those which are not have a close interaction with devolved services.
During the pandemic, for instance, we became acutely aware of the differences in organisation and ethos between the UK Government’s approach and that taken, for instance, in Wales, but which I also observed in Scotland. There are plenty of stresses in the delivery of Welsh public services. I do not defend the current standard of some of those. They are under acute stress. If this comes to a head in the form of strikes, it is unlikely that dictation from the outside by the UK Government will help the situation.
Finally, I remind noble Lords that the UK Government are just the Government for England when we talk about strikes in schools or in the NHS, for instance, and other services specified in the Bill.
Lord Thomas of Cwmgiedd (CB)
My Lords, I speak in support of Amendment 49. All the points arise in relation to it, so I do not think it necessary to go into the other amendments. I will make six points.
First, I do not believe that it is contested that a number of the services covered by the Bill are effectively within the control of the Governments of the nations of Scotland and Wales, and that is reflected everywhere in the consultation that has so far been made. However, when you take that, you have to consider whether you can disentangle services during periods of strikes from services elsewhere. On our previous day in Committee, the noble Lords, Lord Kakkar and Lord Patel, eloquently put why it is quite impossible to disentangle them. What I simply do not understand at the moment is why, if you have a minimum standard on a strike day, that is not the minimum standard across all these areas on every other day. How can the public be expected to think that in strikes there is a minimum standard? There is not.
Baroness Noakes (Con)
My Lords, since the noble and learned Lord, Lord Thomas of Cwmgiedd, used what I said earlier in aid of his arguments, I thought I ought to say a few words. First, unfortunately I do not speak for the Government in any respect. Indeed, the Government are generally to the left of my views, so my views are indeed my own. I have said that this Bill is about protecting service levels, in particular for those who have paid through their taxes for public services to be provided to them. That is the aim of the Bill. The means of the Bill is via trade union and industrial relations legislation. That is a reserved matter, and I think the Government have to accept the point.
Having said that, I of course agree that the devolved Administrations should be consulted on minimum service levels because they are bound to affect their citizens. I believe that the devolved Administrations would want to be involved in any consultation, to put across the views of their citizens as to the appropriate minimum service levels that their citizens should be demanding. However, I do not think it goes beyond that, and I do not think it is necessary to go to the extent of the amendment from the noble Baroness, Lady Randerson, which talks about meaningful consultation. They are of course going to be consulted on these matters.
When the noble Baroness, Lady Randerson, introduced Amendment 14, she very carefully said that elected mayors should be consulted. That is not what Amendment 14 says. It says that regulations cannot be made
“without the consent of the elected mayor for that area.”
That would mean, for example, that any minimum service level which affected a train service between London and Manchester could be vetoed by either the elected Mayor of Greater Manchester or the elected Mayor of London—or indeed Birmingham. That seems to me to be complete nonsense. I believe they should be consulted because they will want to input the views that protect services for the residents in their areas, but we should not go as far as requiring consent.
Baroness Bryan of Partick (Lab)
My Lords, I speak in favour of Amendments 19 and 49 in the name of the noble Baroness, Lady Randerson, which try to mitigate in one and contain in the other the level of interference that the Bill intends to make into areas that are clearly devolved. This is in a long line of legislation that has trampled over the accepted responsibilities of devolved Governments. The United Kingdom Internal Market Act, the Nationality and Borders Act, the Subsidy Control Act, the Elections Act, the Levelling-up and Regeneration Bill and the retained EU law Bill are just a few of the Bills that have impacted on the devolved Administrations.
On this occasion, in the Bill’s list of six services to be targeted I found only one that was reserved and that was border security, though I take the point made by the noble Baroness, Lady Randerson, that airports and ports will be dragged into that. Health services, education, fire and rescue services, transport services and the decommissioning of nuclear plants are devolved responsibilities, and the elected Members of the Scottish Parliament and the Welsh Senedd are ultimately accountable for the delivery of these services. The Minister and his colleagues have no electoral mandate to interfere in these services. Not only does the Bill seek to allow government Ministers to interfere in devolved areas of competency but it does not even have the good manners to outline in the body of the Bill how they would use these powers. Parliament is yet again being asked to put its name to a blank cheque.
It may surprise the Minister to know that both the Welsh and Scottish Governments have respectful working relationships with trade unions in their countries. In Scotland, the fair work framework has a different model of industrial relations from that adopted by the UK Government. The framework states that there are many examples in Scotland and elsewhere of how the collective voice of trade unions working with employers has addressed the wide range of organisational challenges and contributed to organisational improvements. The Welsh Government are committed to the Fair Work Commission in Wales, which respects and encourages trade unions to have a significant role in workplaces, society and policy-making. How different that is from the approach taken by this Government. These fair work arrangements do not prevent industrial disputes but allow constructive dialogue between government, employers and trade unions, so that when disputes occur there is greater good will to resolve them.
Baroness Finlay of Llandaff (CB)
My Lords, it is a pleasure to follow the noble Baroness, Lady Bryan, and to add to her remarks. I strongly support Amendment 49 and point out to the noble Baroness, Lady Noakes, that the phrase in Amendment 19 of consultation implying a view to meeting an agreement is particularly important because in this Bill we are talking about devolved competencies directly, and I am afraid the track record has not been that good. Indeed, the Bill seems to have been announced without any prior consultation with the Welsh Government at all, and officials have been reluctant to share substantive information relating to the Bill which is not in the public domain but does affect devolved competencies.
In paragraph 141 of Schedule 7A to the Government of Wales Act it would seem that legislative consent is required over aspects of health, education, fire and rescue, and certain transport services. But the Welsh Government appear to be set to vote overwhelmingly to refuse legislative consent, and for good reason. As the Government themselves have conceded, the services are
“run differently in England, Scotland and Wales and are the responsibility of Scottish and Welsh Governments respectively.”
With that responsibility comes a requirement to set pay and terms and conditions of service, and those cannot be disentangled from strategic and operational decisions taken in Wales and Scotland. To give those powers to Westminster and override the devolved legislations would effectively undermine their ability to run the services that they run as effectively as they see fit to meet the needs of the population—the population which have voted those devolved Ministers into their positions in government.
There is a different approach to the unions, as has already been said. There is a model of social partnership, which I am familiar with in Wales. It was notable that, even going back to 2015, the junior doctors did not go on strike in Wales whereas they did in England, and the current rail strikes have shown a different pattern of working because an agreement was made with Transport for Wales.
It certainly is not incidental that this has been included in the Bill, because it threatens the Welsh Government’s ability to maintain a model that is interwoven with those responsibilities, as I have said. In fact, those services are essential to the running of the devolved nations. The approach would undermine accountability in Wales, as the Bill provides no role for the Senedd, despite the strong argument that it has the competences to legislate in areas contained in the Bill. The Secretary of State being able to set minimum service levels for local services in most parts of England is already questioned by some, but it seems almost an affront to devolved responsibilities to say that that could override the responsibilities in the devolved nations.
The consultation process set out in the Bill fails to specify who should be consulted; it is whoever the Secretary of State sees fit, and they do not seem to have to pay regard to the outcome of that consultation. That means there is no role for the Welsh Ministers, who are actually responsible for running the services. If the Bill is passed, the backdrop to negotiations undertaken in Wales will be fundamentally altered. There is a concern—a valid one, I think—that that could be used for political ends, because there is no protection in the Bill from a Secretary of State who wishes to provoke or prolong a dispute for political ends.
Sadly, no Minister in Wales or Scotland can take comfort from assurances given and being told that they will be consulted. Similar assurances were provided over the financial powers in the internal markets Act, but those are now being used to ensure that Welsh Ministers cannot take the decisions over EU successor funds provided in the form of the shared prosperity fund and the levelling-up fund. I hope the Committee will see that in order to maintain the integrity of the UK, it will be important to take Wales, Scotland and, I think, Northern Ireland out of the wording in the Bill.
Baroness Noakes (Con)
Has the noble Baroness realised that the Bill does not actually require any employer in Wales to issue a work notice? The only thing that the Secretary of State will be doing is setting minimum service standards. The implementation via work notices is entirely at the option of the employers, which will be either the Welsh Government or one of the various Welsh bodies that are answerable to the Welsh Government. I understand the point that she was trying to make, but she was implying that the UK Government were interfering in the operation of the services, which the Bill does not come close to doing.
Baroness Finlay of Llandaff (CB)
I remind the noble Baroness that we have already had a debate over the difficulty of setting minimum service levels and the dangers thereof. Minimum levels for nursing have already been set in Wales, for example, so we cannot disentangle the one from the other. That is the point that I was trying to make.
Baroness Donaghy (Lab)
Yes—“Come into my parlour”.
I attended the Wales TUC and the Scottish TUC for well over a decade—some might say I do not have a home to go to. That helped me to understand the completely different cultures of those countries and the completely different relationship that the workforce, the trade unions, employers, Governments and successive Administrations had with each other, and the respect that successive Governments had with the trade unions. It is not just that this is a damaging Bill; it is an affront to those countries that there should be some imposition of power. That is what we are talking about, not whether employers should be forced to issue a work notice but that there will be an overall power, the details of which are not known, which the Welsh and Scottish Administrations will have to accept.
We are talking here about the tone of employment relations, which has always been completely different. It has been conducted in a non-legalistic way. There have been as many strikes, and I am not saying that the services are particularly better in Wales or Scotland, but the tone of the relationship is what could be so badly damaged.
It was most interesting at Question Time today for those noble Lords who were here to hear the noble Baroness, Lady Vere, talking about the distinction between the workforce and the trade unions. I have been trying to make the point all along that this Government are doing their best to separate trade unions from their workforce. The noble Baroness was very keen to assure the House that she was not blaming the workforce for people not doing non-contractual rest-day work; she was blaming the trade unions for those members not doing non-contractual rest-day work. That in any case is a bad practice that has grown up over the years, which has really been because members have wanted a better standard of living, but are we really saying that a minimum service level will have to include this non-contractual rest-day working, or will it not include it? Or will it not be mentioned at all in any document?
The Minister is shaking his head and smiling. I realise that he must be getting very fed up of listening to all of this. Maybe that will help the Government next time to bring forward a Bill that actually has some content in, and then he will not be so bored.
I do not know how many people here watched “Boys from the Blackstuff”—some Members are certainly too young for that—but I am reminded of the character called Yosser Hughes, who went around saying “Gis a job”. In this case it is the Government saying, “Gis a power. We don’t know what we’re going to do with it, we can’t tell you yet, we promise to consult you, but gis a power.” I think the Government are hoping that, if they carry on repeating that for long enough, everyone will sit back and say, “Oh all right, let’s see what they do with it”. As far as I am concerned, that is the main principle: the Government are asking us to give them a power and not telling us how they will use it.
Lord Balfe (Con)
My Lords, there is a feeling growing up or being put around this House that somehow the Conservative Benches are historically against trade unions. These Benches are not historically against them. I spent 25 years in the European Parliament, and my noble friend the Minister spent some years there. I spent some time on the European Economic and Social Committee, which, as with Scotland and Wales, bases itself on trying to get a consensual view of industrial relations. If you want to improve the wealth of the country, that is the way forward. That is what made the German economy as successful as it is today: the works councils and the compulsory consultation. We seem to be in danger of drifting in the opposite direction, but I remind the Minister that the great tradition of Christian democracy in Europe, which has a much wider following than conservatism, is based on working between social partners.
This legislation is, let us say, imperfect. It has great difficulties and is almost unworkable, and I do not know why the Government are pursuing it. I hope that maybe at the end of this series of debates they will decide to pause it and not go forward. As these amendments show, it is going to be very difficult to implement, even if the Government wanted to. Set aside the local mayors, which I think are impractical; railway trains run between our countries and planes fly between them, while I am told that some services, such as organs and blood in the health service, are organised on a national basis so that people can get the best service wherever they live. We are after all in a United Kingdom, as this party often says.
I ask the Minister to look at hitting the pause button on this piece of legislation because even if it is passed it will not work, and it is not good government to pass legislation that just will not work.
Baroness Finlay of Llandaff (CB)
My Lords, may I ask the Minister, when he comes to sum up, if he could clarify for the Committee why he was shaking his head so strongly over his experience in the European Parliament? I think it would be quite helpful to clarify that, given the remarks of the noble Lord, Lord Balfe.
Lord Collins of Highbury (Lab)
My Lords, this has been an incredibly valuable discussion. The noble and learned Lord, Lord Thomas, is absolutely right. One of the problems we have is that, in the past, good governance was Green Papers, White Papers, a debate about policy and then a considered approach to what sort of legislation would be appropriate. The other thing we are jumping around between is the question: is this about minimum service levels, or is it a power grab by the Government?
The reality is that we have minimum service levels, but they are negotiated locally, taking in many factors. As the noble and learned Lord said, we are talking about devolved matters. It is the responsibility of the Welsh and Scottish Governments to set up and organise their health, education and other services. It is not just about the devolution settlement. I have heard Government Ministers, on the levelling-up agenda, talk about how we want to push responsibility locally. But suddenly that sort of politics goes out of the window when it comes to trade unions. I heard what the noble Lord, Lord Balfe, said about his party, but the simple fact is that this is a power grab by Ministers.
We will no doubt hear the Minister respond that work notices are a matter for employers, and no one is forcing people. Let me ask the question: if the Minister is going to set the minimum service levels but a local authority, a devolved mayor or the Welsh Government do not force through work notices, will that leave those authorities that fail to implement it in the way the Government suggest open to legal action? Will they face a challenge from those who claim they were denied services? We need a very clear answer to that question. The Bill was published without any consultation of the people who will have the responsibility to deal with it and implement it. Even the consultations taking place now are using language that I find difficult to understand, in terms of the responsibilities of devolved authorities and local mayors.
I am trying to avoid being repetitive—I know that will get the Minister’s head nodding—but fundamentally we will keep coming back to certain principles. Let us just focus on these amendments and have some clear answers to questions. If it is down to the devolved Administrations and local mayors to determine something, does it leave them vulnerable to legal challenge?
Lord Fox (LD)
The noble Lord might like to note that, as we were sitting, we received an email from the noble Lord, Lord Markham, which partially responds to his question. It would be rather helpful if we could have letters from Ministers with some notice, rather than simultaneous to our arrival in this Committee. It reinforces the uncertainty around legal redress, the point which the noble Lord, Lord Collins, just made.
Lord Collins of Highbury (Lab)
I appreciate the noble Lord drawing that to my attention. I have not had the opportunity to read the email, so maybe I will be jumping back up when the Minister responds and I have been able to read it.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, I thank the noble Lord, Lord Fox, and the noble Baroness, Lady Randerson, for their amendments. Amendments 14, 19 and 49 relate to devolved matters, either via devolved Governments or local government. Amendment 14 seeks to require the consent of elected mayors before minimum service levels could be set in an area for which an elected mayor is responsible. The noble Baroness, Lady Noakes, is right to point out that this is unworkable. Consultations have been published on minimum service levels for ambulance, fire and rail services, and we welcome the engagement of elected mayors on those consultations. Similarly, Amendment 19 seeks to require consultation with Scottish and Welsh Ministers before minimum service level regulations are made in Scotland or Wales, with a view to reaching an agreement. Amendment 49 seeks to limit the territorial extent of the Bill to England.
The noble Baroness, Lady Randerson, raised concerns about the impact of this legislation on devolution, and this is an important issue. However, employment rights and duties and industrial relations are reserved in Scotland and Wales. That said, I reassure her and the noble and learned Lord, Lord Thomas of Cwmgiedd, that my noble friend the Minister met both the Welsh and Scottish Governments to discuss the Bill.
The Government have a duty to protect the lives and livelihoods of citizens across the United Kingdom. The disproportionate impacts that strikes can have on the public are no less severe on people in Scotland and Wales or on those living in areas with elected mayors. They have every right to expect the Government to act to ensure that they can continue to access vital public services during strikes.
The Government therefore resist these amendments. However, as I said earlier, nothing in the Bill requires an employer, which might include a devolved Government or an elected mayor, to issue a work notice. That would include the example of Cardiff Airport that the noble Baroness cited.
Lord Thomas of Cwmgiedd (CB)
On that point, which is repeatedly coming up, would the noble Baroness be able to assure the Committee that we can have a clause in the Bill—because courts sometimes interpret “may” as meaning “shall”—that makes it very clear that no legal obligation whatever rests on any person whatever to implement the minimum standards set out in the Bill, unless the employer decides to implement a notice? If the case the Government are making is that the Bill has no effect unless the employer does something, that needs to be spelled out with crystal clarity. If the Ministers would like, I will have a go at drafting a clause to save the overburdened so-called parliamentary counsel.
Baroness Bloomfield of Hinton Waldrist (Con)
I repeat at the Dispatch Box that under the Bill it is a statutory discretion and not a statutory duty for employers as to whether to issue a work notice. It is a matter for the employer to consider any contractual or other legal obligations it has in taking this decision.
We of course hope that all employers will want to apply minimum service levels where they are needed. In reference to the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, I say that, before making minimum service level regulations, government departments need to consult on the appropriate minimum service for their sectors. This will enable detailed evidence to inform the development of minimum service levels in specific services. This includes understanding the differences between services in each sector across Great Britain and the implications for setting minimum service levels. We will continue to engage with the devolved Governments on the geographical scope of the regulations.
The noble Lord, Lord Collins of Highbury, is correct that of course we would rather have a negotiated agreement on minimum service levels. I also reiterate, in response to the question from the noble Baroness, Lady Finlay, on why my noble friend was shaking his head, that we think there has been a misunderstanding. There is no statutory duty but, as I said, rather a statutory discretion under the Bill for employers to issue work notices.
Baroness Chakrabarti (Lab)
Does the Minister understand the concern and the problem? “May” can become “must” if someone sues an employer for not having issued work notices, on the basis that the Secretary of State took the view that a minimum service level requirement should be there but the employer chose not to issue work notices but to carry on negotiating, et cetera, and a third party then challenges that discretion and the more gentle decision made under it. That is how “may” can become “must”, and that means litigation, cost and more aggravation. I believe that this is the concern that was expressed by the noble Lord on the Liberal Democrat Front Bench last time and put so eloquently today by the noble and learned Lord.
Baroness Bloomfield of Hinton Waldrist (Con)
I hear and understand the noble Baroness’s concerns, but I default to the Government’s position: the Bill gives only a statutory discretion, not a statutory duty, to the employer on whether to issue a work notice.
Lord Fox (LD)
I will pursue this “may/must” argument from a slightly different direction. One of the arguments made in the letter of the noble Lord, Lord Markham, is that the unsatisfactory nature of the current situation is that the Government were unable to secure a national agreement from the ambulance services on the level of cover. The Minister will be aware that we do not have a national ambulance service; we have a series of ambulance services across the country. Under the “may/must” doctrine that the Minister set out, it is perfectly possible that one ambulance service in one area “must”, while another one chooses not to; in other words, we would still have a patchy service across the United Kingdom and the Government would have failed to achieve the objective that the noble Lord, Lord Markham, set out in his letter. So, given the good faith that I put in the Minister’s comments, I do not understand what problem this solves, because the compulsion—or lack of it—within the Bill means that we still do not have a national agreement on service levels.
Baroness Bloomfield of Hinton Waldrist (Con)
The Government’s position is that we would rather have a voluntary agreement than a compulsion to issue notices. Of course, we would hope that each employer would choose to accept minimum service levels, because the Government are here to protect the level of service available to all UK citizens, not just those in England.
Lord Fox (LD)
The noble Baroness has set up a whole new stream of thought because now she is saying that there is an ability for government to compel the employer to give a notice. We all hope that there will be voluntary agreement—that is where we are now, and it is what the Bill seeks to undermine.
Baroness Bloomfield of Hinton Waldrist (Con)
I do not accept the noble Lord’s points at all, but I will continue my answer to the noble Lord, Lord Collins. Of course, we would rather have a negotiated agreement on minimum service levels, but the Government resist these amendments. I hope that I have been able to reassure noble Lords—I feel I have not entirely—on “may” versus “must” and the compulsion, the statutory discretion or the statutory duty. With those comments, I ask the noble Baroness, Lady Randerson, to withdraw her amendment.
Baroness Randerson (LD)
I thank the Minister and all who took part in this useful debate. We started with the noble and learned Lord, Lord Thomas, who pinpointed the persistent erosion of devolution. He called the Bill “Henry VIII on stilts”, and the noble Baroness, Lady Donaghy, called it “Gis a power”—I think both phrases will stick in our memories. The noble Baroness, Lady Noakes, said that of course the devolved Administrations will be consulted, but the problem is that, persistently, they have not been consulted at the right levels and the right point in time. There has been a thin façade of last-minute, low-level consultation, and this has not worked—it is not consultation in the proper sense of that word. The Minister did not reassure me when she said that it was complete nonsense that elected mayors should need to give consent—that shows a lack of understanding of the concept of proper consultation.
The noble Baroness, Lady Bryan, gave us a useful long list of recent Bills that have undermined devolution—I will copy it out when I read Hansard so that I remember each one. The noble Baroness, Lady Finlay, took the points further by raising the fear that UK Ministers would use powers in the Bill for political ends. The truth is that this is a heavily political issue and, in England, the wrong sort of political interference has created problems in industrial relations that have not existed in Scotland and Wales to the same extent, because industrial relations have been handled with more sensitivity there. I have no doubt that the UK Government have their own reasons for wishing to sharpen relations with the unions, but that is nevertheless a political issue.
Lord Allan of Hallam
“(5) Before making regulations under this section the Secretary of State must lay before each House of Parliament a statement outlining how the regulations are both necessary and proportionate.”Member’s explanatory statement
This amendment would require the Secretary of State to outline why regulations made under this section are necessary and proportionate before making them.
Lord Allan of Hallam (LD)
My Lords, throughout the passage of the Bill, the Government have repeatedly said that we are talking about last-resort measures that they are reluctant to, and hope they will not have to, introduce. In this group, we will test the extent to which they genuinely see these as last-resort measures.
Collectively, the amendments could be described as seeking to introduce additional elements of friction, before the Government move to regulating for these minimum service levels. Friction can be a useful thing in the right places: if I wish to enter my own house, I would like that to be as frictionless as possible, but if the police would like to enter it to carry out a search, I would like there to be a reasonable level of friction, with them having to prove why they have the ability or need to do that, and to go before a court to have their need tested in front of others. So, here, we are trying to put those kinds of friction in place so that Ministers do not do what we fear: rush to regulate in the heat of action in the same way that they have rushed to bring this legislation before us in the first place.
Amendment 15 in my name uses two concepts that are familiar to those who work with human rights legislation—the notions of necessity and proportionality. I am not practised in public human rights law, so I will defer to the noble Broness, Lady Chakrabarti, who I am sure will have things to say on this group of amendments. However, I have had to make decisions on freedom of expression and surveillance questions on online platforms where these tests are useful and applied because they seek to balance different rights that we have. It has been generally accepted in our debates that we are talking about fundamental human rights here—the right of an individual to withdraw their labour. When considering whether the Government in the public interest can override that right, these necessity and proportionality tests are the right ones, just as they are in other contexts such as freedom of expression and surveillance.
I am sure that the Government in their response will refer to the human rights certification that is on the front page of every piece of legislation and say that it is an implicit commitment. Of course, no British Government could ever not apply tests of necessity and proportionality because they have signed off the legislation as compliant. However, there are significant advantages to making these tests explicit in this section of the Bill.
The amendment would force the Minister to consider the tests and to apply them explicitly before making regulations, and to publish their deliberations for scrutiny. In practice, this would mean that the Minister would have to ask the team that is putting together the case for the regulations to show its workings; this would have significant value if those workings were available to all of us. That is not least of defensive value for the Government, because at some point they will have to explain why they felt compelled to make the regulations and why they passed the threshold.
I look first at the necessity test. The Minister would need to be satisfied that all other avenues had been tried, which in this case largely means negotiated agreements to provide cover. The risk with the Bill as it stands is that Ministers will be satisfied with vague assurances. They will ask, “Did you ask for voluntary cover?” “Yes, Minister, we did.” “Did they agree?” “No, Minister, they didn’t.” “Okay, let’s move to a regulation.” The test may be no more than that and, indeed, in the letter that has just arrived from the noble Lord, Lord Markham, which we are now considering, one senses an element of that with the Government’s argument around ambulance services: “We asked; we didn’t get one and we therefore now need this piece of legislation.” That is not good enough and, if this is truly a last resort power, we want the Minister to press for all avenues to have been explored including the potential offer of carrots to the workforce for agreeing to provide minimum services, as has happened in many other countries. We debated that at length on the first day of Committee. It is not simply a question of employers ordering their workforces to provide minimum service levels; in many institutions there is a negotiated agreement whereby something is offered to the workforce in return for providing minimum service levels. What we do not want is a necessity test that bypasses and ignores that option altogether. By putting that explicitly in the Bill, the Minister would have to be satisfied that all reasonable steps had been taken and there was no other way in which to guarantee minimum service levels. That is the right necessity test when one is overriding somebody’s fundamental rights, as we have all agreed is happening in this case.
I turn now to the proportionality test. It is included to make sure the provision is done properly. There is a risk of a superficial version of this test—one which is effectively a cost-benefit analysis. We have seen this again in the context of the ambulance debate. The Government will argue that the benefits of having life-saving ambulance cover outweigh the cost of some workers not being able to strike. At that superficial level that sounds reasonable, but it is not a true proportionality test. To do that properly we need to dig into the next level, where we look at the likely actual impacts. There are two areas where the proportionality test might be more complex. First, if there is any likelihood that workers could end up being dismissed—as we have accepted is a potential outcome of this legislation—in this case the costs are dramatically different and that equation would change. Providing emergency cover versus dismissal of workers is a different test from emergency cover versus simply losing the right to strike.
Secondly, if the regulations did not result in more people showing up for work—for example, because people take other forms of industrial action, which they are entitled to do; there are all sorts for ways in which the climate could be poisoned to such an extent that one ends up with fewer people at work than one would have done absent the regulation—the benefits would not have been realised and the proportionality, the cost-benefit equation, changes. This amendment therefore proposes the kind of proportionality test that I hope the Minister would apply by rigorously looking at all the costs and benefits, and is then prepared to publish and defend that analysis rather than making simplistic assumptions. The amendment simply seeks to introduce that rigour with publication to make sure that it happens.
Other amendments in the group will add other forms of beneficial friction and I will leave it to their proponents to argue for them, but I hope that I have made a reasonable case for the Government to accept the additional clarity offered by Amendment 15. I beg to move.
Baroness Chakrabarti (Lab)
I speak in support of every amendment in this group, even at the risk of offending the noble Baroness, Lady Noakes. At first blush, her Amendment 17 enhances my noble friends’ amendment and does no mischief to it whatever because. by including the impact of the legislation on service users in the list of other groups of people affected, she has, perhaps inadvertently, introduced an element of proportionality into the assessment of the legislation. I completely agree with the noble Lord, Lord Allan of Hallam. I perhaps would not have chosen his friction metaphor because it is the legislation itself that is introducing friction into what ought to be partnership industrial relations. This group may not be Henry VIII on stilts, but it is Henry VIII revisited. What every amendment in the group at least purports to do is to introduce an element of transparency into the process before the Secretary of State inflicts these regulations on the public or on Parliament.
I want to be clear, as I have been in the past, that the Bill is not desirable or necessary but if such minimum service level agreements were in a particular instance desirable, necessary and proportionate to comply with convention rights, as the noble Lord, Lord Allan, rightly pointed out, it would be for a number of reasons better for everyone—including Ministers—to do this by way of purpose-specific primary legislation. In a moment where it was truly necessary to impose these agreements because they could not be reasonably negotiated, it would be better for legal advocacy to do this by way of purpose-specific primary legislation. Why? Because it would be purpose-specific and because any court subsequently considering the necessity, proportionality and compliance with the law of the measure would give greater deference to the scrutiny and process undertaken in both Houses of Parliament in the context of a Bill rather than regulations.
Lord Balfe (Con)
I say to the noble Baroness that, early in my career, I asked a senior trade unionist who had been the best Minister of Labour, and he said Walter Monckton followed by Iain Macleod.
Baroness Chakrabarti (Lab)
That is even more wisdom from the noble Lord, Lord Balfe.
That concludes what I wanted to say about this group of amendments, and I look forward to hearing later, I hope, a word of consensus from the Minister in response.
Baroness Noakes (Con)
My Lords, I think that the noble Baroness, Lady Chakrabarti, has tried to damn my amendment with faint praise, so I had better explain it and my approach to this group of amendments.
First, I remind the Committee that this is not draconian legislation, as the noble Baroness has just suggested. It does not impose minimum service levels; it merely allows the Government to specify minimum service levels, which can then be imposed via work notices if employers so choose. That is all this legislation is doing.
This group of amendments, in various ways, is trying to make the process of establishing regulations specifying minimum service levels more difficult, and to make them harder to get through Parliament by putting more hurdles in their way. The Bill already requires consultation; indeed, consultations have already been published for three instances of minimum service levels, and that process will run its course. The departments will then produce their minimum service levels and the appropriate statutory instruments, which will be accompanied by impact assessments. All of this is perfectly ordinary practice; it does not need any of the amendments in this group.
I tabled Amendment 17 simply because the noble Lord, Lord Collins, asked in his Amendment 16 for an assessment of the impact on
“workforce numbers … individual workers … employers … trade unions … and … equalities.”
Just for the sake of balance, I wanted to remind the Committee that there is the other side: people who are affected by strike action and who want to receive services. The point of my amendment is to say: I do not support the amendment tabled by the noble Lord, Lord Collins, but if you are going require something such as this, it should not give just a one-sided picture; it should be balanced. To that extent, I am grateful for the comments from the noble Baroness, Lady Chakrabarti.
Baroness Chakrabarti (Lab)
I am grateful for that gracious response from the noble Baroness. Whatever her motivation, I agree that service users should be included in that list, not least for the reasons set out earlier by the noble Lord, Lord Allan of Hallam.
Lord Collins of Highbury (Lab)
One thing that the noble Baroness could read is the original impact assessment for the transport Bill, which said—and I will come back to this point—that there will be an impact on service users because disputes will be longer and industrial relations will be worse. The problem we have had is that that Bill and this Bill had impact assessments there were red-rated. The noble Baroness should focus on that.
Baroness Chakrabarti (Lab)
Indeed. The point is that the noble Baroness opposite and I disagree, perhaps, about what the effect will be on service users and others, but the test is necessity and proportionality, as was set out so well earlier by the noble Lord, Lord Allan of Hallam. Whatever the motivations, it is a good addition to the list, in my view.
As for the noble Baroness’s point that this is will all be voluntary and the legislation will not impose anything on anyone, that really does not hold as a matter of law—not least because, as we discussed earlier, the “may/must” point is really significant; it is not hypothetical. It is hugely significant that, when one is a given a power—whether the Secretary of State is given a power to make regulations or an employer is given a power to issue work notices—they must exercise that power rationally. They cannot ignore that they have that power; they will face litigation. That is compounded in this area because the employers may well be contracted by the Secretary of State. The Secretary of State would then have the purchasing power—the significant contractual power as the buyer of the service at one end—and would also wield regulations with the other hand. It is not completely ingenuous to suggest that this is all just helping the discussion and that there is no element of compulsion in it.
Lord Hendy (Lab)
My Lords, much of the debate on this Bill has been concerned with its substantive content, but my noble friend Lady Chakrabarti draws attention to a major problem with the Bill; namely, its form.
I remind noble Lords that last year two committees of this House reiterated long-standing principles for drafting legislation. The Delegated Powers and Regulatory Reform Committee, of which I have the honour to be a member, in its report Democracy Denied?, and the Secondary Legislation Scrutiny Committee, in its report Government by Diktat, set out those principles, which were overwhelmingly endorsed in the debate in the House on 6 January last year. The fact is that this Bill flouts those principles. That view is reiterated by the reports on the Bill by the Delegated Powers Committee, the Joint Committee on Human Rights and the Constitution Committee. In addition, as my noble friend Lord Collins has just pointed out, the Regulatory Policy Committee has described the Bill’s impact assessment as “not fit for purpose”. This raises the question of what steps this House could take to ensure that Bills comply with the principles that are essential for parliamentary democracy in this country.
I turn to my Amendment 36A in this group, which is my attempt to give some substance to—or to redress—the omission pointed out by the Delegated Powers Committee in its report on the Bill. I will read two short paragraphs from our report. Paragraph 19 says:
“The Government have chosen to put no detail in the Bill in relation to minimum service levels, leaving the matter entirely to regulations. Important matters of detail should be included on the face of the Bill, perhaps with a power to supplement those matters in regulations.”
That is my noble friend Lady Chakrabarti’s point. The conclusion, which the committee reached at paragraph 23, is:
“Given the absence of an exhaustive or non-exhaustive list in the Bill of the matters that can be included in regulations, the unconvincing reasons for this power in the Memorandum, and the absence of indicative draft regulations illustrating how the power might be exercised, the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels in new section 234B(1) of the 1992 Act is likely to be exercised. In the absence of a satisfactory explanation, we regard the power as inappropriate.”
My noble friend Lady Chakrabarti says that we can make it good by passing primary legislation. I wonder whether the Government will consider the possibility—even at this stage—of introducing amendments to put those omissions into the Bill to give it at least some semblance of meeting the format and principles for the drafting of legislation.
Lord Fox (LD)
My Lords, we should be indebted to my noble friend Lord Allan for introducing the concept of necessity and proportionality. It is a shame because, in an ideal world, the Minister would have stood up at Second Reading and set out at the outset the necessity and proportionality of the Bill. That did not happen, with due respect to the Minister, so we are having to have that debate now in Committee.
We heard from the noble Baroness, Lady Bloomfield, that the Government’s preference is to negotiate, rather than compel these MSLs. I believe that she is sincere when she says that, but we must look at what has been happening with the disputes. We have had several real-world examples going on around us. To take the rail dispute, for example, it is absolutely clear that the Secretary of State, operating behind the scenes, prevented decisions being made that would have shortened that dispute. Had this legislation been in existence, how would the Secretary of State’s hand have been strengthened even further? Would we be any closer to a resolution now? I suggest that we would have been a lot further away.
When it comes to the health disputes, it took months before the Government got around the table with nurses and doctors to negotiate and do what was needed to end those disputes. It is not clear to me that the idea that “We would rather negotiate” is absolutely on the table. We know very well that “We would rather stand back” has actually been the Government’s approach. We have to take the Government on the evidence that we have seen, rather than what we have heard in your Lordships’ House.
I turn to the short, but excellent and pithy, debate that we have been having. With the fear of damning the noble Baroness, Lady Noakes, yet further, I say that she is completely correct to focus us on the users of the services. However, I would say that the impact of days that make up a year of service disruption through strikes, regrettable though these are, is far smaller—thank goodness—than that of the day-to-day service that people experience. Perhaps the noble Baroness could focus her not inconsiderable energies on improving the day-to-day services that her Government are delivering for consumers across this country. That is the real world that most of them experience: the everyday service, not the strike day service. So perhaps she could use her energies in that direction—I am sure that everything would get better if she did.
I will say a few words about Amendment 40 in my name and a little bit about the friction that the Bill is creating within industrial relations or, indeed, in the case of my amendment, with recruitment. It is really a probing amendment to ascertain from the Minister whether he thinks that the Bill will impact the morale of existing workers and, more specifically, the ability to recruit new people. The existence of the Bill, whether or not it is used, will have a communicating effect both on the current and future employees of these services. The Government need to take that into consideration.
In an earlier group, noble Lords talked about the chronic shortage of people in many of the sectors that we are dealing with here—health, education and others. I realise that job security is not something that many Ministers experience—although the noble Lord, Lord Callanan, is perhaps an exception to that, having been a Minister for many years—but I ask him to empathise on the subject of job security, and indeed task security. As I say, that may not be something that he has experienced widely. We have to remember that the employment market is a seller’s market; there is a shortage of people to go into these services. Therefore, it is absolutely not helpful if the Government make the prospect, or the sense, of working in these services less good and less favourable.
I am not necessarily suggesting that this legislation does that. I am asking the Government what work they have done to assess what effect this legislation would have on employee morale and future recruitment. Can the Minister set out the response and the nature of that work, statistically and qualitatively? If the work has not been done, why not?
The Lord Bishop of Manchester
My Lords, I am sorry to come into the debate quite late; I had not realised we were getting so close to the end. I support Amendment 20 from the noble Lord, Lord Collins, and Amendment 40 from the noble Lord, Lord Fox. I regret that I have been unable to be in my seat at earlier stages, but I am grateful that my right reverend friends the Bishops of London and St Edmundsbury and Ipswich have passed on my concerns. Amendments 20 and 40 are absolutely invaluable. If this Bill is—regrettably, in my view—to become law, it must have all necessary consultation and evidence gathering before it.
Amendment 20 would require that an assessment of health and safety performance in the affected sector is made prior to minimum service regulations, and that is critical. As other noble Lords have said, if we look at this past winter, it is valid to ask whether what might be considered a minimum service level is reached on a daily basis even when there is not a strike going on. Assessing the level of service provided in periods when the service is not affected by strike action, and requiring that to cover the most recent 12 months, creates an important benchmark.
Amendment 40 would introduce a necessary review of the impact on recruitment and retention of staff. Research by the TUC suggests that the recruitment and retention crisis is ongoing. Something like two-fifths of public servants say that the implications of this Bill have made them more likely to consider leaving their job in the next three years. We have a crisis of vacancies in many sectors. This is not going to help.
Earlier today the noble Lord, Lord Goddard, asked a pertinent Question about the performance on the west coast rail line, and I was glad to be able to ask a supplementary to that. If nothing else, that exchange should have made clear to every one of us in this House that there is no point in setting minimum service levels for strike days when current performance is so depleted. Such poor provision of services, often exacerbated by the low morale consequent upon poor or aggressive management practices, means that acceptable minimum levels of service are just not available to customers or the public even on normal working days.
There is a duty on all of us who govern our nations to go beyond the most basic economic calculations when we are legislating to do so for the common good and human flourishing—something set out in the teaching of many religious denominations. This Bill, as drafted, fails that duty.
Lord Cashman (Lab)
My Lords, I rise to speak in favour of the amendments listed. I look to the noble Baroness, Lady Noakes, and assure her that I will not, at this point, offer my support to her amendment; I am sure that will give her great comfort. I will not repeat the points I made at Second Reading, but I believe this Bill undermines basic democratic and fundamental rights. I believe it is dangerous. It is barely drafted and badly drafted. I thank my friend the executive dean of Leeds, Professor Johnson, for the advice he has given me on the Bill.
I equally thank the Equality and Human Rights Commission and will refer to its recommendations now. I hasten to add that the commission, in my opinion, has been much muffled and muted during the last 18 months. Let me quote:
“Having carefully considered the issues, we believe the Bill raises several human rights considerations, specifically in relation to Article 4 (Prohibition of Slavery and Forced Labour), Article 11 (Freedom of Assembly and Association) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR) that require careful scrutiny.”
I believe that these amendments provide for that.
To pick at random out of the commission’s substantial documents, paragraph 4 says:
“In the human rights memorandum that accompanied the earlier Transport Strikes (Minimum Service Levels) Bill”—
to which my noble friend Lord Collins referred earlier—
“now superseded by this Bill, the case for the lawfulness of similar provisions was made partly by distinguishing the Bill’s transport-focused clauses from measures affecting other sectors, including health and education. In that document, the Government recognised the importance of existing measures to mitigate the impacts of industrial action in health, education and fire and rescue services. For example, some healthcare sector trade unions already provide ‘life and limb’ cover during strikes, and the Secretary of State has legal powers to give directions to fire and rescue authorities, which could be used in the event of industrial action.”
Paragraph 5 says:
“It is not clear what consideration has been given to these existing measures in the current Bill. We advise that more detail may be needed to articulate a legitimate aim for imposing Minimum Service Levels (MSLs) on each sector impacted by the Bill.”
I now turn to paragraph 11, to which I referred at Second Reading:
“Finally, we are concerned that an employee would lose automatic unfair dismissal protection not only if they fail to comply with a work notice, but also if their trade union has failed to take reasonable steps to ensure compliance: an employee will not know before participating in a strike whether that is the case or not.”
I could go on. For those reasons and many more, I urge noble Lords, if not now then when these amendments come back, to give their full support.
Lord Collins of Highbury (Lab)
My Lords, I also welcome the contribution from the noble Baroness, Lady Noakes. We have worked together, and one of the things I have always been impressed with, particularly on the Finance Committee we served on jointly, is her insistence on decisions being clearly evidence based. That is what this series of amendments is seeking, because at the moment the only evidence we have is an impact assessment that was judged to be red-rated by the Regulatory Policy Committee—not fit for purpose. It was published after the MPs in the other place had scrutinised and passed the Bill, so they did not even have an opportunity to see the red-rated impact assessment.
The noble Baroness has raised the important point that industrial action affects the economy and all kinds of things, not just people travelling to work. It has a cost, and it has a cost for a purpose. When I studied industrial relations, many economists tried to make me better understand that strikes brought two sides together because they had costs imposed on them. The problem we face now is that some of the costs, particularly in the rail industry, are hidden. A rail employer does not suffer any cost from industrial action because the Government indemnify it for those costs, so there is no imperative on the employer to reach a settlement. I suspect that is why the public realise who is to blame for the length of these disputes. The public are not as easily fooled as the Government think they are.
Importantly, the impact assessment on the transport strikes Bill said it would have a
“negative impact on industrial relations, which could have detrimental impacts for all parties”
and increase the frequency of disputes, meaning that
“an increased number of strikes could ultimately result in more adverse impacts in the long term”,
particularly on users of the service. Many noble Lords will have seen NHS Providers make the very same point in its briefings to this Committee, saying that it will directly impact good industrial relations and the ability to resolve any disagreements and disputes.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
I thank the noble Lord, Lord Collins, for his helpful advice. I will be sure to pass it on to the Prime Minister.
Lord Callanan (Con)
He was slightly less successful than the current one.
Each amendment in this group seeks to add additional evidence-gathering or reporting requirements or scrutiny to the regulation-making powers in the Schedule to the Bill. Before addressing them, perhaps the Committee will permit me a moment to reply to the rather general points made by the right reverend Prelate the Bishop of Manchester. I am afraid that I fundamentally disagree with him. Recent strike action has demonstrated the disproportionate impacts strikes can have on the public, presumably including his parishioners. They have been unable to access work and healthcare or attend education classes and are worrying whether an ambulance will be there when they need it. Businesses are also crucially affected by industrial action; 23% of them could not operate fully due to industrial action in the UK in December and 2.4 million strike days were lost between June and December. I am sorry that the right reverend Prelate does not believe his parishioners need protecting from these actions, but this Government certainly do.
The Lord Bishop of Manchester
I have every concern for my parishioners and the members of the various parishes, schools and chaplaincies—everyone in my diocese, whether they are Anglican or otherwise. However, I do not believe that this legislation is taking us in the right direction or that passing it will create better ambulance, train or hospital services for the people in my diocese. We may disagree, but I assure the Minister that I speak on behalf of everyone in my diocese.
Lord Callanan (Con)
They will also get to vote in democratic elections and make their feelings clear. By the very nature of the legislation, if a strike is taking place with no minimum services, given that this Bill imposes minimum services, his parishioners will get a better level of service once it goes through. However, we should have debated these points at Second Reading. I am sorry that the right reverend Prelate could not be present then.
Amendment 15, tabled by the noble Lord, Lord Allan, seeks to require the Secretary of State to lay a Statement before each House outlining how the regulations that set minimum service levels and specify the relevant services are both necessary and proportionate. As my noble friend Lady Noakes, who has had to go to the Financial Services and Markets Bill in Grand Committee, pointed out, this amendment adds unnecessary duplication. Sufficient checks and balances before the regulations can be made are already built into the legislation. This includes the need to carry out consultations and the requirement that regulations must be approved by both Houses before they can be made.
Key stakeholders, including employers, employees, members of the public—perhaps even churches—trade unions and their members are all encouraged to participate in the consultations and have their say in the setting of these minimum service levels before they come into effect. Parliament, including Select Committees, as they already have done, will have an opportunity to contribute to the consultation. Following the consultation, the Government will consider all representations and publish a response setting out the factors taken into account in determining the minimum service level to be specified in those regulations.
Subsequent regulations on MSL will be accompanied by an Explanatory Memorandum which will outline the legal effect of the regulations, to address the complaints of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Cashman, and its rationale and why they are necessary. Impact assessments will also be published alongside the regulations, which will then be subject to the affirmative procedure. We think this approach is appropriate; it is a common way for secondary legislation to be made.
Amendment 36, tabled by the noble Lord, Lord Collins of Highbury, and the noble Baroness, Lady O’Grady, also requires the relevant Commons Select Committee to publish a report on how the Act will impact that sector before regulations are made. This will delay the implementation of minimum service levels—I suspect that is its intent—and extend the disproportionate impact that strikes can have on the public.
Amendment 36A, in the name of the noble Lord, Lord Hendy, would require the Government to lay draft regulations before each House of Parliament at least 28 days before the regulations are intended to be made, with an Explanatory Memorandum setting out factors taken into account in determining the MSL. These additional steps are, in our view, unnecessary and duplicative for the reasons that I have set out. The Government resist Amendments 16, 17, 20, 36 and 36A.
Amendments 38 and 39, in the names of the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, would place limitations on the consultation provision, which the Government again resist. In the Government’s view, Amendment 39, as drafted, would not have the effect that noble Lords perhaps intended. In reality, it would require consultations to be published within a six-week window after the Act is passed, meaning that, by their very nature, future consultations after this period would then not be possible. Amendment 38 would prevent consultations taking place at all after the Bill has achieved Royal Assent. Both amendments would remove the ability to specify minimum service levels on an ongoing basis and, in our view, unduly limit our ability to respond appropriately as circumstances change—again, I suspect that this is the purpose of those who tabled the amendments. Key stakeholders are all encouraged to participate in the consultations to help shape the way MSLs operate. As I have made clear in previous responses, the Government have already published consultations on implementing minimum service levels in ambulance, fire and rescue, and rail services.
Amendment 40, in the name of the noble Lord, Lord Fox, would require the Secretary of State to lay a copy of a report in both Houses of Parliament, no later than six months after the Act is passed, setting out the findings of a review into the impact of the Act in regard to six key sectors. The noble Lord will be unsurprised to hear that I resist this amendment on the grounds that all the potential impacts of minimum service levels, including those on staffing, etc cetera, and the other factors the noble Lord mentions, will be considered as part of the process of making detailed regulations for those specified services. As I have set out on numerous occasions, these regulations will be accompanied by detailed impact assessments. We have also committed to conducting the usual review of the full impact of the Act within five years of the first secondary legislation coming into force. We believe that is a much more appropriate timescale to review the impacts.
I apologise to the Committee if I have spoken at length but there were a lot of amendments in this group. I hope I have been able to provide at least some reassurance on the consultation processes that we intend to undergo prior to making regulations, as is required by the Bill.
I was going to say that I hope noble Lords will feel able not to press their amendments, but I see that some noble Lords are seeking to intervene.
Baroness Chakrabarti (Lab)
I want to ask a question of the Minister, just to be clear in my own mind. The trade unions say that the Government do not need these powers to enforce minimum service level agreements because they are reasonable and negotiate voluntarily and will continue to do so—they say it is not necessary to legislate. The Government disagree with that and legislate. Then, when some of us say that there needs to be a transparent process and proper consultation because this is such grave legislation for trade union rights, the Minister responds by saying, “No, no—we do it anyway, so we don’t need to put that on the face of the Bill”. Is there not a contradiction at the heart of this argument? The Government will legislate only one way: for powers for the Secretary of State but never for scrutiny of the Secretary of State. How is that consistent with what the Government say to unions, who are saying do not legislate for this because reasonable agreements will be negotiated in any event?
Lord Callanan (Con)
On a number of occasions, including the first day of Committee, I have made it clear that if voluntary arrangements are in place, which there are in some services, that is our preferred approach. However, it is the case in certain ambulance services that those voluntary arrangements were not agreed until literally the night before the strike action was due to take place, and indeed some trade unions then changed their minds about voluntary arrangements. We therefore think it is appropriate to have the back-up power. If they can be agreed, that is our preferred approach. The approach outlined by the noble Baroness is the normal process of consultation. If Parliament chooses to give the Government these powers—we will see the outcome of the debates in both Houses—then we will consider whether it is appropriate to make these regulations or not, given the circumstances in each case. Those regulations will then be further approved by Parliament.
Lord Fox (LD)
I have two points. In answering the noble Baroness, Lady Chakrabarti, the Minister used the ambulance service as an example of the Government having to use the power. I understood that it was the employer that used the power, and in the case of ambulance workers the Government are not the employer. Can the Minister perhaps square that language?
In a rather less difficult answer, in dismissing one of the amendments tabled by the noble Lord, Lord Collins, the Minister said that the process of publishing information at parliamentary level would take too much time. It is on the record that a recent former Transport Secretary of State said that the Bill will not solve the current problems. What is the Government’s time target for this, given we know that the Minister thinks one of the amendments would take too much time? What is sufficient time? When do the Government expect the Bill to be in place, all other things being equal, and what is the hurry?
Lord Callanan (Con)
On the noble Lord’s first question, as he well knows, it is the Government’s job—or duty, if we get the legislation through—to make the regulations, and then it will be at the discretion of employers whether they use the powers that are given to issue work notices. We have debated this many times.
With regard to the timetable, these things are beyond my authority level. It depends how quickly the Bill goes through Parliament, how many amendments there are, how long ping-pong takes, and the scheduling of the legislation by the usual channels. I hope we will get the legislation through as quickly as possible. Of course, I hope that we never need to use it, as I have said before, but we think it is appropriate that the power should be there as a backstop.
Lord Hendy (Lab)
My Lords, I am sorry to trouble the noble Lord a moment further, but could I invite him to express a view on the report of the Delegated Powers Committee? It points out that there is no detail in the Bill and criticises it for that. Does the noble Lord accept that criticism?
Lord Callanan (Con)
We will be responding in due course to the report from the Delegated Powers Committee. I entirely accept that this is a wide secondary-legislation-making power for the Government, but we think that it is appropriate in these circumstances.
With that, I urge noble Lords not to press their amendments.
Lord Allan of Hallam (LD)
My Lords, I am sorry the Minister did not feel comfortable accepting the amendments in this group, but I think it has been a helpful debate.
The noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Collins, both talked about the potential for inserting friction into industrial relations. These Benches very much agree that that may be the effect of these regulations, so we think it is right to insert a certain level of friction into the legislative process to try to head off what may be a very poor outcome.
The noble Baroness, Lady Noakes, who I understand is now in Grand Committee, talked about the measures as being “not draconian”, which is an interesting framing. However, the fact is that they impact on people’s fundamental rights. Whether it impacts one person, a thousand people or a hundred thousand people, the general principle is that one should be much more careful with any legislation that affects fundamental rights. My amendment was trying to make sure that we had a framework which reflected that.
There is an old maxim that if you only have a hammer, everything looks like a nail. In this Bill, the Government are granting themselves the power to create a hammer which will be offered to employers, but employers may prefer to meet their staff with other tools, such as cash or commitments to a negotiated settlement. In this debate, concerns have come out once more about what happens when the only tool you offer employers is the hammer and the potential knock-on effects of that.
It is right that we are testing whether the Government really will use those powers only in extremis, because “can’t” is often used when “won’t” is closer to the truth, until “won’t” becomes “will” and “can’t” is miraculously turned into “can”—as we have just seen with the recent move to settle the health disputes. That is another example of the Government saying that something is impossible—like minimum service levels are impossible—and then it becomes possible. I hope the Government will strengthen the Bill before Report to make sure that “can’t” really means “can’t” when it comes to negotiated minimum service levels. With that hope, and not yet entirely jaded by experience, I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
I am unable to call Amendment 17, as it is an amendment to Amendment 16.
Strikes (Minimum Service Levels) Bill
Thursday 23rd March 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 97-II Second marshalled list for Committee - (21 Mar 2023)
Lord Hendy
“(5) Regulations may not prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action; or create an offence.”Member’s explanatory statement
This amendment is intended to ensure that the regulations do not breach Article 11 of the European Convention on Human Rights by permitting the penalisation of individuals for exercising their right to strike.
Lord Hendy (Lab)
My Lords, I shall speak to three of the amendments in this group; they bring into discussion matters of international legal obligation. Amendment 18A deals with protection against the excessive use of the regulations.
I ought to begin by reiterating something the noble Lord, Lord Allan, mentioned earlier, which is that we are dealing here with fundamental human rights. The right to strike is a fundamental human right. It has been held to be a right protected by Article 11 of the European convention in a series of cases, beginning with Unison v the United Kingdom. It is protected not only by Article 11 but by many other international treaties ratified by the UK. In fact, it is protected in many national constitutions; more than 80 protect the right to strike. Of course, it is not unlimited and there are always restrictions in one way or another, but its fundamental nature is that it is a human right.
So too is the right to bargain collectively, which was held by the European Court of Human Rights to be an essential element of Article 11 in the case Demir and Baykara v Turkey. The significance of that is that the right to strike is fundamental to the right to bargain collectively—in other words, to the protection of workers’ living standards. As was said 70 or so years ago, collective bargaining without the right to strike is effectively collective begging.
The right to strike has been lawful in the UK since at least the Trade Disputes Act 1906. There is no further justification, after the many Acts restricting that right since 1980, for yet further restrictions or limitations on the capacity of workers to defend their living standards. In particular, the European Court of Human Rights guarantees through Article 11 that strikers shall not be penalised for taking part in a strike. There are many cases to that effect, notably Danilenkov v Russia and Ognevenko V Russia.
The purpose of my Amendment 18A, given the breadth of the power to make regulations in this Bill, is to clarify that the Government will not use that power to impose an obligation not to exercise the right to strike or to penalise strikers specifically by creating a criminal offence. If that is what the Government intend or merely contemplate, the noble Lord will no doubt say so. If that is not what the Government intend, then Amendment 18A will cause no inconvenience.
Baroness Chakrabarti (Lab)
My Lords, it is a pleasure to follow my noble friend Lord Hendy and to see the noble Lord, Lord Soames, in his place, because this group is about international law and a settlement that his grandfather had a great role in promoting, not just in this country or Europe but in the post-war world.
My noble friend Lord Hendy’s suite of amendments begins with his attempt to ensure that regulations would comply with the European Convention on Human Rights. I hope that the Minister will have no problem at all with that, because, in relation to this Bill—not some others in the current programme—the Government’s position is that the European convention is to be complied with. My noble friend’s Amendment 18A gets a little more specific in ensuring that Article 11 is complied with and people are not penalised for their trade union participation. It would give a more specific effect to what is clearly the Minister’s intention by giving a Section 19(1)(a) statement of compatibility under the Human Rights Act. I am grateful for that.
The Government’s current position and approach to international law is complex, if I can put it like that. Sometimes we are told that Bills definitely comply with this or that requirement of international law and sometimes we are told that the Government do not care about the ECHR and might even leave it if the Strasbourg court does not like us, and so on. In relation to this Bill, everything I have heard so far here, at Second Reading and in Committee, suggests that the Government want to comply not just with the European convention via our Human Rights Act but with international law more generally. I welcome that. However, the statement in the Bill, as required by Section 19 of the Human Rights Act, deals only with the European convention and, as we have heard from my noble friend—who is an expert; perhaps the leading expert there has ever been in labour law in this country—there are other equally important international agreements and conventions, not least the ILO, which is particularly important in this area of employees’ rights and trade union rights. If, as I suspect, the Minister is going to say that of course the Government want to comply with those conventions, he will have no problem at all with putting that commitment in the Bill.
Why should he agree to do this? Because it will mean that, assuming that this legislation passes, future Minister who have not actually taken the advice that he has, or made the promises he has made and the commitment in the Bill, will be bound, when they make regulations—which are easy to make by ministerial fiat—to the commitment that he has made in relation to human rights. It is also important to put these commitments in the Bill because it will make our courts the ultimate referees of whether future Ministers, when exercising these broad regulatory powers, are actually complying or not.
Lord Woodley (Lab)
My Lords, I support this group of amendments. I first apologise for my non-attendance at Second Reading, having had a hospital appointment that I could not get out of, following my serious illness last year. Had I been there, I would have said that the Bill is vindictive, unnecessary and undemocratic, as well as unworkable and unsafe, and likely to be unlawful As it stands, it represents a grave threat to trade unionists, trade unions and trade unionism, and the fundamental right to collective action, as my noble friend Lord Hendy said.
Undermining the right to strike in the way the Bill does, and giving employers the power to compel striking workers to cross their own picket lines, would poison industrial relations across vast sectors of the economy. As my noble friends Lord Collins and Lord Cashman said earlier, the point was made by the Government’s own impact assessment on the Bill’s predecessor, the aborted transport strikes Bill, which admitted that industrial action short of strike, such as overtime bans and work to rule, would rapidly increase as a result. I am sure that none of us would want to see that happen.
My noble friends Lord Hendy and Lady Chakrabarti have made the main arguments for these amendments, but I would like to say a few words about the importance of keeping to our international obligations and our international standing. This is especially true as we were founding members of the International Labour Organization, a cornerstone of building a better world for working people. Many countries still look to the UK as an exemplar in human rights. It is also important that, in the light of Brexit, we are not seen to be on a race to the bottom, undermining workers’ rights in other countries, particularly as we have relationships and supply chains across Europe and beyond.
The Minister is well aware that, as part of the trade and co-operation agreement with the EU, we made commitments to maintaining our current standards of workers’ rights—the non-regression clause mentioned earlier—and commitments to fundamental rights at work that are grounded in the ILO core conventions, including ILO Convention No. 87, the Convention on the Freedom of Association and Protection of the Right to Organise, which the Bill clearly violates.
The report from the Joint Committee on Human Rights also cast numerous doubts over the Bill’s compliance with Article 11 of the European Convention on Human Rights, including the difficulty for trade unions to foresee its consequences, its insufficient protection against arbitrary interference with Article 11 rights, and the Government’s failure to provide evidence establishing a “pressing social need” for most of these changes.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, I will speak to Amendment 32B in my name and that of my noble friend Lord Collins, and to support my noble friend Lord Hendy’s amendments too. Amendment 32B is all about ensuring that regulations made as a result of the Bill’s provisions do not conflict with protections in the EU-UK Trade and Cooperation Agreement. There is a real concern about this; we have already heard several times that the impact assessment received a red rating from the RPC. Looking at that impact assessment, there is a question about whether the Bill would have an impact on trade and investment, and the answer given by the Government is no. That concerns many of us, as we know that the EU-UK TCA is our most important trade agreement with our closest trading partner.
I declare my interests in that, when the TCA was being negotiated, I was the general secretary of the TUC and a member of the steering committee of the European TUC. We had some very simple priorities on jobs, protecting workers’ rights and protecting the Good Friday agreement, so we were very keen to secure what we called a level-playing-field clause in that trading agreement to ensure that workers’ rights, conditions and jobs could not be undercut. That was really important to us; we worked really hard on it in the four years it took to secure the agreement. I met Monsieur Barnier a number of times, as well as David Frost—now the noble Lord, Lord Frost—and parliamentarians from the EU and the UK. Together, we campaigned for that clause to prevent unfair competition on the back of lowering labour standards. That was not an academic concern; there were real concerns that, in some quarters, the Brexit dividend was discussed as being one that would involve worsening workers’ rights, especially in respect of the working time directive, which put safe limits on working hours, paid holidays, rest breaks and equal treatment for agency and temporary workers.
At that time, we were also very conscious that several members of the Cabinet were co-authors of that now-infamous pamphlet Britannia Unchained, which specifically described opportunities to worsen workers’ rights. That level-playing-field clause is vital: it provides for non-regression and for no weakening of what are described by the ILO as “fundamental rights at work”, including
“health and safety standards … fair working conditions … information and consultation rights”
and protections for the “restructuring of undertakings”. If the UK breaks that commitment, it would have an impact on trade and investment.
The EU can impose temporary remedies, including trade sanctions. Of course—I hope the Minister is aware—the ETUC, of which the TUC remains a member, can raise a complaint directly with the European Commission. That is why the recent European Commission report saying that it was monitoring very closely developments in respect of fundamental workers’ rights, including the right to withdraw labour, should be taken so seriously. It is not covered in the impact assessment, as I have said, but I think that the Minister at one point said—correct me if I am wrong—that he would consider looking at whether that impact assessment needed to be revised. If he is willing to consider that, this is a key area that is vital for trade, investment and jobs, and it would be worth looking at it again. I very much hope that he will consider this amendment in that light.
Lord Fox (LD)
My Lords, I fully expect the Minister to stand up and tell us that none of these amendments, which have been put so well by noble Lords, is necessary. I expect him to say that there is no possibility of the Bill, once it becomes an Act, breaking or impairing our relationship with the international organisations that noble Lords have mentioned. I wonder how he will be able to say that, given the nature of the Bill.
We come back to its skeletal nature and the answer which nobody seems to know to the question “What is a minimum service level?” Until we know, we do not know whether the Bill breaks any agreements that we have with organisations in this country or around the world. I refer your Lordships to our previous debate in Committee, in which we discussed correspondence with the noble Lord, Lord Sharpe, in which he represented the issues around the fire and rescue services. I remind noble Lords that, after I prompted him on why the consultation had raised the issue of the Grenfell Tower fire and the Manchester Arena bombing, the Minister—the noble Lord, Lord Callanan—said that one thing the consultation sought to probe was that the minimum service level would include the ability to cope with issues on that scale. He did not disagree with me when I came back and said that that implied that 100% of the fire and rescue services in an area would need to have been named in the work order under a minimum service level. In effect, that would ban striking.
In the event of such a minimum service level, that calls into question our relationships with the ILO, the EU under the TCA and others, because it is a de facto ban on striking. It may or may not upset those relationships, but I want the Minister to be able to say what minimum service level is being modelled when he tells us that we do not need to worry.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, I sometimes wonder when I listen to the noble Lord, Lord Fox, whether I need to bother replying to these debates, because he has written my speeches before I get up. For the benefit of the House, I will go through this anyway.
Amendments 18A, 18B, 32B and 36C all relate to the UK’s international obligations. Before I deal with the amendments in detail, it is worth reiterating, as I have previously and as we debated last time round with the noble Baroness, Lady Chakrabarti, that the Government firmly believe that the Bill is compatible with our convention rights and complies with all international conventions that the UK is signed up to. I signed a statement to that effect.
Amendment 18A in the name of the noble Lord, Lord Hendy, looks to ensure that the Bill does not prevent people from taking strike action and cannot be used to create an offence. I oppose this amendment because its effect would be to prevent any minimum service levels from being implemented at all. He will understand my reservations, given how the Bill is drafted in respect of the operation of work notices and where an employee would lose their automatic protection from unfair dismissal for industrial action if they participated in a strike while being named on a work notice. To be clear, our Bill does not prohibit strikes or other industrial action, but it does enable employers to continue to deliver a minimum service level to their users and stakeholders during and notwithstanding that action.
The Bill is about balancing the ability to strike with the rights and freedoms of others. Preventing minimum service levels being implemented does not strike a balance; it would merely maintain the current disproportionate impacts that strikes can have on the public—although I expect that that is a cause of legitimate disagreement between us.
Amendment 18B would ensure that the regulations did not compromise our obligations under the trade and co-operation agreement. However, given the reiteration I made earlier, we believe that this amendment is duplicative and unnecessary. The Government remain committed to our international obligation and respect the process of the respective governing bodies in providing any rulings that are required concerning compliance. I recognise that the noble Lord, Lord Hendy, has a desire for relevant international conventions and treaties, and their associated governing bodies, to have a greater role in respect to minimum service levels in Great Britain. But my argument here is that incorporating decisions by supervisory committees into domestic primary legislation, as this amendment seeks to do, goes way too far.
Amendment 32B, tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, seeks similarly to prevent minimum service regulations being made where they could be said to be within scope of the trade and co-operation agreement and other international obligations. As I stated at the outset, the Government firmly believe that we are entitled to bring forward this legislation—many other European countries already have similar legislation—which I remain satisfied is compatible with all the international conventions the UK is signed up to. The noble Baroness will, of course, be aware that there are existing mechanisms for monitoring adherence to the trade and co-operation agreement—if indeed there are concerns from EU member states or the European Commission, although I do not believe there will be.
In any case, I am surprised if anybody thinks that ensuring that the public are able to access some level of service in key sectors, including emergency services, during strike action goes to the heart of the TCA, not least because many EU member states already have minimum service level arrangements in place. Indeed, in some of the services we have mentioned, some member states ban strike action completely in those areas. As drafted—and perhaps not intentionally—this amendment would prevent minimum service levels regulations being made at all, which, given that is the purpose of the Bill, we clearly cannot accept.
Finally, on Amendment 36C from the noble Lord, Lord Hendy, and to respond to the points the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Woodley, made, as I have stated previously, the Government firmly believe that the Bill is compliant with convention rights and international conventions. The Bill also enables regulations to be made in a way that is compliant with the convention rights, and on making those regulations, Secretaries of State will need to carefully consider the relevant articles of the ECHR, alongside international conventions, if they choose to suggest minimum service regulations to Parliament. So they will also have to make similar statements.
I highlight that this amendment seeks to restrict minimum service levels so that they can be made only where they are necessary to provide protection for the life, personal safety or health of the whole or part of the population. While the protection of life and health are indeed important aims of minimum service levels in areas such as healthcare—
Baroness O’Grady of Upper Holloway (Lab)
I apologise to the Minister—it took me a while to find this on my system. He referred to minimum service levels being common in other European countries. I submitted a Written Question on this, to which the noble Lord, Lord Johnson, replied:
“The Government does not believe that direct comparisons with other European countries are particularly helpful because of the different administrative and legal frameworks governing industrial action.”
The Minister will also be aware that the overwhelming majority of the other countries in Europe that are cited provide for negotiated minimum service levels, not state diktat.
Lord Callanan (Con)
I did not say that they were particularly common, just that they exist in some European member states. Of course, provisions, agreements, labour relations, laws, relations with trade unions, et cetera, are different in other member states. The example I cited last time was border service provisions; many member states prohibit, in effect, strikes by border service personnel because those services are delivered by police, army or military services. The arrangements are different in other member states, but that goes to my point that we are entitled to do what we believe appropriate for the United Kingdom. However, similar provisions—albeit in different circumstances—exist in other member states of the European Union and other democracies worldwide. Noble Lords will remember from the previous Committee day the reasons we have given for believing that the six sectors in the Bill are correct.
The amendment would incorporate into domestic law decisions of supervisory committees of the ILO. These committees’ conclusions and recommendations are non-binding; they are intended only to guide the actions of national authorities. The only body with explicit competence to interpret ILO conventions is the International Court of Justice. I highlight to the noble Lord, Lord Hendy, that the ILO supervisory committee has stated that minimum service levels can be made in services
“which are not essential … but 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.”
We do not believe that we are in contravention of our ILO duties. The amendment does not provide for minimum service levels in those circumstances, and I am therefore puzzled as to why the noble Lord did not include them in it, given that they were referenced previously in Committee and today.
I hope that, with these reassurances, I have been able to persuade noble Lords to withdraw and not move their amendments in this group.
Baroness Chakrabarti (Lab)
My Lords, I have two quick questions about the Minister’s answer to my noble friend Lord Hendy. First, I think I understood from his answer that he thinks that Amendment 18A would drive a coach and horses through minimum service level agreements. This may be an argument about “prohibit” or “prohibition”, because my understanding of the Bill as drafted is that, where a minimum service level agreement is imposed by regulations, that will remove some of the existing protections in trade union law. The Minister clearly wants that to be the case, but surely he is not suggesting that, for example, regulations should be able to impose criminal or civil penalties on workers. If that is not his intention, could something like Amendment 18A not be welcomed to make sure that regulations could not create that level of penalisation in the Bill? If regulations cannot criminalise workers, it is important that that is on the face of the regulation-making power.
Secondly, on the ILO as opposed to the ECHR, I think I heard the Minister say that the only body competent to determine compliance with the ILO is the International Court of Justice. That is hardly taking back control, and it is completely inconsistent with this Government’s permanent position on the Strasbourg court and the ECHR. What would be wrong with a domestic court having the ability to scrutinise whether or not regulations made by a future Secretary of State comply with the ILO conventions?
Lord Callanan (Con)
I will deal with the noble Baroness’s two questions. First, the reason I opposed Amendment 18A from the noble Lord, Lord Hendy, is that we believe it would effectively kill the Bill—indeed, this may be the noble Lord’s intention. This is because where a person is named on a work notice, they are effectively prohibited from striking for the day that they are identified to work; they would lose their automatic protection from unfair dismissal for industrial action if they did participate in the strike. This means that regulations for minimum service levels could not be made within the current drafting of the Bill. They would enable the prohibition of participation in a strike, and therefore the minimum service level could not be implemented—thus killing the Bill. I am sure the noble Lord, Lord Hendy, would be very happy if that were the case, but noble Lords will also understand that that is why the Government oppose the amendment.
Supervisory committees of the ILO are not entitled to interfere in UK law. There are conventions that we are signed up to, but the only way to interpret the decisions of the ILO is through the provisions of the ICJ. I am not a legal expert, but I can get legal clarification that it is possible for the ECHR to take into account the rulings of the ILO when adjudicating the relevant provisions in the ECHR.
Baroness Chakrabarti (Lab)
Please forgive me; I do not mean to be difficult, but these are very important points and I do not think I made myself clear in the way I put the questions to the Minister. I will try just one more time.
I do understand that the Minister intends that once minimum service level agreements have been imposed by regulation, employees who breach work notices will lose their protection from dismissal. I understand that as the ultimate sanction against them in the Bill. But my understanding of Amendment 18A is that it is also trying to deal with things such as regulations being used to create new criminal offences or new civil penalties—things that are not just removing protection from dismissal. Is the Minister prepared to say, in Committee, that this is not the intention behind the regulation-making power? Accordingly, will he consider amendments at a later stage to that effect?
I was not suggesting that it is about the Strasbourg court adjudicating on the ILO. I was suggesting that in our domestic public law, our courts are normally capable of second-guessing the legality of regulations. If that is to be the case, will our courts be able to determine whether regulations comply with the ILO?
Lord Callanan (Con)
I am happy to give the noble Baroness the commitment she seeks. There is no intention to create any criminal offence within this Bill; it does not do that, and it is absolutely not our intention.
On her follow-up question, the provisions in the TCA relevant to minimum service levels include commitment to ILO conventions, non-regression and rebalancing. Enforcement mechanisms vary, depending on the particular provisions. For the non-regression clauses, enforcement mechanisms include consultation and escalation, involving panels of experts and potential rebalancing measures, all of which would take place at an international level and cannot bring any claims in the domestic courts. I hope that gives the noble Baroness the reassurance she is looking for.
Lord Hendy (Lab)
My Lords, I am very grateful to the Minister for the clarity of his answer, and to all noble Baronesses and Lords who participated in the debate. I will not do them the disservice of attempting to summarise their speeches.
Let me deal with two points arising from what the Minister has said. First, he asked whether my intention is to kill the Bill. It would certainly be my desire, but that is not the effect of these amendments, for sure. He says Amendment 18A and the other amendments would prevent minimum service levels being set. That is simply wrong, as a matter of law. There is nothing to prohibit the minimum service levels being set. What the amendments propose is that the minimum service levels be set in such a way that, first, they cannot penalise workers for going on strike—individual workers who are requisitioned to provide service under a work notice should not be penalised, in accordance with the jurisprudence of the European Court of Human Rights—and, secondly, they comply with the standards of the ILO and the European Social Charter.
That brings me to my second point, which is the importance of the ILO. I say this with the greatest respect, but I am not sure the Minister has quite understood the position of the ILO in the hierarchy of international law so far as the United Kingdom is concerned. Before I explain that, I will make one thing clear: the Minister read a passage from one of the supervisory bodies of the ILO—it was in fact the committee of experts—and suggested that I had not quoted it. I read that very passage on to the record earlier this afternoon; I think Homer might have nodded briefly and missed that. The Minister said that the decisions of the ILO are not binding. In one sense, of course, that is true. Britain was the first country in the world to ratify Convention 87, which is the most ratified of all the conventions of the ILO. It is an international treaty and we are bound by it, but I agree that it is not binding in domestic law.
Secondly, ILO conventions and their jurisprudence are taken into account by the European Court of Human Rights in interpreting the various articles of the European convention, particularly Article 11. If you want to know what Article 11 has to say about the right to strike, it is no good looking at the text of that article. What you have to look at are the decisions of the European court. Every one of them refers to the jurisprudence of the ILO and the European Social Charter in defining what permissible restrictions there may be on the right to strike.
The third reason the ILO is so crucial is because of the trade and co-operation agreement. This is the point I was endeavouring to communicate to the Minister, but I think I failed to do so. I read a few words from Article 399 of the trade and co-operation agreement, but let me read a sentence. Article 399(2) says that
“each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions”.
So we are bound by the fundamental ILO conventions. Article 399(5) makes specific reference to implementing the provisions of the ILO conventions ratified by the UK and the provisions of the European Social Charter ratified by the UK.
It is not a question of the ILO interfering in the domestic jurisdiction of British courts or the British Parliament. We have chosen to be bound by the provisions of the ILO—a choice that we repeated in 2021 when we ratified the TCA. The fact of the matter is that we do not comply with the requirements of the ILO in relation to minimum service levels, particularly—I mentioned this earlier, but the Minister did not deal with it—because the ILO requires that minimum service levels are set with the intervention or input of the social parties, particularly the trade unions, and that there should be a specified mechanism for resolving any disagreements. That is not what the Bill provides, so we may well be in breach. Having said all that, I beg leave to withdraw my amendment.
Lord Fox
Member’s explanatory statement
This amendment seeks to ensure that work notices are only issued where all options to avert a strike are exhausted.
Lord Fox (LD)
My Lords, this is a slight change of gear from where we just were. This is a probing amendment, and it uses the idea that work notices can be used only after all other avenues have been exhausted. It returns a little to the thought experiment I was trying to have, which is the applying of the Bill, or the Bill if enacted, to what we have witnessed in the Government’s management or mismanagement of the public sector strikes that we have just been going through.
No matter what the strike and no matter which the sector, disputes are settled only when there is negotiation. The Government seem to have taken a long time to understand this with the disputes that we have just come through. The rail strike has been going on since June, and the nurses’ strike started in the autumn, but only in the last few weeks have these strikes begun to end, thanks to negotiation. Why did it take so long? Why were so many operations delayed? Why were so many people’s lives, as the noble Baroness, Lady Noakes, pointed out, disrupted by service delays in, for example, the train services?
Strikes are an extreme action for all workforces—workforces do not willingly go in for them—and that is certainly true in the health service. We have to remember that in the 106-year history of the Royal College of Nursing, this is, as far as I know, the first time that nurses have balloted and decided to strike. This is in a sense a very hard decision for those employees. I wish to probe the Minister in that context. Had these measures been available—had a minimum service level for the health service or the train services been in place—when and how would they have been deployed? Indeed, would they have been used differently in the two different services, one being essentially an emergency service and the other a transport service?
There has been no clarity on how these minimum service levels could and will be used. The noble Baroness, Lady Bloomfield, and I think the Minister, the noble Lord, Lord Callanan, himself, have said that they would be a matter of last resort. However, negotiating is in fact the last resort that brings people to the table and ends strikes. Where does the minimum service level fit in the pantheon of industrial relations here? That is what this amendment seeks to probe.
What we saw with the strikes that have been going on is that the decision to negotiate can only have been a political decision. The launch of the Bill was associated with that political decision and designed to shift the blame or the balance of blame to other sources. The only reason we saw movement is because in the end the Government decided that they had to negotiate with the health unions and started to gradually lift the blockers that they had been using on the train employers in order to move things forward. This is the evidence of how we see the Government operate. They are the ones who brought forward this measure, so how does this measure fit into that sort of behaviour? I beg to move.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, it is worth reminding ourselves why it is necessary to scrutinise this Bill in such detail. The RPC’s latest Independent Verification Body Report confirms that, since 2021, there has been an alarming increase in the number of impact assessments that have been red rated—not fit for purpose—and, of course, this Bill is one of them. There were no red ratings between 2016 and 2021; since 2021, there have been eight.
Turning to the amendments, which I am very pleased to support, one of the other fundamental flaws of the Bill is that it takes a provocative, one-sided position on industrial relations. Its partisan approach fundamentally offends people’s sense of fair play. The public are all too aware how real-terms cuts in pay and underfunding of public services have led to a crisis in staffing levels and service backlogs. Strikes are merely a symptom of worker discontent and, as all the polls show, that discontent is often supported and shared by service users.
As many noble Lords have observed, workers never take the decision to vote for strike action lightly and unions always want a negotiated settlement, but sometimes it seems that the only way some employers understand the true value of labour is when that labour is withdrawn. The task of government should be to help prevent disputes, or at least to help resolve them when they happen, not to throw fuel on the fire, but this Bill is based on the premise that strikes are the fault of workers and unions, as if they were never caused by the failure of employers to listen, compromise or negotiate, by years of government underfunding and cuts, or by the frustration that arises when the Government take so long to put more money on the table when, had they acted earlier, the dispute could have been settled months before without any need for a strike.
The Bill imposes yet more draconian requirements on unions, but no commensurate obligations on employers or government. Ultimately, it gives the Secretary of State the whip hand to weaken workers’ bargaining power and attempt to render a strike meaningless.
The partisan stance of the Bill is a fundamental flaw, but the naming of individual workers in work notices is the provision that many find most shocking. Why is it necessary for the Secretary of State to require that work notices list the names of individual workers who will be required to work, rather than just numbers—as I am aware that a number of employers have suggested? In response to a Written Question I asked, the noble Lord, Lord Johnson, said that the Bill provides:
“enforcement mechanisms to maximise the assurance that Minimum Service Levels (MSLs) will be achieved on strike days”—
in other words, naming of individual workers is necessary in order that they can be threatened with the sack.
How will the Secretary of State ascertain whether that list of individual names has been chosen without bias, discrimination or a vindictive attempt to target trade union activists? What will be the process and additional Civil Service resources needed to do that effectively? I genuinely do not know. Can the Secretary of State add or remove individual names, should a legitimate complaint be made? In the 2019 Queen’s Speech, when minimum service legislation for transport only was first planned, the Government pledged to ensure that
“sanctions are not directed at individual workers.”
What changed?
At Second Reading, the Minister asserted:
“This legislation is not about sacking workers”—[Official Report, 21/2/23; col. 1563.]
but of course it is precisely about sacking workers. The legislation expressly provides for the power that workers—nurses, firefighters or teachers—who disobey a notice to work during a strike for minimum service levels, perhaps unilaterally imposed by an employer and sanctioned by the Secretary of State, can be sacked. Crossing fingers and hoping that it will never happen is no comfort to those workers whose jobs are on the line. Key workers who kept Britain running during the pandemic and who were lauded as heroes now look set to become martyrs. Why is that, when emergency cover, where genuinely needed, is already arranged through mature agreement rather than diktat?
It has been so difficult to secure answers to many of the questions raised in this Committee, but nevertheless I will repeat another one. If a named worker calls in sick on the strike day that they have been notified to work, can they be sacked too—yes or no?
The Lord Bishop of Manchester
Amendment 21 seems to be just common sense. Surely it is appropriate that if a work notice is to be issued, it is issued only when all the options to avert a strike have been exhausted. As we keep hearing today, work notices bring serious consequences with them. As the Bill stands, it could lead to an individual employee losing their job. Beyond that, if trade unions do not take “reasonable steps” to comply with the work notices, they could face significant financial damages and the strike could be classified as illegal. If that happens, all the workers taking part in that strike risk losing their livelihoods.
Therefore, it is not clear what these “reasonable steps” are. The Joint Committee on Human Rights is not clear either, saying that
“the provision requiring trade unions to take ‘reasonable steps’ may fall foul of the requirements of Article 11”.
What assurances can the Minister give us that whole swathes of workers will not lose their livelihoods through this? Work notices should never be used lightly, especially in their current form. Amendment 21 provides some safeguards to ensure that this does not happen.
We can see from recent weeks and months, as other noble Lords have said, that trade unions want dialogue. They want to discuss matters of concern. They want to find mutually agreed solutions, which are the only solutions that actually work in practice. But if the Government adopt a more heavy-handed approach to strike action in those sectors where they have what elsewhere might be called coercive control, or if employees feel pressed to do so under fear of civil action, as we have heard today, this risks further division and delays agreement. If we allow work notices to be issued when other avenues to settle a dispute have not been fully explored, perhaps for political reasons of the day, that will, in my view and in the view of many others, extend and escalate disruption.
In its present form, the Bill will not reduce the short-term destruction caused by strikes; rather, it will lead to longer and more damaging strikes. That is not in what the Minister referred to earlier today as my parishioners’ best interests. It is not in anybody’s best interests.
Baroness Randerson (LD)
My Lords, my noble friend Lord Allan referred earlier, in relation to Amendment 15, to the key issue of human rights. The amendments in this group look at other aspects of this concept. Amendment 23 in my name seeks to examine the practicalities of an employer specifying a minimum service level. Other speakers have referred to the problems associated with this. It is going to be an invidious process. Let us look at how this will work.
The Secretary of State grandly specifies a minimum service level, then washes his or her hands of the practicalities and the personnel implications of it, because employers will have the job of implementing it. The Government will say that it is voluntary, as the Minister said earlier today, but at the same time, she made it clear that employers will be under some level of pressure from the Government to implement minimum service levels. This simple Amendment 23 makes it clear that employers need to specify only the number of employees in each role rather than by name in their work notice.
Lord Callanan (Con)
My Lords, I will now reply to the debate on Amendment 21, tabled by the noble Lord, Lord Fox, and Amendment 23 in the name of the noble Baroness, Lady Randerson, which have been grouped. These seek to limit how and when a work notice can be issued by an employer.
Amendment 21 seeks to place an additional and, in our view, burdensome requirement on employers in relation to issuing a work notice. Amendment 23 seeks to alter, fairly fundamentally, how a work notice operates. Both amendments would create unnecessary uncertainty for employers, unions and workers around their respective obligations for work notices.
Amendment 21 requires the employer to exhaust all options to prevent a strike before they issue a work notice. However, it is my submission that employers are already incentivised to avoid strike action due to the substantial cost and disruption that it causes them. If a trade union has given notice of a strike under Section 234A of the 1992 Act, which must happen before any work notice can be given, it seems reasonable for the employer to assume that the options to avoid a strike have, in fact, already been exhausted for the purposes of producing a work notice.
It is also not clear what the test would be for an employer to show that all the options had been exhausted to prevent a strike, creating significant uncertainty for employers and trade unions. The Bill does not prevent employers and unions continuing to negotiate to reach a settlement on the broader trade dispute and, we would hope, for the strikes to be called off. However, we know that negotiations can be complex and can cause uncertainty, so all parties, especially the public, need the fundamental reassurance that the minimum service will operate on a particular strike day. Therefore, the Government resist this amendment.
Amendment 23 seeks to alter how work notices are to operate by specifying that the work notice must identify only the number of persons required to work during a strike rather than actually naming them. There are a number of problems with this approach. First, trade unions are required under the legislation to take reasonable steps to ensure that members identified in the work notice comply with that notice. For that to be true, the trade union would need to see the work notice and to know which union members have been identified as required to work in order for it to take those reasonable steps to ensure that those members attend work rather than going on strike. Secondly, this amendment could lead to confusion between employers and workers about who exactly is required to work, particularly in instances where a large number of individuals are employed to deliver essentially the same duty—for instance, call handlers. There would no longer be workers
“identified in a work notice”
for the purposes of paragraph 8(3) in Part 2 of the Schedule. Consequently, the provision removing the automatic protection from unfair dismissal would presumably also not apply, and therefore cannot be accepted.
I reassure noble Lords that individuals named on a work notice will be notified of this as regards themselves only. They will not be issued with the work notice itself, and the work notice will not be a public document. Unions will be bound by data protection law in the usual way, and there will be no sanctions or consequences for individuals if the minimum service level is not then achieved.
Identifying individuals to work in advance of the strike day helps to provide clarity for workers, unions and employers about who exactly is required to work and the arrangements for that particular working day, as well as strike. Without this we believe it will cause confusion and would potentially lead to minimum service levels not being achieved, continuing the disproportionate impact strikes can have on the public, as well as potentially costly and unnecessary litigation between unions and employers.
Finally, let me pick up on the questions asked by the noble Baroness, Lady O’Grady.
Lord Monks (Lab)
Would the Minister accept that there is tremendous scope for victimisation in the provision that he is talking about, which this probing amendment is opening out? If the work notice is imposed on union officials—convenors, shop stewards, secretaries or whatever—they are in an extremely vulnerable position. They may have been doing the negotiation. They may have been regarded by the employer as awkward. All of a sudden they are put in the frame to say that you are coming into work, regardless of the role they may have played in the origins of the dispute. Is this not a victimisation permit for employers to use in all kinds of circumstances?
I worked in a place where the senior steward had been sacked and was victimised, and it is quite a common occurrence—other colleagues here will perhaps know more about that than me. It seems that the Government are giving a blank check to employers to take on individuals who are prominent in the union, and putting them in an impossible position of being summoned in by the employer at the same time as they may well have been leading the workers in the particular dispute that is taking place. What would the Minister say about that idea that he is giving a charter for victimisation?
Lord Callanan (Con)
I understand the noble Lord’s concerns but I do not believe he is justified in his worries. The Bill is clear that an employer must not have regard to whether a worker is or is not a member of a union when issuing a work notice. If an employee feels that they have been unfairly targeted then they can raise a grievance with their employer or ultimately take legal action to challenge whether the work notice complied with the law. That would then be a matter for the courts to decide.
Lord Blunkett (Lab)
I have listened with great care to what I think has been an analytical destruction of the very heart of this Bill. If, as the noble Lord has already enunciated, the right to take action for unfair dismissal is automatically removed by this Bill, how on earth can an individual take a grievance?
Lord Callanan (Con)
I do not understand the point the noble Lord is making.
Lord Blunkett (Lab)
I used to teach industrial relations a long time ago—I may be rusty. The purpose of unfair dismissal protection is that the employer cannot arbitrarily take away the right of a person to their employment unless they have good cause. If they have declined, and have taken a grievance following the notice they have been given, and unfair dismissal protection has been withdrawn, how can that grievance procedure be proposed and implemented?
Lord Callanan (Con)
They lose their protection only if they do not comply with a work notice. The whole principle of this—as the noble Lord has studied industrial relations, he will understand—is that, for a strike to be lawful, effectively you are breaking the contract you have with your employer. If the strike is lawfully called, you are entitled for the purpose of industrial action to break that contract. This merely reinstates that contract between you and your employer. If a work notice is issued and you do not comply with it, it would be treated as an unauthorised absence. There is no intention to say that that will result in dismissal. I would have thought that that would be very much a last course. As I said at Second Reading, we do not believe it will result in people being dismissed. We believe people will comply with the regulations and the law, and that the Bill will have the effect that we intended.
Lord Hendy (Lab)
I am sorry but I did not quite understand the Minister. I can see that dismissal for refusing to comply with a work notice might be a matter of last resort for the employer, but we are dealing here with the potential for bad employers to take the opportunity to sack somebody, and they might sack somebody without notice. If they do that, there is no possibility at all of the worker taking up a grievance. I do understand what other legal avenues there might be for such a worker—I can visualise none.
Lord Callanan (Con)
I was responding to the point I was asked about, and I made the point that, under the Bill, it is clear that an employer must not have regard to whether a worker is or is not a member of a union when issuing the work notice. I was outlining procedures that they could then follow if that was the case. Ultimately, they could challenge it in court, and that would be a matter for the courts.
I was going to go back to the point from the noble Baroness, Lady O’Grady, but I see that the noble Baroness, Lady Randerson, wants to intervene.
Baroness Randerson (LD)
In order to reassure me on the issue of names becoming public, the Minister said that names would not be made public and—I assume this is what he meant—would remain private between the employer and the employee. I just want to tease out how this will actually work. Apart from the fact that the person concerned would turn up at work on that day and so it would no longer be private, how would trade unions and other workers be able to challenge any of this legally? How would they challenge the overall balance of the decision-making of the employer and the fairness in the way in which all this has been carried out, particularly if someone were to end up losing their job as a result of the whole process? How would there be any legal assurance about this if the whole thing is cloaked in mystery?
Lord Callanan (Con)
Let me outline the procedure for the benefit of the noble Baroness. The work notice will not be a public document. The Bill makes it clear that current data protection legislation applies, while allowing the employer to provide the work notice to a trade union so that the Bill can be effective. Under the Bill, trade unions are required to take reasonable steps to ensure that their members who are identified in the work notice comply with that work notice. The trade union therefore of course needs to see the work notice and to know which union members may be named, in order to enable it to take those reasonable steps. Unions will otherwise be bound by data protection law in the usual way. Additionally, while those named on a work notice will be notified about that regarding themselves only, they will not be issued the work notice itself. Naming individuals to work in advance of the strike day helps to provide clarity to the workers, to unions and to employers regarding arrangements for that working day as well as the strike.
If the Committee will now permit me to move on and answer the question posed by the noble Baroness, Lady O’Grady, that may provide some clarity on the Government’s thinking in this respect. The first question the noble Baroness asked was whether Secretaries of State have a say in who is identified in a work notice. Fundamentally, the work notice is a matter for the employer, so there is no way that Secretaries of State can influence who is identified on a work notice.
Secondly, the noble Baroness asked whether a worker would be in breach of a work notice if they were sick on the relevant strike day. Workers should of course be supported if they are unwell and cannot work, and it remains the case that if a worker is too unwell to work, they are not obliged to work under a work notice. I hope that provides the clarity the Committee is seeking on this point, and I therefore hope that the noble Lord can withdraw his amendment.
Lord Fox (LD)
My Lords, this debate has revealed—or rather, not revealed—more than I expected. I am grateful to the Minister for imaginatively making things up as he goes along, which is what this seems to be. We have a Bill in which none of the details is included, and we are relying on the Minister to flesh out from the Dispatch Box how the Bill will work. [Interruption.] I am not talking about what the Bill is, but how it will work.
At least two misapprehensions are driving that interpretation of how the Bill will work—not what it says in law, but what it will do. The first is that the nature of the service sectors the Bill has identified is such that they are politicised. The Minister’s description of the interplay between employer and employee is an unrestrained free-market description, but we know—and this is why I was talking in the last group about using the current dispute as a model—that this is not a pure-play employee/employer relationship. There are three parties in this dispute, and the third party is the Government. By experience, behind the scenes and sometimes in front of the scenes, the Government have been part of the process of progression of these disputes, and in the end, they have been the arbiter of whether or not they were settled. So the Minister’s description of the nature of the dispute in which these minimum service levels and work orders would be used is an inaccurate model for us to consider.
The Minister speaks of the unions and the workforce as if they are two separate entities. We have to understand what the Minister thinks a union is. In large part, the union is the workforce, so keeping the work order secret from the workers by giving it to the union is an interesting concept.
The second misapprehension is that the Minister is expecting the union to oversee the work order, which is a list of names. We know from the Bill, because it specifically says so, that the names on that list could and should be either union members or non-union members. How does the union deal with the non-union members? Is it fair for the non-union members to have their names on the union’s list? These are the sort of practical details we do not have to hand because we do not have a description of work orders and minimum service levels. That is the problem the Minister is having to deal with and is working very hard to do so.
I will look very hard at Hansard because I find it very difficult to understand how the Minister sees the unions and the workforce operating independently in a workplace. Leaving that to one side, I beg leave to withdraw Amendment 21.
Member’s explanatory statement
Restricts the giving of work notices to trade unions which are recognised (either by an employer or statutorily).
Baroness O'Grady of Upper Holloway (Lab)
My Lords, in scrutinising this Bill there is always a risk that we miss the wood for the trees. The core concern remains that this Bill allows the Executive to take sweeping powers, avoiding proper parliamentary accountability and scrutiny, and to do so at the cost of fundamental human rights and freedoms.
The trade union movement is by far the biggest democratic membership organisation in this country. Millions of people join unions because the evidence is that membership is the best way to win better pay and conditions. Millions more recognise that by tackling exploitation and discrimination, and by upholding safety standards and providing, for example, second-chance learning opportunities to hundreds of thousands of workers every year, British trade unions perform a great public service.
The Minister often talks about balance, but the balance of power is already rigged in favour of employers and against working people. A key measure of that is that, at best, average wages have stagnated for well over a decade and workers’ share of the total wealth they produce has been shrinking.
Ministers claim that they are acting in the best interests of service users, but the majority of service users do not agree. For example, according to a poll for “Politics Home”, junior doctors are backed by a ratio of nearly 2:1. The bottom line is that service users trust public servants more than they trust Ministers. As IFS director Paul Johnson said in the wake of the Budget:
“You can’t keep cutting the pay of teachers, nurses and civil servants, both in real terms and relative to the private sector, without consequences for recruitment, retention, service delivery, morale and - as we have seen … strikes.”
Strikes are always the last resort. However, as has been vividly illustrated over the last few weeks, it is only because of that right to strike that the Government and employers have come back to the bargaining table and improved pay offers to rail workers, firefighters, health staff and, hopefully soon, teachers and others too.
The amendments in my name and that of my noble friend Lord Collins probe the Government’s appetite for taking sensible steps to prevent work notices being used to stop meaningful strike action, and to avoid victimisation, protect health and safety and protect equality rights. Without a prior requirement for an equality impact assessment, as set out in Amendment 30, there is nothing to help prevent direct or indirect discrimination on the grounds of race, sex and other personal characteristics. This, of course, is not an optional extra. The Government have a duty under the Equality Act and under Article 14 of the European Convention on Human Rights, which prohibits discrimination. We already know that this Bill will have a disproportionate impact on women—for example, nurses and cleaners—and on black and ethnic minority workers, who are significantly overrepresented in health and transport. The TUC and others have argued that by reducing union bargaining power, this Bill will be a huge step backward for tackling racism at work.
On a number of occasions, the Minister has been asked about protection against victimisation for elected workplace union reps, but I do not believe that it has been addressed adequately so far. Amendment 27 provides that opportunity. On all sides of this Committee, many of us are appalled that an employer and, ultimately, the Secretary of State propose to name individuals to work during a strike and to sack them if they refuse to obey. I anticipate that the Minister may suggest—indeed, he has suggested—that workers and reps who are victimised could make a claim to an employment tribunal, but that is cold comfort when your livelihood is stripped away. I remind the House that the NHS is not the only service suffering backlogs: the average waiting time for a first hearing at an employment tribunal is now 335 days for a single claim, or 55 weeks for multiple claims.
On Amendment 22, during day 1 of Committee, I asked the Health Minister, the noble Lord, Lord Markham, whether, in principle, Amazon could be included within the scope of “health services”, alongside other private companies, for the purpose of the Bill. I still have not had time to read the letter of the noble Lord, Lord Markham, with the attention it deserves, but the noble Lord certainly confirmed on the day that, yes, Amazon could be included in principle. I raise that for a couple of reasons. First, Amazon is a powerful multinational corporation that is notorious worldwide for its anti-trade union activities and oppressive treatment of workers. As I mentioned, Amazon warehouse workers in Coventry are now being paid £11 an hour—it is interesting that Amazon has raised this, in the wake of the first strikes that they have ever taken in this country.
Noble Lords will be aware of a GMB investigation using freedom of information requests that shows that one pressure on our ambulance services is the surge in call-outs to Amazon warehouses in the run-up to black Friday, a time of year when Amazon workers are under huge pressure to achieve targets. It is an inhumane pace of work that poses a danger to health and increases the likelihood of accidents—hence the spike in call-outs.
My other reason for raising the Amazon case is that those workers are of course on strike for union recognition, which they do not have yet. They want an agreement to collectively bargain with the employer on vital matters like pay, rest breaks, health and safety, but so far, shamefully, Amazon is refusing to recognise the union. In principle, if Amazon could be included in minimum service levels, as we were told, it could just draw up a work notice to force those workers to break their own strike. It would not even have to go through the pretence of consulting with the union, because it refuses to recognise one. In fact, any bad employer covered by the Bill could see this as an incentive to derecognise unions, and all with the blessing of this Government. What happens if the workers refuse to obey? They face the sack. If the union is deemed not to have taken these undefined “reasonable steps” to force them to work, it would be hit by legal action and all striking workers could be sacked. So Amendment 22 seeks to prevent the Bill becoming a licence for bad employers who refuse to recognise, or who want to break, trade unions.
Finally, regarding Amendments 24 on reasonable steps for employers, and Amendment 31 on assessments of health and safety, and consultation with trained and expert workplace health and safety union reps, the key concern has been the apparent lack of government understanding about the realities of running services in the six sectors and how to do so safely. For example, noble Lords will be aware, which is something of an irony, that the PR around the Bill claims it is about safety, when one of the key issues driving rail disputes has been the axing of safety maintenance jobs and safe staffing levels on platforms. Of course, the risk of dangerous overcrowding on platforms is something that would be made only worse by the Bill.
Lord Woodley (Lab)
My Lords, I support the amendments in this group, but the contribution by my noble friend Lady O’Grady is a heck of an act to follow. I should like to talk specifically on Amendments 25 to 28, which deal with the serious issue of targeting specific workers, especially, I say to the Minister, trade union activists. On reflection, I could have raised this in the debate on Amendment 21, but it is appropriate to do it here.
These amendments in the name of my noble friends Lord Collins and Lady O’Grady contain the issue of work notices and the potential for bad bosses to target, humiliate and victimise trade union activists—as has been raised by my noble friends Lord Monks, Lord Hendy and Lord Blunkett. Unfortunately, history is full of examples where bad bosses, given the opportunity, victimise workers in struggle. I say this seriously. I am talking about bad bosses. I have met many good bosses in my lifetime.
Let us go back 30 years, when the major players in the construction industry blacklisted hundreds of activists, humiliating them by depriving them of making a living and denying that they were ever doing so—and there are many other examples that I could give. In the Bill, we have notices issued to break a strike. Is the Minister really telling me that the bosses will not target activists, shop stewards, branch officials, conveners and even health and safety reps? Let nobody say that this will not happen; it will, and there is absolutely no protection in the Bill for trade union activists.
It is all very well for the Minister to say that an employer cannot use union membership as the basis for choosing which workers are compelled to break their strikes—although there seem to be no sanctions whatever if they choose to ignore this—but there is nothing to stop them choosing union activists, and experience tells us that they will. Strike leaders will obviously be at the top of the bosses’ hit lists, but nobody is safe from being forced to make the agonising choice between betraying your trade union principles of solidarity and standing together as workers, or potentially losing your job.
Let us take health and safety nominated reps. They do a great job for workplaces but, as my experience tells me, they can be somewhat pedantic, both to companies and, on occasions, to trade unions. They are not even protected and are therefore open to discrimination if they are told to cross a picket line that other workers have voted for. Their independence will be compromised, and this will not help companies or businesses going forward.
The disgraceful thing in the Bill is that it gives employers the right to list trade union members who have already jumped through hoops to vote for a strike and will now be forced to betray their colleagues and their own principles. If they do not, they can also be fired. Surely that is unacceptable in 21st-century Britain. The Joint Committee on Human Rights certainly thinks so: in its hard-hitting report, it suggests an amendment very similar to Amendment 27. The amendments here go further and offer broader and vital protection for trade union activists in particular, and I urge Members to support them.
I conclude with a very simple question for the Minister: is this legislation intended to be used by bosses to target, humiliate and even victimise strike leaders and other trade union activists? If not, why is there nothing in the Bill preventing this from happening? We need to know, and we need to know now.
Lord Fox (LD)
I will speak very briefly to this group of amendments; I will make no attempt to emulate the speeches from either the noble Lord, Lord Woodley, or the noble Baroness, Lady O’Grady, who have great experience in the union movement.
In the Bill, there is a specific requirement for the unions “to take reasonable steps” to implement work orders. On these Benches, there is still no understanding of what “reasonable steps” actually means and what legal jeopardy unions would be in if they did, or did not do, particular activities. However, I characterise this collection of amendments as causing the employers to take reasonable steps not to victimise members of the union as a result of this legislation. Therefore, it adds a mirror to the reasonable steps that the unions have to observe, so that the employers should similarly observe the same steps—and I support the spirit in which the amendments have been delivered.
The noble Baroness, Lady O’Grady, mentioned private sector deliverers. Having read the letter from the noble Lord, Lord Markham, my reading is that he rules providers such as Amazon out of the remit of this legislation. It would be helpful if the Minister could confirm whether my interpretation is correct. I credit the noble Lord, Lord Markham, with coming to your Lordships’ House and participating in Committee. We had no such benefit of a Transport Minister, and we still do not know the position of private sector suppliers of services in the transport industry. While we seem to have an explicit ruling out of private sector deliverers in the health service, we have no such ruling out in the transport sector. Will the Minister, in responding to or confirming my interpretation of the letter from the noble Lord, Lord Markham, also tell us whether the similar and other deliverers of private sector services, which are crucial to the railway industry, will be included in the remit of the Bill, or, as in the health service, not included?
Lord Callanan (Con)
My Lords, I thank all noble Lords who have participated in this short debate: the noble Lords, Lord Collins, Lord Hendy, Lord Woodley and Lord Fox, and the noble Baroness, Lady O’Grady.
Amendments 22 and 24 to 31 all relate to placing additional requirements on the process of issuing our famous work notice. It is the view of the Government that the current requirements in the Bill strike the right balance between the views and perspectives of employers and unions to enable a reasonable and fair work notice to be issued. The Bill explicitly requires that employers must consult a relevant trade union, and have regard to their views, before issuing a work notice. Additionally, work notices must not include more persons than are reasonably necessary to meet the minimum service level and employers, as I said earlier, must not have regard to whether a worker is or is not a member of a trade union when producing that work notice.
I respond, first, to the point made by the noble Baroness, Lady O’Grady, who waxed lyrical about Amazon warehouses. While it is possible for a private business to be in the scope of minimum service level regulations, if they provide a relevant service as specified within the regulations, I am happy to reassure the noble Baroness that the Government have no plans or intentions to apply minimum service levels to Amazon.
Amendment 22 tabled by the noble Lords, Lord Collins and Lord Hendy, and the noble Baroness, Lady O’Grady, would limit the issuing of work notices to recognised trade unions only. However, it is of course possible that strikes can be called by recognised and unrecognised trade unions, which can lead to disproportionate impacts on the public. It is therefore our view that MSLs must be able to be applied where a union, recognised or not, provides a strike notice to an employer.
I move on to Amendments 24 to 31 from the noble Lord, Lord Collins, and noble Baroness, Lady O’Grady. Amendment 24 looks to ensure that employers cannot name more persons than necessary to secure the minimum level of service. However, it is already recognised that employers should not roster more people than are needed to achieve a minimum service level, so that some workers can continue to take strike action if they wish to—that is the whole principle of the Bill. That is why the Bill already requires employers not to identify more persons than are reasonably necessary. This enables the employer some limited flexibility in providing for contingency to respond on the day to any operational incidents, sickness or other types of absence. In our view, the existing approach strikes the right balance and provides sufficient safeguards for workers. To go further would limit or eliminate an employer’s flexibility, which could then mean that minimum service levels—the whole point of the legislation—would not be achieved.
Amendments 25 and 26 both look to ensure that each individual is able to go on strike for at least part of the period of the strike, notwithstanding any work notice. The Government resist these amendments for three reasons. First, the number of days on a strike notice could be substantial across both short and long periods for which the union has a mandate to strike. It is therefore reasonable that some workers may need to work more than 50% of those strike days, especially if their colleagues are off sick, on leave or attending training. Secondly, these amendments would cap the minimum service level and reduce the influence of the consultation, and those who respond to it, in the setting of the minimum service level. Thirdly, Amendment 26 appears to prevent any work notice being given where there is only one day given on a strike notice, which therefore creates a loophole which could be exploited—that may have been the purpose of the amendment.
Amendments 27 and 28 look to require the employer to ignore a person’s trade union activities or use of trade union services in deciding whether to identify a person in a work notice. However, we believe the Bill already sufficiently protects against any discrimination regarding a worker’s union status when employers are preparing their work notices. The trade union activity or services that a union member may have been involved in are connected to whether they are a union member, which, as we have already said, the employer must not have regard to.
Additionally, existing legislation—Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992—already provides a remedy for workers who are discriminated against on union grounds, and that section will continue to be applicable here. Therefore, we believe the amendment is duplicative in nature.
Lord Collins of Highbury (Lab)
My noble friend Lord Woodley raised the issue of a health and safety rep, who does not necessarily have to be a union rep or even a union member but may well be victimised because of their activity in protecting workers. Will the Minister ensure that is explicitly addressed?
Lord Callanan (Con)
I do not accept the word “victimised”. A work notice effectively says that somebody has to fulfil their whole working contract as normal, whereby they come into work and get paid for it. That is not victimisation in any conventional sense of the word.
Lord Hendy (Lab)
The Minister raises Section 146 of the 1992 Act, which protects against detriment on union grounds, as he rightly says. But “union grounds” means either union membership or union activity, and Section 151 is the same protection against dismissal on grounds of union membership or union activity. Can the Minister explain why only union membership is protected in this Bill and not union activity?
Lord Callanan (Con)
It is because, as we already said, Section 146 of the Trade Union and Labour Relations (Consolidation) Act already provides a remedy for workers who are discriminated against on union grounds. That section will remain applicable here, as I said earlier.
Lord Hendy (Lab)
I apologise for intervening again. The point is that Sections 146 and 151 specify membership and activities, whereas this Bill protects against discrimination on the grounds of union membership alone. If the same protection against union activity is required in Sections 146 and 151, it should be required here as well. The obvious implication, if you were arguing a case in court, is that that protection is not given under this Bill, otherwise it would have been included.
Lord Callanan (Con)
I will seek further legal advice. I am not a lawyer, but it seems to me that if the provision already exists in other applicable legislation, there is no need to duplicate that provision in another statute. I will certainly check that with the lawyers for the noble Lord.
Amendment 29 seeks to require the employers to be satisfied that the work notice does not identify more people than reasonably necessary before giving a work notice. However, as we set out in new Section 234C(5), the employer is already required to not identify more persons in the work notice than are reasonably necessary for the purposes of providing MSLs.
Amendment 30, meanwhile, seeks to require the employer to assess the equality implications of the work notice. Again, in our view, this is not necessary. The Bill does nothing to reduce the existing obligations of employers under the Equality Act 2010. As I said, there is an existing legal provision that continues to apply. There is no need to restate it.
Finally, Amendment 31 seeks to require the employer to assess the health and safety implications of the work notice and consult health and safety representatives. The Government’s view is that the current requirements in the Bill strike the right balance between the views and perspectives of employers and unions to enable a reasonable and fair work notice to be issued. As I have said, the Bill explicitly requires that employers must consult the relevant trade union and have regard to its views before issuing a work notice.
Adding any further steps or requirements to this process will result in disproportionate and costly burdens for employers and could result in delays to the issuing of a work notice by the employer and therefore delays to minimum service levels being applied. I fully accept that this may well be the purpose of the amendment, but I hope the Opposition understand why the Government cannot accept it. Additionally, when drawing up work notices, employers must still adhere to the relevant requirements set out in existing health and safety law. That is unchanged by this legislation.
For these reasons, the Government resist these amendments.
Baroness O'Grady of Upper Holloway (Lab)
I thank the Minister—I think—for that response. Many of us raising legitimate concerns about this Bill are quite disturbed that the argument for naming individuals seems to be that you have to name individual workers so that they can be threatened with the sack and that it is necessary to share those names with employers so that they can be required to take reasonable steps or face significant sanctions, including seeing the entire workforce stripped of protection against unfair dismissal.
The whole basis of this Bill seems to be born of a “command and control” school of management where you order people to work rather than seek agreement, which I think most modern management is about. That is why it is particularly frustrating for those of us who are critics of the Bill, because we know that where minimum service levels are genuinely needed for safety issues and made by agreement, whether or not those agreements have been made at the last minute—so be it; that is often the case—they are much more likely to work effectively than anything proposed in this Bill.
I could make a number of points. I thank the Minister for his point about Amazon, but I feel I have now heard very confusing messages across this Dispatch Box from him and the noble Lord, Lord Markham, so I will want to come back and clarify that.
At some point I would like an opportunity to explain more clearly the real concerns in the trade union movement about victimisation and derecognition. They are not being brought up to put obstacles in the way of this Bill. They are born of real-life experience, both of trade union officers representing shop stewards, convenors and reps who have been victimised and of many of our families who have been through this. The penalty of victimisation is so high—to have your livelihood removed is massive. I would like to pursue this area in other ways if possible, because I am sure we can convince the Minister of the sincerity of that concern and the need for genuine protection.
It is confusing why there are specific references to not selecting people on the basis of trade union membership but not extending that to those who hold trade union office and lay leadership positions.
I could go on, but I will leave the Minister with one last question. I have yet to meet a reasonable employer who wants this Bill. I have had plenty queueing up to tell me that it is wrong, immoral or maybe just unworkable and will make matters worse from a pragmatic perspective. Can the Minister tell us of a single employer or group of employers batting for this Bill? I have yet to meet one. I beg leave to withdraw.
Lord Fox
“(9A) Failure to comply with a work notice may not—(a) be regarded as a breach of the contract of employment of any person identified in the work notice, or(b) constitute grounds for dismissal or any other detrimental action.”Member’s explanatory statement
This amendment would protect employees from detrimental action for not complying with a work notice.
Lord Fox (LD)
My Lords, the Minister may feel a sense of déjà vu in this group, but the point is to turn the focus to the individual worker named on the work order. This is not about the union or the company; it is to amplify the effect that this Bill can have on the individual. That is why I am happy to present Amendment 32 and to support the other two amendments in the group.
Amendment 32 would protect employees from the detrimental action of not complying with a work order. The point here is to amplify that, at the moment, failure to comply with a work notice could be regarded as a breach of contract. This amendment seeks to remove that possibility. Why? Because we are looking at a list that is prepared by an employer, with no sense of what criteria that employer is using to deliver the list. The employer assesses the number of people, and indeed the names of those people, who are required to produce a minimum service level that a Minister has decided with very little recourse to Parliament. It is the individual who is at the end of that chain, over which they have no control or power whatever. That is the point I seek to emphasise here. It is the individual at the end who will carry the can for this Bill, if it becomes an Act.
I have proposed this amendment because I want to emphasise very clearly that, although the Minister says the Bill is not about wanting to sack people, it can, and because it can, it will be used in the future to sack people for not complying with work orders—work orders produced in a process over which employees have essentially no power or ability to appeal whatever. It is an absolute infringement of their freedom. That is why I propose this amendment. Under the Bill, the employee could be sacked for taking strike action that has been agreed by a democratic ballot, it having gone through all the hoops that the Government require such ballots to observe. Because the employer has decided to put them on a list, the employee cannot do that.
From everything that has come from the Dispatch Box so far, I think it will be hard for the Minister to understand this. However, it is something my colleagues on these Benches and I have discussed a lot, and which we find to be a really important element of the Bill. It is about the relationships between unions and their employers, and between the employers and the Government, but in the end, it is about a fundamental individual right, and this Bill removes that right. I beg to move.
Lord Hendy (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Fox. My Amendment 32A simply amplifies the noble Lord’s amendment and takes it a little further.
As I understand it, and the Minister will correct me if I have misunderstood the Bill, the consequence of being requisitioned and then refusing to work during a strike is that there will be no protection from unfair dismissal. As many other Members of the Committee have already said, if that is the case, bad employers—of which there are some—will use that as an excuse to be rid of people who they regard as trouble-makers, whether or not they are union activists.
The Lord Bishop of Manchester
My Lords, I speak in support of Amendment 41 in the name of the noble Lord, Lord Collins, to which my right reverend friend the Bishop of London has added her name, and the other amendments in this group. My right reverend friend regrets that she is unable to be in her place today. In fact, given that she is at this very moment leading a debate among fellow bishops on the subject of sexuality, I think she would much rather be here in your Lordships’ House alongside me. Therefore, in supporting these amendments, I wish to include a number of points which she would undoubtedly have made had she been here.
As we have heard earlier today, including from the noble Lord, Lord Allan of Hallam, proportionality is a central principle of law. I hope that noble Lords will allow me to draw attention from these Benches to an important biblical perspective on that topic. I suggest we should respect the limitations set by Moses over 3,000 years ago in the Hebrew scriptures. When Moses laid down a simple rule,
“an eye for an eye, a tooth for a tooth”,
he was not advocating mutilation as the proper means of punishment. He was making the crucial point that the punishment must never exceed the gravity of the offence.
Dismissal for failing to comply with an instruction to work on a strike day is, in my view, the view of the Joint Committee on Human Rights, and, I suspect, the view of many others, grossly out of all proportion. I also wonder how enforceable it would be. Were I a worker issued with such an instruction, the stress I would suffer in consequence could quite likely render me unfit to turn up to work on the day—and, as I trust your Lordships have begun to recognise, I am a fairly tough nut. Will the Minister therefore agree to explore, before we reach Report, whether some lesser maximum penalty would be more appropriate?
Moreover, as the Royal College of Nursing has said, sacking workers for failing to accede to such an instruction to work
“would exacerbate severe nursing workforce shortages”
that we already face. Nursing vacancies are already high—is it more than 43,000? That is a 10% increase over the last 12 months. There are similar shortages elsewhere in the public sector.
The first day in Committee highlighted major unresolved questions about the application of the Bill. The breadth of the roles under the titles of “health services” and “transport services” is huge. Providing minimum service levels that are of the same urgency, and providing for penalties of the same severity, for those who drive blue-light emergency vehicles and the driver of my local 98 bus is absurd.
The amendments in this group would continue protection of employees’ rights and would protect our workforces from further exacerbation of already severe shortages. I urge the Minister to accept them.
Baroness Chakrabarti (Lab)
My Lords, it is a great pleasure to follow the right reverend Prelate. We have already discussed at length the proportionality concerns about the minimum service level agreements being imposed per se, but now we get into the sanctions and consequences for trade unions in what will follow, but also for individuals. We must now talk not just about the vital human rights principle of proportionality that we discussed before but about the vital principle of non-discrimination.
This gives me the opportunity to reflect on an earlier exchange between the Minister and my noble friend Lady O’Grady of Upper Holloway. There was a dissonance about this concept of victimisation. As I understand it, the Minister was saying, “For goodness’ sake. It’s not victimisation to say that there needs to be a minimum service level agreement to protect the public, and therefore there have to be work notices”. However, what perhaps the Minister did not hear or understand is that when you give employers the power to pick and choose between individual employees, we are opening up the Pandora’s box of abuse of power. When we legislate in your Lordships’ House, we have to guard against potential abuses of power.
If employers, scrupulous or otherwise, are allowed to pick and choose between individuals, some people will never be on the list but other people will be, and sometimes the people will be selected for that list on grounds that include their race, sex, sexuality and possibly even their role within trade union activity. I think that is the point my noble friend was trying to make to the Minister, and this is the power that is being handed to individual employers, in contrast with years of struggle for protection against discrimination, including discrimination on the grounds of trade union activity as well as membership.
If, as I fear, the Minister will not pause the Bill or introduce greater parliamentary protection before the powers can be triggered in the first place, please will he look at the powers given to individual employers over groups and particular employees in the workplace, because it is invidious and, I think, very dangerous?
Baroness Noakes (Con)
My Lords, it seems to me that the noble Lords, Lord Fox and Lord Hendy, are finding yet another way to try to deprive the Bill of any effect. In their own ways, they are trying to make it entirely voluntary to take part in the provision of minimum service levels, if requested by an employer. That runs completely counter to the policy intent of the Bill.
If noble Lords think that the Bill needs to be modified in some way to reflect their concerns, it is incumbent on them to produce amendments which find a practical way through that. To simply, in effect, make compliance with a minimum service level work notice voluntary is unacceptable in the context of the Bill. Although I understand the points that the noble Baroness, Lady Chakrabarti, makes, those issues are already covered by discrimination law. The concern she has about being selected on the grounds of sex, sexual orientation or race is already covered by discrimination law and does not need to be protected again in the Bill.
Lord Fox (LD)
Does the noble Baroness accept that in Committee, there are two sorts of amendments: there are amendments which are very practical and designed to be used as a template for changing the Bill, and there are probing amendments? I point out that I made it very clear that the latest two groups I was speaking to were probing amendments. On that basis, I think her criticism is invalid.
Baroness Chakrabarti (Lab)
I am grateful to the noble Baroness for engaging so specifically and constructively in the debate, but I do not think she appreciates just how difficult it is, even under the present law, for people to go to a tribunal, with or without the assistance of lawyers or their trade unions, to demonstrate that they were picked on for one of these reasons. Now, in this Bill, a specific protection against unfair dismissal is being removed. An employer will say, “No, no, X, Y or Z was picked for this other reason. They are essential to the service”. It just happens to be the noble Baroness, Lady Chakrabarti, who is essential to the service every time and not, for example, my noble friend Lord Hendy, who of course is the expert. If I am always essential to the service and he is not, it will be very difficult for me to demonstrate that it was discriminatory, when the whole purpose of the Bill is, as the noble Baroness said, to remove protection from unfair dismissal.
Baroness Noakes (Con)
The purpose of the Bill is not to remove protection for unfair dismissal; the purpose of the Bill is to ensure that minimum service levels can be guaranteed for those who rely on the services, and we are trying to find practical ways through that. I was inviting noble Lords to find ways did not simply rip the heart out of the Bill.
Lord Hendy (Lab)
I just say to the noble Baroness that there is nothing wrong with conformity being voluntary. The whole basis of the ILO jurisprudence is that minimum service levels and requisitioning should be agreed voluntarily between the unions and the employers. In most of the countries of Europe where they have minimum service levels, volunteers are sought to provide the minimum service. That is also true in this country. We have been hearing for days about the local agreements that are reached in all the six sectors identified here.
That is done on a voluntary basis, and the people who do the work volunteer to do it. They speak to their union, and the union says, “Somebody has to do it; you’re going to do it”, and they say “Okay, fine if that is the price of having the industrial action and bringing pressure to bear to maintain our standard of living, that is the price I am prepared to pay”.
There is nothing wrong with voluntariness. It does not detract from the rest of the machinery of the Bill in setting minimum service levels and issuing work notices, if that is really what the Bill is intended to do.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, I will speak to Amendment 41 in my name and the names of my noble friend Lord Collins and the right reverend Prelate the Bishop of London, and support the amendments tabled by the noble Lords, Lord Fox and Lord Hendy.
Many of us agree that one of the most disturbing features of the Bill is that it hands employers powers to name individual workers in a work notice and potentially force them to work against their will, through a strike, without their individual consent or the agreement of their union—or face the sack. Many employers in the public and private sectors have told us very clearly that they do not want this authoritarian power because it would sour industrial relations. If the Bill is enacted, they fear that they would come under undue political pressure to exercise that power. The publication of WhatsApp messages, as I mentioned previously, between the then Health and Education Ministers revealed that at the very same time as they were publicly praising, clapping and thanking key workers for their efforts during the pandemic, privately they were describing those same workers and their unions—unions are made up of workers—with contempt.
The noble Lord, Lord Callanan, has often sought to reassure us by saying that he hopes the powers will never be used and that there would be no undue pressure. However, I am sure that he would agree—I might even get a smile out of him—that if Gavin Williamson was Education Minister today, on the evidence of those WhatsApp messages, he would be straining at the leash to ensure that academy schools pulled that trigger. That is the fear.
The Government have continually cited France, Italy and Spain as countries that also provide minimum service levels. However, unlike in the UK, in each of these countries the right to strike is a constitutional right. Perhaps the noble Lord can also confirm which of these countries, if any, have provided a blanket power to remove protection against dismissal for individually named striking workers? I submitted a Written Question on this subject, but the response I received did not answer the Question. What is more, it took 15 days rather than the expected 10 not to answer my Question. In fact, the answer, as we have heard, is zero. None of those countries does that.
Can the Minister also explain and justify a gaping hole in the consultations issued on the Bill so far? Those consultations failed to ask whether respondents agree with the Government that it is acceptable to sack individual firefighters, ambulance staff and rail workers if, for example, for reasons of conscience they do not comply with the work notice. Could it possibly be that this is not in the consultation because Ministers know that they will not get the answer that they want? Most fair-minded people find the idea of such sackings abhorrent. The sacking of individually named workers who refuse to comply would be catastrophic for workers’ rights, staff morale and industrial relations in this country. I remind the Minister that NHS job vacancies currently stand at over 133,000 and that 17% of newly qualified teachers leave within two years.
Not so long ago, following a public outcry about what happened at P&O, Government Ministers condemned its scandalous behaviour, and rightly so. Ministers said then—I quote from the 24 January government press release—that unscrupulous employers
“must not use threats of dismissal to pressurise employees into accepting new terms”.
But the Bill provides powers to do exactly that: to pressurise key workers into accepting terms under threat of the sack. These key workers’ heroic work through the pandemic has earned the public’s respect and gratitude. One firefighter was moved to write a letter about his experiences. He says that he has been proud to work for the service for 15 years, including being deployed to Nepal following the devastating earthquakes in 2015; that he and his colleagues have a can-do attitude and have provided emergency cover voluntarily when needed through industrial action; and that they entered the service because they want to help people. He warns against this legislation and says that it is unnecessary, given that arrangements for emergency cover are already in place, and says that Ministers
“can’t simply legislate away the depth of anger and frustration we feel about how we’ve been treated. The Bill could lead to individual workers like me being sacked for taking part in legal and democratically decided industrial action over issues which are genuinely of concern to society in general.”
Taking the power to sack workers whose names are chosen unilaterally by employers, as sanctioned by Ministers, is understandably perceived as deeply provocative. If this firefighter refused to comply with the work notice, does the Minister really imagine that his colleagues would stand by and let him be sacked? Some argue that the Bill is intended to be provocative but, if so, that would be foolish. The provision to sack workers flies in the face of all industrial relations common sense and any sense of human decency.
I know that we are covering the same ground, but it is not just named individuals who could be vulnerable to the sack, as the Joint Committee on Human Rights made clear in its report:
“We find it hard to see how it is compliant with Article 11 ECHR to expose any participant in industrial action to the risk of dismissal simply because a trade union fails to take unspecified ‘reasonable steps’ required in respect of those subject to a work notice.”
I will not go on, but I look forward to the Minister's response—or, better still, an indication that this Government will remove that right to sack striking workers from the Bill.
Lord Callanan (Con)
My Lords, I thank all noble Lords who have contributed to this debate. At the risk of provoking further interventions, I will start by replying to the noble Baroness, Lady Chakrabarti. I do not know the legal definition of victimisation, but her understanding of it is clearly different from mine. I would define it as something like “subjecting an individual to degrading, unfair treatment”. In effect, a work notice says to an employee, “You fulfil your contract, as has been previously agreed, as normal. You come into work, do your normal contracted job and get paid for it.” In any definition that I understand, that is not victimisation. Obviously she has an alternative view, but I do not believe that it would come under the definition.
I will directly address the point by the noble Baroness, Lady O’Grady. I have said it before and will say it again: this legislation is not about sacking key workers. Let me be very clear about that. She inquired about the outline of the Bill: it is about protecting the lives and livelihoods of the public by enabling minimum service levels to be applied on a strike day. If people comply with the legislation, then there is no question of anybody being sacked on the basis of it.
This group of amendments seeks to ensure that no detrimental action could be taken by an employer against persons who are named on, but then fail to comply with, a work notice. There would be no consequences for participating in a strike despite being named on a work notice. The whole intention of these amendments is not to achieve a balance between the ability to strike and the rights and freedoms of the rest of us to go about our normal daily business—to get an ambulance, to attend the health service or to have a firefighter come to put out a fire in my property. This is about ensuring that strike action can continue with no consequence whatever and with no regard as to whether a minimum service level will be achieved. That fundamentally cannot be accepted by the Government.
For a minimum service level to be achieved, it strikes me as obvious that enough people need to attend work and therefore workers need to be appropriately incentivised to do that. The legislation achieves this by removing the automatic protection from unfair dismissal where employees participate in strike action despite being named on a work notice. While it is at the discretion of employers rather than the Government as to what, if any, action is then taken against employees in those circumstances, we think it vital that the Bill equips employers to manage instances of non-compliance, just as they would in any other case of unauthorised absence, to enable them to achieve that minimum service level. As my noble friend Lady Noakes observed, employees retain all their existing protections against discrimination—a very good point that further reinforces why these amendments are not required.
Overall, we believe that the approach in this legislation is fair and reasonable and ensures that there is the balance, which we have talked about so often, between the ability to strike and the rights and freedoms of everyone else to go about their daily business and use essential public services. Removing the ability for there to be any consequences whatever for failing to comply with a work notice would likely lead to strikes being more disruptive, as we have seen, when compared with the level of service that employers would be able to provide by applying a minimum service level that allows for these consequences.
Finally, there is a point of detail. Amendments 32 and 32A, if implemented, would cause a significant legal conflict with Part 2 of the Schedule, which makes amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 to make clear that there is no automatic protection from unfair dismissal for an employee who is identified in a valid work notice but participates in the strike contrary to that work notice.
In conclusion, I resist these amendments on the grounds that they seek to sustain or increase the disproportionate impact that strikes in these key areas can have on the public as a continuation of the status quo, a continuation of the public being disproportionately impacted by strikes and a continuation of lives and livelihoods being put at risk by those strikes. Therefore, I cannot accept these amendments.
Lord Fox (LD)
With each group of amendments that passes, I get the impression that the area of carpet between me and the Minister is getting larger. The differences are getting larger rather than smaller, which is disappointing because sometimes in Committee they can be narrowed, but I do not get that sense. In describing the change in a person’s contract so that on one day they are able to strike with legal protections and on the next day that contract is unilaterally changed, I do not have to use the word “victimisation”. I can use some other word, perhaps “unfair” or “wrong”. That is the fundamental difference between me and the Minister, and that is what is causing the carpet to expand. Acknowledging that this was a probing amendment, I beg leave to withdraw the amendment.
Lord Collins of Highbury
Member’s explanatory statement
This amendment is to probe the level of protection of unions when involved in industrial action.
Lord Collins of Highbury (Lab)
My Lords, I suppose I had better start by making clear that I am probing these relevant clauses because I do not think what is set out in the Bill is clear. I also think it is important that we set out where we are on statutory protection for unions. We are certainly probing what could be considered “reasonable”—a word that I find extremely difficult without any further description in the Bill.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
I should advise the Committee that if this amendment is agreed, I will not be able to call Amendments 34, 34A or 35 for reason of pre-emption.
Lord Hendy (Lab)
My Lords, I shall speak to Amendments 33 and 34. I share my noble friend Lord Collins’s outrage at this proposal. It is one thing to set minimum service levels and another thing to specify requisition notices by way of a work notice, but to require trade unions to organise themselves so as to break their own strike is a step that has never before been taken in this country and, so far as I am aware, is not required in any other country in Europe.
I remind the Committee that the provision in the Bill that we are seeking to discuss says
“the strike is not protected as respects that person’s employer if … the union fails to take reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice.”
So the obligation on the union is to
“take reasonable steps to ensure”
that all members comply with the notice. That is a very heavy obligation to put on unions. In principle it is objectionable, but the extent of it makes it even more so.
I cannot develop the objection on principle further, but there are some practical considerations here that perhaps the Minister can consider. We are envisaging a work notice given by the employer to the union, setting out names of a number of workers who are required to work and the work that they are required to do; we remind ourselves that, at the end of the Bill, it is said that that can be on a daily basis. If you have one employer and one strike affecting a small number of workers, that may be a relatively easy obligation to comply with.
However, I remind the Minister that the Bill applies to the education service. I have just looked up the Office for National Statistics site, which tells me that there are 32,226 schools in this country—although in fact I understand from the National Education Union that it balloted only some 24,000-odd of those. Think of that: even if we assume that only half the employers decide to supply a work notice, on a daily basis the unions are going to get 10,000 or 12,000 emails with a list of teachers who are required to be in. The union then has to set that list against its own membership database in order to determine which of them are members of the union, and then has to communicate with each one of them in order to demonstrate that they have taken “reasonable steps to ensure” that those members comply with the notice. This is just nonsense, is it not? It really must be.
Part of the problem is that the Bill does not define “reasonable steps”—that will be left to the courts to determine. I have done enough of these industrial action cases over the last 40 years to know that employers’ barristers—all friends of mine—are going to use every argument in the book to demonstrate that the union has not taken the “reasonable steps” that the employer says it should have. One of those, of course, will be to say that the union did not threaten to discipline any members who refused to comply with the notice or expel anybody, and to ask what it did do.
All of this is against the background of a union having committed itself, after a vote in favour by the members—a vote which meets all the thresholds—to advancing a strike. All the publicity that goes out from the union’s website and journal and in emails to members will say that it is calling a strike on, say, the 24th of the month, starting at midnight, and calling for members to join the strike, go on the picket line and participate—this is their fight and their struggle for better pay and conditions, or whatever it is. However, the union has to demonstrate that it identified those members appearing on a work notice in order to show that it took reasonable steps to ensure that those members complied. This is simply not realistic, and it is not acceptable.
Lord Fox (LD)
Following on from the noble Lord, Lord Hendy—I apologise for butting in—it is not quite as simple as that. What happens if, of the employers list, 30% of them go off sick? Who is accountable for filling in the gap? Is it the union? Does it have to take “reasonable steps” to find substitutes? The Minister shakes his head to say that it does not—that is good. Perhaps when he replies he can explain what happens in the event of a significant number of those people going off sick.
I will not add any more, as I am sure there will be plenty from the Benches of His Majesty’s Opposition.
Lord Woodley (Lab)
My Lords, I support these amendments and want to complement and supplement the contribution of my noble friend Lord Hendy. As he said, these amendments deal with the fundamental issue of protecting trade unions from being forced to act against their own interests during a legally authorised dispute.
Like my noble friend, I find one of the most appalling parts of this skeletal Bill the requirement for trade unions
“to take reasonable steps to ensure”
members comply with a notice to strike-break. Ensuring compliance is the role of the trade unions, according to the Bill. What on earth does that mean in practice? There is nothing in the Bill to guide us here. How can unions be expected to police their own members who, after all, are simply ordinary workers who voluntarily joined the union? They pay their subscriptions and expect their union to support their democratic decisions, especially during disputes.
How is compliance normally ensured? How does the state ensure that people comply with its laws, for example? Again, as my noble friend Lord Hendy said, it is by threat of sanction or some kind of punishment. Is that what is meant here? Are trade unions supposed to threaten their own members with some kind of punishment if they do not cross their own picket lines? It is ridiculous. It is certainly not clear in the Bill whether that is or is not the case. But you can bet one thing: the bosses will see it that way.
What if the bosses or, ultimately, the courts decide that this punishment is not harsh enough? What if it is decided that the union did not take so-called “reasonable steps” or threaten punishments harsh enough to ensure that its members complied with the employer’s work notice? What then? Well, the whole strike loses legal protection, as does the union. What does that mean? The Minister in the other place was very clear in his letter to the Joint Committee on Human Rights when he said that all workers would
“lose their automatic protection from dismissal for industrial action”.
In short, they could face the sack. There is no dispute about what was said in the other place.
Baroness Chakrabarti (Lab)
My Lords, this group gives me the opportunity to speak to the noble Baroness, Lady Noakes. Earlier, she encouraged the Committee to be constructive when we debated whether an amendment was probing or constructive. Given the gestures from the Minister from a sedentary position, it is clear that, even if the Bill passes, there is room to specify these reasonable steps and new duties upon trade unions. That is my attempt to meet the noble Baroness half way and be constructive about a Bill that I think is hugely disproportionate.
With the greatest respect to my noble friend who just spoke, these amendments do not just expose a breach of Article 11, on freedom of association; they quite possibly expose a breach of Article 9, on freedom of conscience. I am afraid there are no right reverend Prelates here at the moment, but it is as if we were to say to the bishops, “We live in a modern, diverse democracy, even though we have an established Church, but it is now your obligation to actively encourage divorce and abortion.” Clearly, that would be ludicrous, and it is equally ludicrous to be saying to trade unions not only that, as indicated in Amendment 34, they should try to make their members aware of the legislation and of work notices, but that they should ensure compliance as well. The Government are making employers in relation to these public services the policeman for the Government, but it is a step too far to make unions the policeman for the Government as well—not least in the context of disputes which will continue to be lawful under this proposed legislation, but just some people will have to go to work.
Hence, I commend in particular Amendments 34, 34A and 35, which highlight that knowledge is one thing but ensuring compliance is another. They demonstrate at length that unions should not be disciplining their members for not going to work, and that picketing has to remain perfectly lawful, not least because most workers, we hope, or many workers, will still be entitled to go on strike, notwithstanding the minimum service levels and the specific work notices. The Bill needs to specify what is reasonable and what is required of trade unions.
Baroness Noakes (Con)
Does the noble Baroness agree that “reasonable steps” is a formulation used in a number of legislative formats? It has not been defined further on those occasions when it has been used in order to provide the flexibility to allow for the situation to be judged on its individual circumstances and, indeed, to allow for technological developments. What would have been reasonable, for example, in communication with affected workers 10 years ago could be quite different now. If we take the example of the duty to prevent bribery, “reasonable steps” is not defined in law and that is a virtue of the law, because it allows the situation to be judged at the time. That is why the Bill takes this pragmatic approach.
Baroness Chakrabarti (Lab)
I totally agree, by the way, with the noble Baroness that there are areas of our common law in particular, and some statutes, where the inclusion of the adjective “reasonable” by itself will do the trick. I disagree that it is appropriate here because we are asking unions to do something that is inherently counterintuitive to their raison d’etre, which is to organise workers, in extremis, to go on strike. If one is saying to the union, “You are now having to push against the grain of your whole existence, the existence of your organisation, and your freedom of conscience and your association, which you are entitled to under the convention and the ILO”, and if one is pushing them in the opposite direction, one has to be very specific and proportionate about the nature of that totally counterintuitive duty.
Baroness O’Grady of Upper Holloway (Lab)
If I can elaborate even further, it is not necessarily the issue of being counterintuitive or not; if there is a voluntary agreement, both parties enter into that voluntary agreement with good faith. So if, as we have discussed many times before, safety is genuinely at risk and there are life and limb agreements, unions and employers work incredibly closely together to secure the consent of individual workers, and issue them with what we call exemptions to go across that picket line. That can all happen. But as soon as you introduce the law and remove that requirement for agreement, why is it our responsibility to make this work? It is not our responsibility; it is the employer’s responsibility. You cannot have it both ways. If we are going to have a voluntary agreement, we will do our best to honour and make that voluntary agreement work. If the state intervenes and dictates to workers under threat of dismissal, it simply will not work.
Lord Callanan (Con)
My Lords, I am grateful to those who have contributed to the debate.
It should go without saying that, to achieve a minimum service level, employers, employees and trade unions all have a part to play, and the Bill makes clear what those respective roles are. As many Members have quoted, unions are required to take “reasonable steps” to ensure that the union members named in the work notice comply with the notice. If they do not, they will lose protection from legal claims.
In response to the noble Lord, Lord Woodley, I say that there are a range of steps that trade unions could take, and what is considered reasonable can depend, as my noble friend Lady Noakes made clear, on each specific situation. First and foremost, a trade union should not call a union member identified in a work notice as required to work on a particular day out on strike that day. The trade union could also encourage those individual members to comply with the work notice and make it clear in its general communication with workers that, where members are named in a work notice and therefore required to work on a particular day, they should work on that particular strike day.
Before turning to the individual amendments, I will respond to the question from the noble Lord, Lord Fox, about what would happen if a number of the workforce are sick on the day of the strike. As I indicated to the noble Lord from a sedentary position, the responsibility of the unions is to take “reasonable steps”, as it says in the Bill. If union members named in a work notice are off sick, it is not the responsibility of the trade unions to find other members to take their place; it is the responsibility of employers to ensure that enough work notices are issued to fulfil that minimum service level.
Amendments 34 and 34A seek to diminish the responsibility of unions to take reasonable steps to ensure that their members who are named on a work notice actually attend work rather than participating in strike action. These amendments would remove any obligation on the trade unions to notify their members of the need to comply with a work notice and not to take part in the strike, which, in my view, would reduce the likelihood that a minimum service level will be maintained or achieved. Therefore, the Government are unable to accept them.
Amendment 33 goes further and seeks to ensure that unions have no responsibility whatever for ensuring that their members comply if they have been named on a work notice. It also ensures that there are no consequences for failing to meet that responsibility. I submit that that is an attempt to disrupt the balance between the ability to strike and the rights and freedoms of others, and therefore the Government cannot accept the amendment.
If a union member does not cross a picket line when identified on a work notice, this will of course negatively affect the employer’s ability to achieve the minimum service level at all. The picket line is usually a critical place for a union to exercise persuasion over its members, and we have seen some egregious examples of that. However, the Bill and the achievement of minimum service levels would be substantially undermined if the union’s obligations did not extend to picketing, and therefore we cannot accept Amendment 35.
The responsibility of the union to take reasonable steps is a continuing one, because the impact on the public is the same if a minimum service level is not achieved, whether or not that results from picketing activities. Therefore, the Government cannot accept these amendments, which would significantly reduce the responsibilities of trade unions. Our view, which is reflected in the legislation, is that they need to play their part in ensuring that essential services continue during strikes. As always, we encourage unions to act responsibly and to fulfil their statutory duty that will be established by the Bill if it becomes law. I therefore hope that the noble Lord, Lord Collins, will withdraw his amendment.
Lord Collins of Highbury (Lab)
The simple fact is that the Minister tries to keep repeating a narrative that the Government are on the side of the public and, somehow, the Opposition are not. Actually, that is not the case, and, as I said before, the public will not be fooled.
I am glad that the noble Lord, Lord Markham is here, because we had a discussion about the six sectors. There was a manifesto commitment on transport, but then that disappeared, especially when an impact assessment said that the law would not work and would prolong disputes, with greater impact on the public, so it is not worth doing. Now, we have had discussion about six sectors, a number of which have very strong voluntary agreements that work. Employers have told us that where people volunteer to do something, against their conscience, which is what we are talking about, it will be more effective. In the health service, NHS Providers is telling us that that is what it wants to do: it wants to ensure that people volunteer and that there are proper cover arrangements. What we are moving to here is compulsion, penalties and dismissal. It will have the complete opposite effect to what the Minister has said.
Lord Collins of Highbury
“(1A) At least one month before making regulations under section 234B, the Secretary of State must publish indicative minimum service levels for any service that the regulations will provide for.”Member’s explanatory statement
Requires indicative minimum service levels for any service to be set out before regulations can be made for that service.
Lord Collins of Highbury (Lab)
This is going to be relatively easy to deal with, because the Minister has already given us an answer on the previous group. Actually, the answer he gave us is the reason I have separated out this amendment—I think it reflects something else that committees of this House have been extremely concerned about, certainly in the two reports that my noble friend Lord Hendy referred to earlier. When our Delegated Powers and Regulatory Reform Committee reports, it reports in a timely way that ensures that when Parliament and this House consider legislative proposals, we are informed. That information is also governed by the Government’s response.
The Bill has gone through the Commons stages with very little scrutiny and lands up here. We have three detailed reports on this piece of legislation, all of them fairly critical, as in paragraph 23 of the Delegated Powers and Regulatory Reform Committee report. There is only one example of what a minimum service level might contain, which is the service in the transport sector, so everything else has been completely ignored. There are no examples; there is nothing we can assess to see how these powers we are being asked to give to Ministers may be used. The Delegated Powers Committee’s response is that if they do not tell us, we should not give them the power. When are the Government going to properly respond? I insist that they respond as quickly as possible, well before any sort of timetabling for Report. It is fundamental to our democracy that the Government respond to the requirements of Parliament. It is outrageous that they have not done so already. I beg to move.
Baroness Chakrabarti (Lab)
My Lords, this is neither a wrecking amendment nor a probing amendment; it is a most reasonable amendment. Why? Because some of us who have constitutional concerns about skeleton Bills and Henry VIII powers do so because, even with affirmative procedure, Members of Parliament and Members of your Lordships’ House are not able to amend secondary legislation, unlike Bills. The ability to improve the legislation just is not there. If that is going to be the case here, because we cannot persuade Ministers that these matters, if necessary in extremis, should be dealt with in primary legislation, what are we going to do instead?
If there is to be any possibility of improving minimum service level agreements and the regulations that impose them, there needs to be a statutory amount of time on the face of the primary legislation so that parliamentarians, while they will not get the process they get when a Bill goes through Parliament, will know that they will have at least a month to look at what is proposed and then try to speak to Ministers, write to Ministers and raise questions in each House. That, in some small way, would be an attempt to compensate for the fact that this is not primary legislative procedure with the ability to table amendments, divide the House and so on. This seems totally reasonable to me and a constructive amendment in the face of these Henry VIII powers that have caused such concern to the various august committees and the noble and learned Lords who normally sit with the noble Lord, Lord Hogan-Howe—he is a bit lonely at the moment. It is totally reasonable.
I cannot understand what the objection could be to just being clear, even if informally, that there will at least be this amount of time to be able to improve the regulations. I think Hansard will record that the Minister, in answer to me on a previous group—it may have been a slip—said that Parliament can improve the regulations. Actually, it cannot, but by this kind of stipulation it could, at least informally, make its attempt.
Lord Fox (LD)
My Lords, this is something of an hors d’oeuvre for the next group, so I will save my comments on this issue—although I thoroughly agree with the noble Baroness—for Amendment 37, which I consider to be a meatier version of the same issue. This is clearly starting the move to the territory where we give Parliament the opportunity at least to scrutinise, if not amend, what comes before it. We will come to more of that in a few minutes.
Lord Hendy (Lab)
My Lords, at the risk of saying what I said earlier, if this amendment is not accepted by the Government, that presents a problem to the whole House as to what is to be done about Bills that do not conform to the elementary requirements of various committees, where detail is not published in the Bills but reserved to regulations. That problem will have to be confronted if the Government are not prepared to accept this very modest amendment, as my noble friend Lady Chakrabarti put it.
Lord Callanan (Con)
I thank noble Lords for their contributions to this debate. To start with the question from the noble Lord, Lord Collins, about the Government’s response to the reports from the Delegated Powers Committee, the Constitution Committee and the Joint Committee on Human Rights, I am happy to confirm that I expect to be able to respond to those reports before Report.
This amendment tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, requires indicative minimum service levels to be set out before regulations can be made for that service. The Government recognise the importance of relevant parties having sight of a minimum service level before it is applied. That is why Secretaries of State must consult on minimum service level regulations and why Parliament will have an opportunity to contribute to the consultation and scrutinise those regulations, which are subject to the affirmative procedure, as I have said before.
The effect of this amendment is superfluous, given that all parties will be able to know the proposed minimum service levels once regulations are laid in the usual way. This approach ensures that the implementation of MSL is not significantly delayed, thereby not extending the disproportionate impact that strikes can have on the public. I am sure that the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, will understand, if not agree, why the Government cannot accept the amendment.
Lord Collins of Highbury (Lab)
In light of those comments, I beg leave to withdraw the amendment so that we can move on to the next group, where we will have a much more comprehensive debate.
Lord Fox
(4A) The Secretary of State must lay before Parliament—(a) a draft of the regulations, and(b) a document which explains the draft regulations.(4B) Where a draft of the regulations is laid before Parliament under subsection (4A), no statutory instrument containing the regulations may be laid before Parliament until after the expiry of the 30-day period.(4C) The Secretary of State must request a committee of either House of Parliament whose remit includes either the wider UK workforce and industrial relations, or the sector to which the regulations relate, to report on the draft regulations within the 30-day period. (4D) In preparing a draft statutory instrument containing the regulations, the Secretary of State must take account of—(a) any representations,(b) any resolution of either House of Parliament, and(c) any recommendations of a committee under subsection (4C),made within the 30-day period with regard to the draft regulations.(4E) If, after the 30-day period, the Secretary of State wishes to make regulations in the terms of the draft or a revised draft, they must lay before Parliament a statement—(a) stating whether any representations, resolutions or recommendations were made under subsection (4D),(b) giving details of any representations, resolutions or recommendations so made, and(c) explaining any changes made in any revised draft of the regulations.(4F) The Secretary of State may make a statutory instrument containing the regulations (whether or not revised) if, after the laying of the statement required under subsection (4E), a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(4G) In this section, references to “the 30-day period” in relation to any draft regulations is to the period of 30 days beginning with the day on which the original draft regulations were laid before Parliament.(4H) For the purposes of subsection (4G) no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.”Member’s explanatory statement
This amendment seeks to provide Parliament with the opportunity for enhanced scrutiny of the regulations made under this section.
Lord Fox (LD)
My Lords, Amendment 43 in this group is also in my name. In a sense, this provides a more general debate, to which the noble Lord, Lord Collins, has given us an amuse-bouche.
Amendment 37 introduces a super-affirmative process, the need for which the noble Baroness, Lady Chakrabarti, referred to, although not in those same words. Those noble Lords who have participated in the same Bills as me will be familiar with this format, because I have brought it to several Bills—indeed, I am doing so concurrently. I did not invent this process, but I feel that it is a very good way of giving Parliament a sense of ownership and oversight of the sort of things that we are talking about today. It seeks to provide Parliament with the opportunity for extended scrutiny.
Lord Prentis of Leeds (Lab)
My Lords, I speak in support of this group of amendments, particularly Amendments 42 and 44, which, if agreed, would remove the unfettered power of the Secretary of State to amend, repeal or revoke primary legislation.
The strikes Bill is not a slight tinkering of existing legislation. What the Committee has before it is a far-reaching Bill. It is a draconian Bill which curtails the fundamental right to strike, weakens protections against unfair dismissal, violates ILO standards, and introduces the possibility of front-line workers facing dismissal for taking part in lawful industrial action. What we also have before us is a skeleton Bill, which until now has had little or no scrutiny—a Bill which has been rushed. It has been described as having Henry VIII clauses on supercharge and, as we have just heard, as a skeleton Bill lacking bones.
It is only 10 weeks since I had the privilege of making my maiden speech in support of two House of Lords committee reports which go to the core of our democracy: Democracy Denied? and Government by Diktat. In that debate, I spoke of the public’s growing distrust of our Parliament, not just in the devolved nations but throughout the UK. I acknowledged that the reasons for this were complex and that concern about the increasing use of statutory instruments was not something you would hear discussed in the pub or the supermarket, or even around the breakfast table. So why does it matter?
It matters because the processes of Parliament through which we govern are so important. They instil trust and confidence in our democracy. Secretaries of State who avoid parliamentary scrutiny call into question that very trust and confidence in our whole institution. It matters because global confidence in our economy is intrinsically bound up with confidence in our democratic traditions, and it matters because skeleton legislation could lead to the very government by diktat that noble Lords of all persuasions have set their stall against.
That is why the Bill we have before us today is so fundamentally flawed. It flies in the face of both those reports and, unless amended, it will give unfettered powers to the Secretary of State to revoke or amend primary legislation through regulation. That is why Amendments 42 and 44 are so important.
The Bill is deficient in so many respects. It is vindictive and divisive, and it does nothing to deal with the serious crises our public services are facing. The report of the Regulatory Policy Committee, which we have heard about, states that the Bill is not fit for purpose—a damning indictment by any standards. NHS Providers states that it will undermine partnership working in the NHS. The Joint Committee on Human Rights criticises the:
“Heavy-handed sanctions … compounded by vague rules”.
Comparisons made with other European countries simply do not stack up and have been roundly dismissed by those countries themselves. If the Bill becomes law, there is a real risk of contravening our international obligations. For me, it is simply unnecessary and harmful.
In the last few weeks we have seen public service workers, their unions and employers coming together to reach agreements, trying to help so many workers and their families who are suffering. Yes, it may have taken far too long, but both sides are now at the table, doing what they do best: talking, negotiating, reaching accommodations, finding ways forward and, most of all, working to restore relationships for the future. This Bill will damage all that good work. It is vindictive and malicious and it will set the scene for conflict and retaliation for the next decade, just at a time when there is light at the end of the tunnel.
I ask the Minister to accept Amendments 42 and 44. Failing that, I ask him to explain why he will not. More than that, I ask him to think again. Surely it is time for the Government to reconsider their position on the Bill and put it on the back burner, where it deserves to be.
The Lord Bishop of Manchester
My Lords, I support Amendments 37 and 43 in the name of the noble Lord, Lord Fox.
Many noble Lords have already commented on the Bill’s skeletal nature—I will not repeat their comments here. Amendment 43 would insert an invaluable safeguard, removing overreaching Secretary of State powers to amend, repeal or revoke primary legislation through secondary legislation. Liberty writes that, as it stands, Clause 3 is a “broad Henry VIII power”—we have heard that monarch referred to several times today; I fear I may refer to him again in a moment. It is also a prospective power that allows the Government to amend and revoke legislation not yet passed.
The delegated powers memorandum seeks to justify this power as a prudent provision to deal with any necessary consequential amendments identified in the Bill’s preparation. As the noble Lord, Lord Fox, reminded us, this means that the Government are taking this exceptional power either because they are not sure what they want to achieve or because they do not know how to get there. I do not believe either of those to be an adequate justification, and I am delighted to hear that Jacob Rees-Mogg may be of a similar opinion.
I enjoyed the remark of a noble and learned Lord earlier today that this is “Henry VIII on stilts”. It left me wondering whether I should be imagining the young Henry, fit and active, or the monarch in his latter—shall we say rather less athletic?—years. The older Henry would have crashed off his stilts to huge personal injury and embarrassment. I fear that the Bill, if enacted in its present form, without adequate parliamentary scrutiny of the exercise of these Henrician powers, will be an equally damaging and embarrassing moment in our nation’s governance.
Will the Minister please reflect on these probing amendments and come back to this House on Report with something more fit for the role and responsibilities of this kingdom’s Parliament in the reign of Charles III?
Lord Collins of Highbury (Lab)
I will talk to our Amendments 42, 44 and 45; I also support Amendments 37 and 43. My noble friend Lord Prentis mentioned the debate we had on the reports from the Secondary Legislation Scrutiny Committee and the Delegated Powers Committee, Democracy Denied? and Government by Diktat. The two chairs of the committees at the time led the debate and reflected opinion across the House. The noble Lord, Lord Blencathra, said that this is a trend: these are not just technical statutory instruments but impinge on people’s fundamental freedoms. The noble Lord, Lord Hodgson, reminded us, and it has been repeated many times, that these are fundamental policy positions that can be debated and considered but not amended or revised. They cannot reflect all the things we have been talking about, particularly consultation.
Lord Callanan (Con)
My Lords, as I set out in the previous group, which the noble Lord, Lord Fox, described as the amuse-bouche grouping, there are already sufficient checks and balances built into the legislation before any regulations can be made. These include the need to carry out consultations with key stakeholders, including employers, employees, relevant trade unions and their members, who are all encouraged to participate in the consultations—we have some of the regulations out for consultation at the moment—and have their say in setting minimum service levels before they come into effect.
Parliament, including Select Committees, will also have an opportunity to contribute to the consultation and scrutinise the regulations. The Government firmly believe that this is the right approach. It ensures that a wide range of views can be gathered. Parliament can scrutinise regulations without significantly delaying the implementation of MSLs and therefore extending the disproportionate impact that strikes can have on the public.
Amendments 42 to 48 all seek to amend the provisions to make consequential amendments. The Government resist these amendments on the grounds that Clause 3 is a fairly standard clause, used regularly in primary legislation. Let me explain to the Committee what it is for. The power to amend primary legislation within the clause is a standard power with standard wording. Perhaps it will be helpful to give some examples of where it is on the statute book already. It is in Section 182 of the Health and Care Act 2022, Section 47 of the Corporate Insolvency and Governance Act 2020, Section 23 of the Bus Services Act 2017—I am sorry that the noble Baroness, Lady Randerson, is not here to hear that—and Section 66 of the Children and Social Work Act 2017. This power is not unique to legislation introduced under a Conservative Government. I say to the noble Lord, Lord Collins, that Section 51 of the Constitutional Reform and Governance Act 2010 also includes the same power. Additionally, the report, The Legislative Process: the Delegation of Powers, published by the Lords Select Committee on the Constitution in 2018, states:
“Delegating power to make provision for minor and technical matters is a necessary part of the legislative process … Delegated legislation, which is subject to less parliamentary scrutiny, should only be used to fill in the details.”
That is exactly what this power is intended for.
I remind noble Lords that the DPRRC did not draw attention to or raise concerns about this delegated power in its report published on 2 February. I know that it did on others, but it did not with this one. The power may be used only to make amendments to other legislation that are genuinely consequential on this Bill. It is there purely to ensure that the legal provisions within this Bill can be maintained after they have received Royal Assent. Therefore, the Committee will understand why I cannot support these amendments.
Amendment 48 seeks to remove the power for the Secretary of State to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd. The Government again resist this amendment on the grounds that the provisions of this Act will extend to England and Wales and Scotland. Employment rights and duties and industrial relations are reserved in respect of Scotland and Wales. Therefore, it is right that the Secretary of State has the power to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd, if required to ensure that the new legal framework operates in a coherent way across the entirety of Great Britain.
The disproportionate impacts that strikes can have are no less severe on people in Scotland or Wales than they are in England. They have every right to expect the Government to act to ensure that they can continue to access vital public services during strikes. The Government will of course engage with the devolved Administrations as appropriate. I have met devolved Ministers to discuss the Bill. Obviously, we will engage further if any consequential amendments are required to Acts of the Scottish Parliament or Welsh Assembly. As this clause is completely standard and has been introduced in several pieces of legislation, including by a previous Labour Government, I hope that noble Lords will feel able to withdraw or not move their unnecessary amendments.
Turning to Amendments 45 and 46, I believe that the intention of the noble Lord, Lord Collins, is to delay the commencement of regulations providing for minimum services until the Government have assessed the Bill’s impact on recruitment and retention in the public and private sectors, and the impact on those with protected characteristics. However, the amendments as drafted are to Clause 3, which provides a power to the Secretary of State to make consequential provision. Therefore, the amendments would delay commencement of regulations which make consequential amendments to other legislation.
Speaking to what I believe is the intended purpose of the amendment, I say that the Government resist it. As I have already set out in my response to the noble Lord, Lord Fox, the Secretary of State must consult on regulations, and they must be approved by both Houses before they can be made.
Impact assessments will be published for all subsequent regulations on minimum service levels and will, as always, contain a public sector equality duty assessment. I also draw noble Lords’ attention to the already published impact assessments for the Bill and currently ongoing consultations on establishing minimum service levels in ambulance, fire and rescue, and rail services, all of which contain public sector equality duty assessments. I hope that I have convinced noble Lords to withdraw and not move their amendments.
Lord Fox (LD)
I thank noble Lords for their contributions to the debate on this group. I am particularly grateful to the right reverend Prelate the Bishop of Leeds for painting a picture of King Henry VIII strutting across the Field of the Cloth of Gold on a pair of stilts.
Lord Fox (LD)
What an awful mistake to have made—I am very sorry and correct the right reverend Prelate’s territory. This is a serious group of amendments. The fact that it comes at the end of a day, and a long week, should not detract from that seriousness.
Listening to the Minister’s response, I was struck by the tone, which is: “This is a perfectly reasonable process. We are having a consultation and doing this and that. These people can contribute, and Parliament can contribute through the consultation”. It is for Parliament to make these decisions—not for the Government to do so, allowing Parliament to feed a little into the process.
The Minister has proposed the particular frame that we see in Clause 3 too many times. He went through a short list of Bills. I am aware of two of those, having participated in them, and I spoke against that power on both occasions. None of those is seven pages long and devoid of the detail required, but that is what the Bill is.
Baroness Chakrabarti (Lab)
Surely all these other Bills consist of a bit more than two delegated powers. That is what this Bill is.
I am beginning to feel sorry for Henry VIII. He was born a King and born to rule. I am thinking more of Julius Caesar, who was supposed to be part of a republic and led to its demise so that it became an empire. How did he begin that process? It was by diktat, by becoming a dictator. Powers such as this pave the way for that.
Lord Fox (LD)
I thank the noble Baroness, who has now introduced history; having failed geography, I will not enter into the history debate. She is completely correct: these powers are being taken for a Bill that is nothing. For the Minister to use the examples he did was completely inappropriate: they are different Bills of a different nature and scale.
We look forward to the Minister’s official response. I think he promised a letter on the DPRRC. I will study Hansard carefully on this. As the noble Lord, Lord Collins, put it, we will be doubly resolved that this issue cannot be left in Committee. We will certainly come back, unless the Minister’s letter turns out to be better than I normally expect. That said, as usual, I beg leave to withdraw.
Lord Hogan-Howe
“Review: extending restrictions to other services
(1) Within the period of one year beginning with the day on which this Act is passed, the Secretary of State must review the extent to which this Act has achieved its objectives.(2) The review must consider whether it would be expedient to enact further legislation applying the restrictions provided for under the Schedule to other services, in particular, services that support police services, including forensic investigation services and telephone call handling services.(3) On completing the review, the Secretary of State must lay a report before Parliament.”
Lord Hogan-Howe (CB)
Amendment 48A is tabled in my name and that of the noble Lord, Lord Greenhalgh. I am conscious that it is the last amendment, and I will be brief. I mean it; I do not intend to take too long. I know this has been a big political debate, as has been demonstrated today. My reason for this amendment is not to do with whether the Bill should be here or whether there should be a minimum standard; it is to do with who should be on the list if the Bill becomes an Act.
The reason why I became interested this is twofold. First, in the list of services that are to be included we have ambulance and fire, but the police are excluded, and clearly they are one of the three emergency services, so I was intrigued by that; it seems odd. Secondly, that has been compounded to some extent by the Home Office’s response, for which I will say thank you in a second. I do not think it appreciates the fact that the civilianisation, which is what it is termed, of the police over the past probably 20 years has been a really good thing. It has taken cops out of doing things that they do not need to do and has put people who have better skills in to do them. We have moved from a situation where probably 90% or so of the police were police officers, to a stage now where probably nationally about two-thirds are cops and one-third are “police staff”, which is the term now used for civilianisation. Those people have some incredible skills and are part of the delivery of front-line service. They are not merely, important though it is, support. They are part of the front line.
I am grateful to the noble Lord, Lord Callanan, who is no longer in his place, for referring my queries in two places to the Home Office, and I am also grateful for the response to my query from the noble Lord, Lord Sharpe, which I received yesterday. Even though I received it yesterday, I have not withdrawn my amendment from the Marshalled List as I do not think it really addressed my concerns. I raised two particular groups of police staff whom I thought were representative of the front line, but they are not the only two I could have raised. One was call handlers and the other was forensic scientists and forensic specialists, because I thought they were the easiest to sketch out quickly, but I want to touch briefly on some of the groups I could have mentioned.
The letter I received talked about call handlers only, and I was not persuaded by it for this reason. Of the Metropolitan Police, which has around 50,000 people even now, around 1,500 of them—probably nearer to 2,000—are call handlers. You could argue that that is only 4% of 50,000, but when the Home Office responded on how we can rely on the call handling still happening if police staff withdraw their labour, it assumed that police officers were going to backfill. There are problems with that assumption. First, 1,500 is quite a large number, and it is 1,500 not of the 50,000 but 1,500 front-line police officers. There are probably around 17,000 of them, so we are down to find about 10%. My concern is not just the fact that you would have to take them off the front line to backfill for call handling; you have to train them. They do not have the skills. They cannot do what I used to do, which was merely use the radio, answer the phone and make a written note. You now have to use a computer to work the radio; you have to use a computer to record all the data. There are an awful lot of things you have to be able to do before you can work in a control room. It is not as simple as going there and working. You cannot train someone in one year and then for five years, say, they do not do anything but they just turn up on a Monday and do it.
Secondly, we are talking about a very significant number of calls. Annually in England and Wales there are more than 20 million telephone calls with people in life-threatening situations or, at the other extreme, things that may not be life-threatening—but you do not know until you answer the phone which it is. It is essential that phones are answered and, frankly, it is the main way that people in this country still access police services. I know that there are more online options but, for an emergency, you are going to ring. That call has to be answered, which is why I majored on it.
In forensics, the number of these people is smaller but very significant. There are probably three levels of service provider: the people who go to the scene of the crime and collect the evidence at the scene; the people who work in the lab; and the specialists who try to interpret the results of the first two. They have substantial skills and are very well qualified, and there is now a forensic-accredited regulator. It is impossible for cops to go in and do that job. At the moment, I do not know the exact number of them—the Home Office might possibly mention this in the reply—but I suspect that 98% to 99% of people in forensics are police staff, quite properly. This means that it does not have the skills and it does not have the numbers, and so really is struggling. You could argue that, for a few days, this may not matter too much, but it matters for those low-volume serious crimes, such as murder and terrorism—I will not go through the list as noble Lords will know what is on it. It seems to me pretty important that forensics is still carried out.
The third group, which I did not mention the first time, is surveillance people. It used to be that police officers were the only people who did surveillance, but that is not the case now. Many forces in the country have police staff who are part of the surveillance teams. The argument goes that, if you do not need to arrest someone, why do you need police powers? That is quite right. If you have good observation skills, and are good at noting detail and at blending into the background, that is even more reason why you do not necessarily need to be a police officer. However, it is a big issue because the surveillance teams are employed only on serious crimes—they are not employed for minor crime; they will be used only for serious crime because it drags in so many resources. Without going into numbers, you are talking about significant numbers to get a surveillance team on the ground. It is important that that is still possible.
The final area is one that we do not talk about much in public but one to keep in mind. When you are dealing with serious crime, from terrorism to murder to other serious crimes, one technique involved is listening to telephone calls—surveillance and intercepting. If there is a threat to life, that will be within 24 hours, and probably seven hours a day. Someone has to do it, and it is now members of police staff will carry that out; there is no need to be a police officer.
I mentioned those series of examples, but the response from the Home Office talked only about call handlers. For the reasons I have set out, the response did not fully reassure me.
Noble Lords might be grateful to know that this is my final point. I mentioned in the Cross-Bench meeting my worries about the coastguard service, and the noble Lord, Lord Callanan, faithfully reported that back to the Home Office. People who do not live on the coast often forget that the only way you can co-ordinate the rescue of people at sea by people who are on land, in the air or on the water is through the coastguard. It has the facilities to communicate and map out where people are. It is no good talking to a police control room; it does not understand how things move around on the sea.
The coastguard service is vital, every day. It co-ordinates the lifeboat charity, the outsourced helicopter service, the police, ambulance service and fire service—we all know the people who get involved—and the coastguard who patrol at that point. If the coastguard is not there, I am not sure who the fallback is. It may be that there is a military option but the military has been pared back so significantly that it does not have coast-wide coverage for this reason. It may have coast-wide coverage for defence but I am not sure it has it for rescuing people and for the co-ordination of all the services involved.
I think it is worth considering these people when we talk about life-saving options and emergency services. There was a choice of two services other than the police, but I say that the coastguard service should be considered seriously. As I said, I was not reassured entirely by the Home Office’s reply.
Lord Greenhalgh (Con)
My Lords, I support the noble Lord, Lord Hogan-Howe. As the deputy mayor for policing and crime alongside him when he was a very distinguished commissioner, I always defer to his operational understanding. This is someone who led a very large service and understands the constraints that would occur if we saw a withdrawal of labour from these very specialist police staff who do more than just support police officers on the front line.
I draw attention to the fact that there is a real inconsistency here. As a former Fire Minister I am delighted to see that fire is included when it comes to call handling, and as the son of a surgeon I am delighted to see that the London Ambulance Service and other ambulance services are included in the Bill. Let us take London call volumes as an example, to give a sense of the order of magnitude. The Met answers 13,000 calls a day, which is nearly 5 million calls a year. The London Ambulance Service answers just over 2 million calls a year, while for the fire service it is probably nearer to 150,000 calls a year. We need parity when it comes to our three blue-light services, particularly because, as the noble Lord, Lord Hogan-Howe, put it, some of these calls are about wheels moving fast to save lives, even if they do not always know that is the case. I just do not understand not having the same approach to all three blue lights.
The noble Lord also raised forensics. The clear-up rate is about 95%—I hope that is still true—for murders in our capital city. That is largely down to a team effort that includes the use of forensics, and we have just heard about the importance of surveillance in tackling crime.
I think that even at this late stage we should consider the police service within those public services where we require a look at minimum service levels. It makes intellectual sense, and I know that at this stage we could introduce these amendments. Based on the response from the Home Office, we will see whether we bring this back on Report in the right part of the Bill—we were a bit late tabling the amendment, for various reasons.
It makes sense to have parity between the three blue lights. That is why I support the noble Lord, Lord Hogan-Howe. As deputy mayor, I always knew to defer to his operational excellence.
Lord Fox (LD)
My Lords, we are not particularly in the business of adding people to this Bill. If the noble Lords had attended all our sessions, they would have heard that we are not terribly appreciative of the Bill’s objectives, nor the way in which it goes about them. But I am grateful to the noble Lords for highlighting, as we pointed out earlier, the curious selection of services. We particularly questioned the decommissioning of nuclear installations, for example, where voluntary agreements already exist on a pretty comprehensive scale, so why is this in there?
I am also grateful that they have attracted a Home Office Minister here to answer the question. My question for him is: how much consultation was held with the Home Office by what was then BEIS, which drew up the Bill, about choosing who was on this list, and indeed who was not, when it came to drafting the legislation? That would be an interesting point.
I could not resist pitching in on forensic services. As the noble Lord, Lord Hogan-Howe, knows, since the change in the whole service, essentially its privatisation, a large lump of that service went into the police force—I was going to say it was “captured”, and that is not supposed to be in a pejorative sense. In the Metropolitan Police, a huge proportion of what was often delivered externally to the police force is now being delivered internally; I think it is around 80% in the case of the Met. That leaves 20% of the service coming from private sector providers and what I call specialist suppliers, which are often academics or people who have set up organisations. I suggest that it is much harder to make those two types of supplier fall within the remit of what the noble Lord envisions, given the debate we have had about involving private sector suppliers in the health service or transport. That debate has clouded how this would operate. Still, a large proportion of the forensic service is within the police ambit when it comes to management.
With those notes, the key issue is to ask the Home Office why fire and rescue is in but the police are not. What consultation process did that go through, and how did the decision come about? We would be interested to see inside the box.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, I get the impression that the noble Lord, Lord Hogan-Howe, did not necessarily want to associate himself with the whole Bill, but was asking questions about who was included and excluded and why.
From our Labour perspective, one of the key worries about the Bill has been: are we going to see executive powers taken to add in sectors at different stages without proper scrutiny, proper accountability or consultation? Many see this as an attempt to ban strikes, a fundamental human freedom, through the back door. It might get to the stage where it would be easier to have a list of sectors not covered as opposed to those that are.
We oppose this amendment; fundamentally, because it fails to address the root causes of the problems people face. I hesitate to advise the noble Lord, who knows far more about this than I do, but since 2010 we have seen police funding cut by £1 billion. We have seen huge cuts to police officer numbers of 20,000 and a similar number of support staff being cut. In the Casey report, it was pointed out that those cuts in support staff were having a direct impact on police officers, who were having to cover that work too and that impacts the effectiveness of the service.
It seems to me that these are far bigger issues at a time when so many staff in the police service and elsewhere are facing real-terms pay cuts year after year, which have a real impact on morale, recruitment, retention and our ability to deliver the high-quality service that we all want to see. My sense is that it would be much better to focus on tackling the root causes of concern and discontent rather than suppressing the symptoms.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
I thank all noble Lords for their contributions to the debate and in particular my noble friend Lord Greenhalgh and the noble Lord, Lord Hogan-Howe, for their amendment.
This amendment seeks to require the Government to undertake a review into whether and to what extent the legislation has met its objectives and whether the legislation should be extended to additional services, particularly police support services. On completion of the review, the report would be laid in Parliament. The Government are committed to reviewing the impact of the Bill within five years of when the first secondary legislation comes into force. Given that the detail of minimum service levels will be set out in the regulations that follow the Bill, this is an appropriate approach and timeframe.
On the specific point about extending the Bill to additional services, it is worth repeating that the key sectors covered by the Bill are broadly the same set of services that were listed as important public services in the Trade Union Act 2016, which have long been recognised as being important for society to function effectively. The 2016 Act did not include policing, in part because the prohibition on police officers taking strike action meant that this was not felt necessary.
Police staff across the country make an exceptional contribution to policing and we are grateful for the professionalism and dedication they show in their work. Police staff, including police community support officers and other members of the police workforce who do not have warranted powers, have no restrictions on their right to take industrial action and there are no provisions currently in place to provide minimum service levels. However, chief constables have a statutory duty under the Civil Contingencies Act to ensure that plans are in place to maintain key services when instances such as a strike occur. When police staff have taken strike action in the past, police forces have put in place plans to ensure resilience among their police officer workforce to ensure that essential front-line services are maintained.
Baroness O'Grady of Upper Holloway (Lab)
Similar responsibilities apply in the fire service, in respect of the Civil Contingencies Act, so why is it necessary to include fire services in the Bill?
Lord Murray of Blidworth (Con)
The context for the police is clearly different from that for the fire service, in that the vast bulk of police officers, as described by the noble Lord, Lord Hogan-Howe, are covered by the provisions of the earlier legislation precluding them from striking. As we discussed, this puts them and the force in a different category.
Contingency plans are largely based on the redeployment of police officers to cover operational staff roles. Police officers are of course prohibited from participating in strike action and, therefore, chief constables are able to meet any such obligations under the Civil Contingencies Act. I hope that goes some way to address the points raised by the noble Lord, Lord Hogan-Howe. The Government currently have no intention to add to the sectors covered by the Bill, and any future amendments would require separate primary legislation.
Lord Hogan-Howe (CB)
The Minister’s point—that arrangements are being put in place for police officers to backfill—is fair, but there are two problems: if you have fewer and fewer cops who can be in the control room all the time, you have to keep them trained, and then you have to withdraw them from the street, which is a significant diminution. First, if you have to train them every year, that costs money and takes time—and then you presumably have to withdraw them when there is some kind of action. For me, it is not a reassuring answer to say that police officers can just backfill, because I am afraid that they cannot without training or experience in this vital part of the service.
Lord Murray of Blidworth (Con)
The contingency plans are of course already enabled in the Civil Contingencies Act and, although this situation would be less preferable than the one that prevails in a non-strike scenario, it would be successful in the Government’s view. Furthermore, in the event that police staff take strike action, or when they have taken strike action in the past, police forces will or have put in place plans to ensure resilience among their police officer workforce, to ensure that essential front-line services are maintained. However, as noble Lords would expect, we will keep under review the sectors that we are discussing in this debate, and will not hesitate to take further action if we judge that necessary.
I will briefly address some of the specific points raised by noble Lords. Clearly, from the Government’s perspective, we accept that the points raised by the noble Lord address a broader class of people—of police auxiliaries, if I might style them like that—than just those in call handling. Of course, he made a good point that this goes across the piece; the vital work done by broader police staff is something we should consider.
The noble Lord raised points in relation to His Majesty’s Coastguard. I confirm that the Department for Transport is still considering which other sectors minimum service levels may apply to. Therefore, the position on applying MSLs to coastguard services will be kept under review, and any decision regarding these services will of course be subject to consultation. Similarly, my noble friend Lord Greenhalgh made some powerful points about the importance of auxiliary staff in this context, and I take those very much on board.
As to the points raised by the noble Lord, Lord Fox, I can confirm that there was consultation with other government departments prior to the selection of the list described in the Bill.
Turning to the points made by the noble Baroness, Lady O’Grady, this is clearly not an attempt to ban strikes. The key sectors covered in the Bill are broadly the same set of services as those listed in the Trade Union Act 2016, which have long been recognised as being important for society to function effectively. Strike action in these sectors has the potential for far-reaching consequences for members of the public who are not in any way involved in the dispute, and it is only right that these sectors are included within the scope of the legislation.
For all those reasons I invite the noble Lord to withdraw the amendment.
Lord Hogan-Howe (CB)
I am grateful for the Minister’s reply and for the contribution of other noble Lords. I was not sure whether the Minister said that the Home Office or other departments had been consulted, but I will let that rest. I am grateful for the consideration and take his point that there will be further review in due course, be it the police or the coastguard. I am content to withdraw the amendment.
Strikes (Minimum Service Levels) Bill
Wednesday 26th April 2023
(1 year ago)
Lords ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL 97-R-I Marshalled list for Report - (24 Apr 2023)
16:19 - Division on Amendment 1 - Ayes: 221 / Noes: 197 - Amendment 1 agreed.
17:24 - Division on Amendment 4 - Ayes: 232 / Noes: 201 - Amendment 4 agreed.
17:37 - Division on Amendment 5 - Ayes: 220 / Noes: 196 - Amendment 5 agreed.
18:10 - Division on Amendment 7 - Ayes: 213 / Noes: 184 - Amendment 7 agreed.
Lord Fox
“(5) The powers conferred by this section must not be exercised unless a consultation on the potential impact of their use has been carried out, published, and reviewed by a committee of each House of Parliament whose remit includes either the wider UK workforce and industrial relations, or the sector to which the regulations in question relate.(6) Such consultations must—(a) be carried out by the Secretary of State and involve representatives of any relevant unions, employers and other interested parties,(b) include an assessment of the potential impact of the minimum service regulations on the rights of workers to strike, the effectiveness of the relevant services, and the impact on the wider public,(c) consider services in all categories listed in subsection (4), and(d) include reference to respective service levels outside of strike action.(7) The results of the consultation and the reviews by committees must be published in a report, and the Secretary of State must lay a copy of the report before Parliament.”Member’s explanatory statement
This amendment would require a consultation to be carried out and reviewed before the powers in section 234B can be used.
Lord Fox (LD)
My Lords, I welcome the Minister to his chair.
Amendment 1 is in my name and that of the noble Lord, Lord Collins. This amendment is agnostic about what is thought about the legislation’s purpose; you might support its intentions or you might reject them, and there are groups coming up after this one that will give your Lordships a chance to have that debate. This amendment revolves around what you think of Parliament and its role in making important laws that affect people in a big way. I will explain that briefly.
The central focus of the Bill is to establish legally binding minimum service levels for a range of services, some of which are delivered via the state and some of which are delivered via private companies. You will hear arguments later about how this is designed to work, but suffice to say the key element of the Bill is what constitutes a minimum service level that should be expected during a strike. The nature and quantum of this is critical to determining how many workers are effectively compelled to go to work on a strike day. The service levels are critical, and yet Parliament is effectively sidelined in the process of their development.
In the Commons, that celebrated supporter of the labour movement, Jacob Rees-Mogg, called the Bill “badly written” and an
“extreme example of bad practice”.
He criticised the lack of detail and said that it should instead
“set out clearly what it is trying to achieve”.
He added:
“This Bill is almost so skeletal that we wonder if bits of the bones were stolen away by wild animals and taken and buried somewhere”.—[Official Report, Commons, 30/1/23; cols. 89-92.]
Your Lordships will have seen the less colourful response from the Delegated Powers and Regulatory Reform Committee, which makes a similar plea for more detail in this primary legislation.
Despite this being a Bill that deals with minimum service levels during strikes—that is what it says on the cover—there is nothing in it to say what those minimum service levels are, or indeed the nature of what a minimum service level is. That is left to the Secretary of State. The vital details will follow the enactment of the Bill, when the Secretary of State makes regulations. The DPRRC describes this as “small comfort to Parliament”. The Government say that the detail required to set the level of service for each relevant service is not appropriate for primary legislation. However, the DPRRC notes that
“the Memorandum does not explain why setting out any detail on the face of the Bill would be inappropriate. Parliament”—
as we know—
“is not allergic to matters of detail, particularly where it relates to an important matter such as the right to strike”.
Instead, the process of adding flesh to this skeleton is left to as yet unspecified regulation. The additional irritant to the scrutiny of the Bill has been the absence of a coherent or comprehensive impact assessment.
This amendment seeks to bolster Parliament’s oversight. It would require a consultation to be carried out and reviewed before the powers in new Section 234B for the Secretary of State to specify minimum service levels can be used. The amendment would insert three new conditions. First, proposed new subsection (5) would mandate proper consultation on the potential impact of the use of minimum service levels to be carried out, published and reviewed by a committee of each House of Parliament. Next, proposed new subsection (6) would ensure that the consultation includes all those involved; covers the potential impact of the minimum service regulations on the rights of workers to strike and the effectiveness of relevant services, and the impact on the wider public; and takes into consideration service levels outside of strike days. Finally, the amendment would insert new subsection (7), which would ensure that the results of the consultation and the reviews by the committees are published in a report, and that the Secretary of State lays a copy of it before Parliament. The Minister will say that extensive consultation is under way, but it is non-binding and bypasses Parliament.
In conclusion, this is a modest amendment that in no way impedes the purpose of the Bill. It is about democratic process—something your Lordships have often had to defend. Amendment 1 seeks to bring Parliament back into this process at the expense of undemocratic executive action. I beg to move.
Baroness Meacher (CB)
My Lords, very briefly, I support this amendment. It seems to me that we have seen Bill after Bill in which this Government have chosen to bypass Parliament and leave too many decisions to Secretaries of State. Therefore, for me, as a former member of the Delegated Powers and Regulatory Reform Committee, the most important aspect of this amendment is the requirement, following consultation, to present these matters to committees of both Houses of Parliament. I do not want to say any more; the case has been made very clearly. However, I would like it noted that I support this amendment very strongly.
Lord Collins of Highbury (Lab)
My Lords, I too will be brief in strongly supporting this amendment. Whatever your Lordships’ views about the state of industrial relations in this country, we should all agree, across this House, that a rushed process which puts power over making laws into the hands of Ministers without proper parliamentary scrutiny and oversight is simply not right. I appeal to all Members of the House to support Amendment 1.
As the noble Lord, Lord Blencathra, said in the debate on his committee’s report,
“when laws are passed without proper parliamentary scrutiny, they cease to be just technical, as they threaten the rights and freedoms of the individual”.—[Official Report, 12/1/23; col. 1532.]
That is absolutely true when it comes to this Bill. There is no clear understanding of the form that minimum service levels are likely to take or of the impact on workplace relations and services to the public.
I draw noble Lords’ attention to the excellent briefing from NHS Providers, which is responsible for managing the NHS and 1.4 million staff. It says that the Bill
“risks damaging relationships in the NHS between trust leaders and their staff, and between trust leaders and local union representatives at a particularly fraught time, without addressing any of the issues underlying current strike action or providing a useful alternative approach to managing service provision during periods of strike”.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, I apologise for keeping the House waiting for the start of the debate; the previous business finished much earlier than everyone expected.
I am grateful to those who have contributed to this debate, although clearly we have repeated a lot of what was discussed in previous debates. The House will be unsurprised to hear that my position is similar to what it was in Committee. As I did then, I resist this amendment relating to consultation requirements, parliamentary scrutiny and assessment of impacts of the legislation.
As I made clear in Committee, it is my firm view that sufficient checks and balances are already built into the legislation before regulations can be made. This includes the need to carry out consultations—indeed, we are undergoing consultations at the moment on some draft regulations—which, of course, relevant parliamentary committees are able to and almost certainly will contribute to, as well as the requirement that regulations must be approved by both Houses before they can be made. Impact assessments will also be published for all subsequent regulations on minimum service levels.
Key stakeholders, including employers, employees, members of the public, trade unions and their members are all encouraged to participate in the consultations—some of which, as I said, are live even now—and have their say in the setting of the appropriate minimum service levels, and all that will happen before the minimum service levels come into effect, and only then if they have been approved by Parliament.
I am therefore of the view that this approach is both appropriate and in line with the normal way in which secondary legislation is made. As such, the Government believe that the amendment adds unnecessary duplication into the process, and therefore I hope that the noble Lord will feel able to withdraw his amendment.
Lord Fox (LD)
My Lords, I thank both noble Lords for their support for this amendment. The Minister is right that much of this debate has been had before in Committee. He is also right when he describes this as the normal way. I am afraid it has become the normal way that this Government operate to shunt as much power as possible to the Secretary of State and marginalise Parliament as often and as broadly as they can. This is a highly skeletal Bill—it is almost impossible to get one that is smaller. For that reason, I would like to test the will of the House.
Lord Callanan
“(a) whether the person is or is not a member of a trade union,(b) whether the person has or has not—(i) taken part in the activities of a trade union, or(ii) made use of services made available to the person by a trade union by virtue of the person’s membership of the union, or(c) whether or not—(i) a matter has been raised on the person’s behalf (with or without the person’s consent), or(ii) the person has consented to the raising of a matter on the person’s behalf,by a trade union of which the person is a member.(6A) In subsection (6) “a trade union” includes—(a) a particular trade union, and(b) a particular branch or section of a particular trade union.”Member’s explanatory statement
This amendment provides for additional matters that an employer must not have regard to in deciding whether to identify a person in a work notice.
Lord Callanan (Con)
My Lords, I beg to move Amendment 2 in my name. The House will know that the Government were clear at the introduction of the Bill that employers must not have regard to a person’s trade union status when producing a work notice. Employers should identify the workers who are best placed and most appropriate for each role, so that that minimum service level can be achieved. In our view, a person’s trade union status has no place in this process.
I thank the Joint Committee on Human Rights for its report on the Bill and for its feedback, as well as feedback from the debates in Committee on protections from trade union discrimination in relation to work notices—including from the noble Lord, Lord Hendy, who was particularly vocal on this point. I hope the noble Lord will agree that this amendment addresses his concerns in full.
Through this amendment, employers must not have regard to whether a person has or has not taken part in trade union activities, made use of their services or had issues raised by a trade union on their behalf. Employers must also not have regard to whether a person is part of a particular trade union or a particular branch or section of a trade union. This also ensures a greater level of consistency with existing sections within the Trade Union and Labour Relations (Consolidation) Act 1992, such as Sections 146 and 152.
As I said in Committee, the activity or services that a trade union member may have been involved in are connected to whether they are a trade union member, and therefore, even under the clause as it stood, an employer must not have regard to such matters when producing a work notice. While I still believe this to be true, I hope that the amendment provides further reassurance to the House, in addition to trade unions and workers, putting the issue of trade union discrimination in relation to work notices beyond doubt. I beg to move.
Lord Fox (LD)
My Lords, very briefly, it is appreciated that the Minister has done this and that the Government have understood that there was ambiguity. In a sense, it is a shame that the Minister has not taken all our advice, but we thank the Government for taking this particular piece.
Lord Hendy (Lab)
My Lords, it would be churlish not to acknowledge that we appreciate what this amendment will do.
Lord Callanan (Con)
My Lords, noble Lords have broadly welcomed this and clearly want to move on to another section, so I do not think I have any points to raise in response.
Lord Thomas of Cwmgiedd
“234CA Work notices: further provision(1) In the event that the Secretary of State makes minimum service regulations under section 234B—(a) no obligation is imposed on any employer to give a work notice under section 234C;(b) no person may direct any employer to give a work notice under section 234C.(2) If an employer determines that they will not give a work notice under section 234C—(a) no liability whatsoever shall attach to the employer or to any other person in respect of that decision;(b) no proceedings may be brought in any court in respect of that decision.”Member’s explanatory statement
This new clause is intended to make clear that the decision to issue a work notice is entirely within the employer’s discretion. The employer is therefore under no obligation to give a work notice and, if the employer determines that they will not give a work notice, the employer is under no liability to anyone and the decision cannot be challenged in court.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will move an amendment on a very short point and I am grateful for the support of the noble Lord, Lord Allan of Hallam. The schedule to the Bill sets out the procedure for giving a work notice and the Explanatory Notes say that it is intended to show
“how work notices are to operate”.
Subsection (7), for example, requires consultation with the unions. However, the critical point which emerged in Committee was the nature of the obligation on an employer to give a notice. Did the employer have to issue a notice? Was it entirely voluntary or was there something subtle in the middle? It all turns on the meaning of “may”—a good point for a lawyer possibly to take.
It is accepted that “may” does not mean “must”, although sometimes courts interpret “may” as meaning “must”. The question arose as to whether it meant that an employer was free to decide voluntarily what to do, given the impact it might have on his relations with the staff, or whether the position was more complex. I drafted Amendment 3 to make it clear that it was to be entirely voluntarily and sent it to His Majesty’s Government. Their response on “may” was clear. The Government’s letter said:
“The Bill does not place any direct obligation on an employer to issue a work notice. Rather, it gives employers a statutory discretion whether … to do so. This is right given that they are closer to the day-to-day operation of their services”.
It went on to explain the complexity, saying that
“where an employer is a public authority, they will need to consider their overarching public law duties. Employers will also need to consider if they have any contractual or other legal obligations that they need to comply with”.
There is no point in debating whether His Majesty’s Government are right in the interpretation of “may”; that must be for the courts to decide. But let us assume they are. There are a number of consequences. First, there is a process to be gone through by the employer—although it is not in the Bill, despite what the Explanatory Notes say. Secondly, if an employer has contractual obligations, it will have to examine what those are. If an employer is a public body, it would have to consider its public law duties, spelled out in legislation and government directions. As regards public law, it would no doubt be prudent to consult the relevant Government.
The employer would then have to weigh up the damage the notice might cause to staff relations and the provision of services in the future. There might be other considerations. It will be a difficult decision for employers in England and they might be pressurised, either by an injunction or a judicial review. We must emphasise that the courts are now likely to come into this.
In Wales and Scotland—assuming the Bill applies to them—there would be a further layer of uncertainty because they would be subject to Welsh and Scottish primary legislation and the views of their Governments. How could it be expected that public bodies in those two nations and devolved areas should be responsible for working out what their duties were?
I had hoped for one of two things: either the Government would accept my amendment—but it is plain they will not—or they would set out the considerations and put them into the statute. But they have not done that either.
I will therefore move this amendment, but I do not intend to seek the opinion of the House for two reasons. First, if His Majesty’s Government are right on the meaning of “may”, there really are contentious points of law for the courts in defining the employer’s obligations in the different contexts of hospitals, teachers and railways. This is most unfortunate. Secondly, the Bill should be clear and spell out the decision in the way the Explanatory Notes said it should be done but, as I said in Committee, this Bill is the epitome of legislation first, policy second—a total reversal of the proper policy. I beg to move.
Lord Allan of Hallam (LD)
My Lords, I support the amendment in the name of the noble and learned Lord, Lord Thomas, to which I have added my name. A benefit of the Committee stage in this House is that it allows us to identify concerns that may not have been apparent when a Bill was first introduced. It is through that process of analysing how legislation will work in practice, informed by the experiences that noble Lords bring to this place, that we can flush out those unintended consequences. On a good day, the House having flagged something that is a reasonable area of concern, the Government will provide us with clarifications that show that our fears are misplaced and that all will be well. On a really good day, a Minister will acknowledge that we have identified a genuine problem and set out a path to fix it. We have just had an example of that on the previous amendment.
I believe we have done our job and identified a real gap here between the Government’s rhetoric that employers will not be mandated to issue work notices and what may happen in practice, yet the Government have so far failed to provide either a clarification that our concerns are unfounded or an acknowledgement that we have identified a real issue that they intend to fix before the Bill becomes law. In this amendment we are presenting a way to demonstrate the kind of fix that we think is needed, not to undermine the Government’s intentions in respect of the legislation writ large, but rather to ensure that it works as they themselves have said they wish to happen.
My concern is quite specific. It is that employers will be advised that they expose themselves to significant legal risk if they do not issue work notices, even where they feel that they would be counterproductive to their efforts to negotiate with their employees. The circumstances under which they may feel this compulsion are not fantastical but all too apparent if we look at broader trends in litigation. We do not have to stretch our imagination too far to see somebody suing an NHS body that chose not to issue work orders, alleging that their treatment could have been delivered if it had; a student taking action against an educational institution on the basis that it did not order teaching staff to turn up during strike days; or businesses suffering disruption as a result of transport strikes going after train operators, claiming that more service could have been provided.
Some noble Lords may have sympathy with this approach and think, “Good; if employers feel compelled to issue work orders, the Bill is working”, but the Government have said repeatedly that the work order should be voluntary and that this is not what they intend. If they wish to make work orders compulsory, they should have the honesty to say that in the Bill. They would be de facto mandated because of the threat of litigation, and if the Government do not wish that to happen, they should agree to our amendment to make that clear to employers.
It seems far from ideal to leave this confused, with the extent of compulsion in practice decided on the basis of an assessment of the threat of legal action. I fear that the Government will argue, as the noble and learned Lord, Lord Thomas, has already indicated, that this is an acceptable state of affairs and that they do not intend to change the legislation, but I hope that noble Lords will see the force of our arguments and will support Amendment 3.
Lord Balfe (Con)
My Lords, many people in this House will know that I have a firm belief that the best industrial relations are conducted by two parties that are trying to achieve objectives in common and are not clashing with each other. This amendment basically helps that to happen because it says that an employer will not be under an obligation to give a work notice if it does not want to. Surely the reason it would not want to is because it would worsen the industrial relations within the company or body concerned. That cannot possibly be a good objective to pursue.
Lord Callanan (Con)
My Lords, I thank the noble and learned Lord, Lord Thomas, for his constructive engagement on this matter. He wrote to us about it and has had a reply, so he knows the Government’s position. We believe that the current drafting of the legislation strikes the right balance so that, while employers have the statutory discretion to issue a work notice, they also have to consider any other existing legal duties that they may have—for instance, contractual, tort or public law duties. My concern is that the amendment would enable employers to act without due consideration to such duties, as it effectively seeks to remove any legal consequences for not issuing a work notice.
The decision to issue a work notice should be objective but, despite what the noble Lord, Lord Allan, and the noble and learned Lord, Lord Thomas, have said, the amendment would then enable subjective, and potentially political, factors to influence that decision.
It would be likely—and I suspect this is the intention of the movers—to lead to many fewer work notices being given where they were needed, leading to minimum service levels not being met in more cases, but the reason for this legislation is that the Government do not believe that is in the best interests of service users or the public. I therefore maintain the position that I took in Committee and resist the amendment on that basis. I hope the noble and learned Lord will withdraw it.
Lord Thomas of Cwmgiedd (CB)
It is disappointing that the Government will not put in the Bill what the position is. The word “may” is too ambiguous. I am afraid we may be back to the kind of thing that happened 50 years ago, as we are seeing a large number of disputes go to a successor—the ordinary courts, this time—to the National Industrial Relations Court, and that was not a happy outcome for anyone. But the Government have taken their stand. I do not wish to press this to a Division and I therefore beg leave to withdraw the amendment.
“234CA Protection of employees (1) A person is not subject to a work notice if the person in question has not received a copy of the work notice.(2) It is for the employer to prove that an individual received a work notice.(3) Failure to comply with a work notice is not to—(a) be regarded as a breach of the contract of employment of any person identified in the work notice, or(b) constitute lawful grounds for dismissal or any other detriment.(4) Having regard to subsection (3), failure to comply with a work notice is deemed to be—(a) a trade union activity undertaken at an appropriate time for the purposes of sections 146 (detriment on grounds related to union membership or activities) and 152 (dismissal of employee on grounds related to union membership or activities), and(b) participation in industrial action for the purposes of sections 238 (dismissals in connection with other industrial action) and 238A (participation in official industrial action).”Member’s explanatory statement
This amendment would prevent failure to comply with a work notice from being regarded as a breach of contract or constituting lawful grounds for dismissal or any other detriment.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, I will speak to the amendment in my name and the names of the right reverend Prelate the Bishop of London and the noble Lord, Lord Fox. This amendment would ensure that an individual employee named in a work notice cannot be sacked or sanctioned if they do not comply. In short, it would avoid the risk of a shameful and ultimately self-defeating spectacle of nurses and other key workers, whom not so long ago we all clapped, being sacked.
Employees are currently protected against unfair dismissal for the first 12 weeks of a lawful strike. In Committee, there were strong concerns around the Committee that this Bill, as currently drafted, unilaterally removes that protection from individual key workers named in a work notice who do not comply, and that this is not compatible with the UK’s obligations on human and labour rights. No other European country with minimum service levels gives employers the power to take away the livelihoods of workers in these circumstances —not one. This would make Britain an outlier in Europe and would constitute a gross infringement of an employee’s individual freedom.
The scope of the sectors covered by the Bill so far means that an estimated 6 million workers could see their employment contracts unilaterally changed in this fundamental way—and all by secondary legislation. Most of these workers are women. In sectors such as health and transport, as we have heard, they are disproportionately black and ethnic minorities. It would not matter that there has been a democratic vote, or that a union has successfully overcome the many draconian obstacles to mounting a lawful strike.
Every worker is vulnerable, because individual workers who have lawfully voted for strike action would be entered into a P45 lottery. If they are unlucky enough to be individually named on a work notice and disobey for reasons of sincerely held belief, they could be lawfully and instantly sacked. This Bill does not even require an employer to prove that they ensured that the worker concerned received a copy of the work notice. Instead, employers are given the power to effectively requisition individuals under threat of losing their livelihood. Most right-minded people find that disproportionate, dictatorial and fundamentally unfair.
Not so long ago, the Government agreed. When the railways minimum service levels Bill was announced in the Queen’s Speech in 2019, the Government promised that sanctions would not be directed at individual workers. This amendment seeks to redress the balance and address that injustice. It would ensure that the freedoms and livelihoods of individual workers are protected. It would prevent the creation of a P45 lottery. It would reassure many unions and employers, including NHS employers, which say that the threat to sack strikers, even before this Bill is enacted, is poisoning industrial relations and making difficult situations much worse.
After all, dismissing key workers would do absolutely nothing to tackle the blight of public service staff shortages and backlogs on the country. Since the Minister confirmed that employees named on work notices who call in sick on the day cannot be sacked, it would avoid the potential chaos of making emergency cover much more difficult to plan and deliver. At Second Reading, the Minister stated unequivocally that
“This legislation is not about sacking workers”.—[Official Report, 21/2/23; col. 1563.]
This amendment would ensure that the Minister’s commitment is met.
The Lord Bishop of Guildford
My Lords, I will speak in support of Amendment 4, to which my friend the right reverend Prelate the Bishop of London has signed her name. Bishop Sarah sends her apologies that she cannot be here, but we both strongly support the amendment, not least given reports that many important voices across the healthcare world, including the Royal College of Nursing and NHS Providers, are similarly supportive.
The basic principles and urgency of the Bill are understandable, given the events of the past months. At the same time, those events themselves reflect the very low levels of morale and trust across many of our essential services, and an overly robust approach at this point would only exacerbate the situation further— in effect, pouring fuel on the fire. The idea that the failure to comply with a work notice should be regarded as a breach of contract or grounds for dismissal, thereby removing existing protections for the employee under the 1992 Act, would seem to reflect that overly robust approach. Were this amendment to be passed, the relevant trade union would still hold some liability, ensuring that this would still remain a useful and functioning Bill.
My friend the right reverend Prelate is understandably concerned about this from a healthcare angle, particularly given her former role as the youngest ever Chief Nursing Officer. From that perspective, passing the Bill without this amendment would seriously damage the co-operation and good will required for successful local negotiations in the somewhat febrile atmosphere in which we find ourselves. NHS Providers points out that, were individuals to go on strike contrary to a work notice and then be fired, unions could, and most likely would, take other action, either through work to rule or calling in sick en masse. Both would undermine the Bill’s primary and laudable purpose to provide safe levels of care. So, if that purpose is at the heart of the Bill, supporting this amendment seems to me to be essential.
Lord Woodley (Lab)
My Lords, I will speak in support of Amendment 4, and I also support Amendment 5.
Amendment 4 covers the issue of protecting workers from being forced to cross their own picket lines under threat of the sack; it is a fundamental issue which strikes at the heart of trade unionism. The Bill, as it stands, gives bad bosses the power to target and victimise trade union activists by issuing work notices. Although I accept that minor concessions have been made, there are still no sanctions on bosses behaving badly, and we know, unfortunately, that some will do so, given the opportunity. The only way to protect workers fully is to make it absolutely clear that, if a striking worker refuses to cross a picket line during lawful industrial action, they will not lose their legal protections and will not be subject to dismissal. That is why the amendment is so important. Nobody should be forced to make the agonising choice between betraying their trade union principles of solidarity and standing together as workers and potentially losing their job.
Let us dispel the myth that this proposed law follows only what most of Europe already does—what absolute nonsense. This week, over 120 elected politicians from around the world, including from France, Germany, Italy and Spain, have called on our Government to abandon the Bill, pointing out that
“The UK already has some of the most draconian restrictions on trade unions anywhere in the democratic world … Despite this, the UK Government is set on further rolling back worker protections and freedoms”.
On Amendment 5, just as trade union members must be protected from being forced to act against their own interests during a legally organised dispute, so must the trade unions themselves.
This proposed law would, without a doubt, poison industrial relations and victimise workers and their unions. That is why I urge all noble Lords to support both amendments, and particularly Amendment 4.
Lord Sentamu (CB)
My Lords, why did trade unions come about? Because there were bosses who would pick off one person after another to undermine the workforce. This amendment says that it is worth protecting this principle. We will bring back chaos if the Bill allows an employer to say to an individual who has not been given a notice that they have breached their contract. Of course, collective bargaining, at the heart of it, means that the whole body tries to agree—and that is why the noble Lord said that the best resolution comes from people being together at a table and talking, and not from having this kind of legislation.
I support this and the following amendment for the simple reason that every worker has a right to a fair wage for a fair day’s work, and every worker has a right to withdraw their labour if they think matters are unfair. You cannot bring in legislation which simply gets people back to work because conversation or discussion has not happened.
We should think of why the trade unions were born, and not go back on that—noble Lords should support the amendment. I am sorry that the noble and learned Lord, Lord Thomas, did not press his amendment to a Division; I would have supported it, simply because it would have given clarity. The law at the moment is unclear—and we are going to be in trouble at some future time because he was too gentlemanly to press it.
Baroness Jones of Moulsecoomb (GP)
I support Amendments 4 and 5. The issue Amendment 4 addresses is a bit odd, as it creates a situation of servitude for key workers. That slightly puzzles me, because I am sure that the Minister clapped for nurses and the NHS during the lockdown and supported them then—so why not now? Perhaps he can explain that to me. It looks to me as if the Tories are taking a bad situation of their own creation and making it worse. This amendment is extremely important. I hope that the Minister, when he clapped for those nurses, realised just how important they were.
Lord Balfe (Con)
My Lords, this amendment really shows what a ludicrous Bill this is. The clause that we are dealing with is unworkable. As noble Lords know, I have to declare an interest as an executive honorary president of the British Airline Pilots’ Association. I have talked in this House before about the fact that this Bill allows the Minister for Transport, our good and noble friend Lady Vere, to identify a pilot and order him, a week before the plane takes off, to fly to Washington. That is ludicrous. If you live in the real world of aviation, you will know that a plane is not cleared for take-off until the pilot certifies that it should take off, something like two hours before it leaves. You have to consider weather and whether the level of staffing is correct—and then the pilot is the captain of the plane, responsible for ensuring that the alcohol levels of the staff are not breached. Unless you let people make a decision, you are just running yourself into trouble.
Aviation is about 70% unionised. Is the employer going to identify some people who are not in the union and tell them to go to work, rather than people who are in the union? You have the same group of people, and some of them are in and some are out. How are you going to decide that, and how will you decide matters such as illness? What happens if someone rings up and says, “I think I’ve got Covid”? Are you going to be able to withdraw their protection from unfair dismissal? Of course not.
This clause, above everything else, demonstrates the weakness and stupidity of the Bill. The idea of naming people in a work notice could come only from the desk of someone who has never had to do it, frankly.
I want to look at Amendment 5. The reason put forward in a note to me for the proposal in the Bill was that the minimum service levels would be far less likely to be achieved as trade unions may attempt to persuade workers not to comply with work notices. That is fairyland. Trade unions spend more of their time and money on our friend the noble Lord, Lord Hendy, and his colleagues in the law than is probably sensible. At every stage, they look at the law and say, “We must not break it”.
In my experience, the executive of a trade union, and particularly the local branches, will spend more time persuading the hotheads not to do stupid things than they will encouraging them to do so. It is, for instance, a regular occurrence that a number of British Airways staff believe that they can take actions that are clearly in contravention of the law. It is the job of the executive to say to them, “You will damage the union”; it is not the job of the executive—it never has been—to say, “Behind the scenes, do you think you could do this?” That is not the way that trade unionism works.
I say that as someone who has been involved in trade unionism, for my sins, for over 60 years. It is 60 years since I first became a branch official. Throughout a lifetime of serving in different trade union branches, executives, and now as president of a TUC union, I have always been impressed with how the workers we represented wanted to get it right. They have often had very good reasons for feeling annoyed with the employers, but the job of the union, as a structure, has been to canalise the dispute in such a way that it is within the law and is a compliant dispute that attempts to achieve the objectives that the workforce is looking for. One reason we have trade unions in this country is to provide a bit of balance.
The Bill is not even sensible. It will not work. I hope that, when it goes down the corridor, our new Prime Minister will look at it and say, “For God’s sake, let’s just bury it”. There are far more important challenges facing Britain today than passing an unworkable Bill to annoy one section of the population—not to mention the 1.5 million trade unionists who voted for the Conservative Party at the last election. They will probably vote for it again because they do not vote according to their union; they vote according to their class interests. Most of my union members vote for the Conservative Party.
Let us be aware that this is not a matter where a Conservative Government have to stand up to the unions—they are standing up to their own supporters. Ordinary members of trade unions have worked hard to help the country become the prosperous country that it is. This sort of legislation is just the sort of damn nonsense that people look at and say, “My God, they just do not understand, do they?” They do not say that the Government are trying to do something. The general reaction to this Bill, I am afraid, among my trade union friends is that the Government do not understand what they are doing. I urge the Minister to send it back down the corridor and ask them to bury it in a nice big box somewhere.
Lord Collins of Highbury (Lab)
My Lords, I thought that I had better interject and speak to Amendment 5 in my name and that of the noble Lord, Lord Fox.
I reiterate what my noble friend Lord Woodley said. The Minister has said on every occasion that we have considered the Bill that this is not about banning the right to strike, which is a fundamental right. I have no doubt that the Minister will repeat that when he responds to this debate. We face in this country some of the most onerous processes and procedures in order for people to exercise that right through their trade union. The statutory ballot requirements are pretty rigorous and, as the noble Lord has said previously, they can be challenged in court. Unions are very concerned to make sure that they do not breach the law, that they act within the law and that strikes are lawfully conducted.
Here we have a situation where a clause in this Bill could place trade unions in a position where they would be asked to ensure that the members who vote for industrial action—who go through that rigorous process—do not take part in that action. That is not the responsibility of a trade union. A union could face an injunction or be forced to pay damages if it is deemed not to have taken “reasonable steps”.
The noble and learned Lord, Lord Thomas, talked about the definition of “may”. Well, what is the definition of “reasonable steps”? What situation are we putting trade unions in with this vague requirement that could result in them facing legal action? If a union is deemed not to have followed the legislation, the strike could be regarded as unlawful and the protection for striking workers, such as automatic unfair dismissal protection, could be removed from all striking members, including those not named in the work notices. So, employees will not know before participating in the strike action whether they have protection, and unions do not know what amounts to “reasonable steps”, as no detail has been provided in the Bill. I think that is an unacceptable situation. We should not be passing laws that put individuals and trade unions in that position.
Of course, this is not simply my view. The Joint Committee on Human Rights concluded:
“We find it hard to see how it is compliant with Article 11 ECHR to expose any participant in industrial action to the risk of dismissal simply because a trade union fails to take unspecified ‘reasonable steps’ required in respect of those subject to a work notice. In our view, the Government has not provided sufficient justification for this consequence or explained why the minimum service scheme could not be effective without it”.
I think those are the words—I do not need to say any more. I hope the House will support Amendment 5.
Lord Fox (LD)
My Lords, I will speak very briefly to both these amendments, which have my name. There might be an argument that the ends justify the means, but this does not deliver the ends. This false promise does not work. The means we are discussing here will poison industrial relations. The means we are discussing here will make recruitment into public services much harder, because working conditions will be made worse. The means we are talking about here will also remove predictability when we have a workplace dispute, because, as has been noted, people will go off sick and refuse to do overtime, and that will make the job of managing through a strike much harder.
The last group talked about protecting employers from this unwanted Bill. This group talks about protecting workers and unions from this unwanted Bill, and I ask your Lordships to support both these amendments.
Lord Hendy (Lab)
My Lords, I rise to support Amendments 4 and 5. I will be brief and speak only about Amendment 5. The purpose of the proposed new Section 234E is objectionable, for all the reasons my noble friend Lord Collins has spelled out: the ethical objection to requiring a union to undermine its own otherwise lawful strike. There is a more fundamental point here; this is an elephant trap. The purpose of this provision is to enable employers to get injunctions to prevent unions conducting a strike that has been balloted.
I am reminded that, 44 years ago, I stood at the Bar of this House as junior counsel in a case called Express Newspapers Ltd v McShane and Ashton. Since then, I must have done dozens of strike cases. I know what my learned friends will say, representing employers in the sort of case where this issue arises; they will say that the union has failed to take reasonable steps. The union will produce a witness statement setting out all the steps it has taken, and the employers will say, “Ah, but there’s one step you didn’t take”, and they will say what it was.
This Bill does not say what the reasonable steps are or what factors are to be taken into consideration. That is in contrast, for example, to Section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992; in dealing with dismissals during a strike, it set outs the words “reasonable steps” and says expressly what factors a court is to take into account in determining whether reasonable steps have been taken or not.
Lord Callanan (Con)
My Lords, I thank all noble Lords who have taken part in this debate. Before I address the terms of the amendments, I will first address the frankly ridiculous exaggerations from the noble Baroness, Lady O’Grady, and the noble Lord, Lord Woodley, that the UK is some kind of international parasite or outlier in considering this legislation—
Lord Callanan (Con)
My apologies—I thank the noble Baroness. I meant “pariah”. In terms of being an international outlier, many other countries have minimum service levels. I will give the House some examples. In the USA, ambulance workers are in most circumstances prohibited from taking any action; it is the same in Australia; in Canada, there is variation by province; Spain and France have statutory minimum service levels in ambulance services; Belgium has statutory MSLs. All these requirements are laid down in law.
In the USA, Australia and Canada, for fire services action is prohibited completely by law. Nobody in the UK is suggesting that we go that far. I accept that noble Lords opposite will not mind the example of the USA, but, last time I looked, Australia and Canada both had centre-left Governments. Yet they ban strike action completely in fire services. So the UK is not an international outlier in considering these MSLs. Spain, France and Belgium have statutory MSLs in fire services. I have no idea who is in government in Belgium at the moment—there is normally some sort of 20-party coalition—but nevertheless these are not hard-right Governments with complete freedom of action against workers. It is not unusual in international terms to consider MSLs.
Lord Reid of Cardowan (Lab)
I thank the Minister for answering an allegation that was not made by my noble friend. His point was that we were an outlier or pariah not because we had minimum service levels but because we were the only country with minimum service levels that was applying the sorts of terms and conditions that are objected to in the proposed amendments. That is quite a different thing from the argument about minimum service levels.
Lord Callanan (Con)
I do not think it is a different thing at all. If action is prohibited completely, as it is in the three countries I mentioned—let us take, for example, fire services—there is no provision for workers to take any strike action at all. If they do so, they are in breach of their contracts—presumably they can be dismissed, in those countries. I think the comparison is completely valid.
I turn to the amendments. To achieve a minimum service level, employers, employees and trade unions all have a part to play, in our view, and the Bill makes it clear what those respective roles are. The amendments in this group would remove key parts of the legislation, which we believe are necessary to make it effective, and I suspect that is the aim of those who tabled them. As such, I take the same position as I did in Committee and resist these amendments.
Amendment 4 seeks to remove the consequences for an employee who participates in strike action while being identified in a work notice. The approach taken is both fair and proportionate. It enables employers to manage instances of non-compliance with a work notice in exactly the same way that they would manage any other unauthorised absence. I repeat the point for the benefit of the noble Lord, Lord Collins: this is not about sacking workers, nurses or anyone else. An employee loses their automatic protection from unfair dismissal for industrial action if they participated in a strike contrary to a work notice, as indeed they would lose their unfair dismissal rights if they participated in any other form of strike action that was not in accordance with the law, just as failing to attend work without a valid reason does not necessarily mean that they will be dismissed. It simply enables employers to pursue disciplinary action if they believe it is appropriate, but it is ultimately at their discretion whether or not to do so.
Amendment 4 also provides that individuals identified in a work notice are not subject to the work notice unless they have been given a copy of it, and the employer must prove that the individual has received it. However, under the current drafting, employees lose their automatic unfair dismissal protection for going on strike in contravention of a work notice only if the employer notifies them that they are required to work under a work notice and of the work that they must carry out. I believe that this additional requirement is both unnecessary and duplicative; it could also be inappropriate as workers could be given a work notice which identifies thousands of other workers.
Amendment 5 seeks to ensure that unions have no responsibility for ensuring that their members do not participate in strike action and attend work instead if they have been named on a work notice. It also ensures that there are no consequences for failing to meet that responsibility. I suspect this is an attempt to disrupt the balance between the ability to strike and the rights and freedoms of others to go about their lawful business, which is ultimately at the heart of the Bill.
If employees are not incentivised to attend work on a strike day when they have been identified on work notice, or if a trade union has no responsibility to ensure that its members comply, the effectiveness of this legislation will be severely undermined. I suspect noble Lords opposite know that their amendments will do exactly that, and I am sure it is therefore no surprise to them that I cannot support them on this occasion. Given the direct disruption that these amendments will have on the ability of the public to go about their normal, lawful business, I ask noble Lords—without too much optimism—to feel free to not press their amendments.
Baroness O’Grady of Upper Holloway (Lab)
I thank the Minister for that response, but Amendment 4 is about the individual freedoms, dignity and livelihoods of workers. I therefore wish to test the opinion of the House.
Lord Collins of Highbury
Member’s explanatory statement
This amendment would remove the section that removes protection from Unions.
Lord Collins of Highbury (Lab)
My Lords, the Minister suggested that Amendment 5 undermines the Bill. Actually, the provisions that this amendment addresses undermine the democratic role of trade unions, which is why we have tabled it. This is not about minimum service levels; as we have said previously, these are properly and better addressed voluntarily. If this provision remains, it will simply undermine the role of trade unions. It has to go, and therefore I wish to test the opinion of the House.
Lord Thomas of Cwmgiedd
(6) This section does not apply to—(a) an Act or Measure of Senedd Cymru, or(b) an Act of the Scottish Parliament.”Member’s explanatory statement
This amendment would mean that the power of United Kingdom Ministers to amend primary legislation does not apply to Acts of the Scottish Parliament or Senedd Cymru.
Lord Thomas of Cwmgiedd (CB)
My Lords, I shall speak to both Amendment 6 and Amendment 7— Amendment 7 being the more important. I am grateful to the noble Baronesses, Lady Randerson and Lady Finlay of Llandaff, and the noble Lord, Lord Collins of Highbury, for supporting these amendments. I have tabled these amendments because this Bill, in its application to Scotland and Wales, is impractical, undemocratic and will make the services there worse. Let me briefly explain each of those points.
First, on impracticality, the main services—that is health, education and ambulance services—are all devolved. It simply is not practical for the Secretary of State for Health or the Secretary of State for Education, as advised by their departments in England, to deal with the position in Wales and Scotland. They do not deal at all with health and education in Wales or Scotland. They are run differently, on a basis of very different legislation to that in England. Let me explain why by reference to Wales.
As to health, under Welsh legislation it is the Welsh Ministers who give direction to the employers—the local health boards and trusts—about their functions. It is Welsh Ministers who have a role in setting pay and conditions in accordance with Welsh regulations and directions and the priorities of the Welsh Ministers.
As to ambulance services, these are run in Wales under the direction of a joint committee of health board chief executives, which has commissioned the Welsh Ambulance Services NHS Trust to run the services for the whole of Wales. Those same health board chief executives are appointed by Welsh Ministers, who are of course accountable to the Senedd. How can an English Minister set minimum service levels for Wales and interfere in this structure when the Minister and the department have no basis whatsoever for doing so, no interest in the policy, no interest in the priorities and do not really understand either the demographics or geography of Wales.
As to education, in Wales it is the local authorities that, with the governors, employ the staff. There are substantial differences in structure: there are no academies in Wales; funding, unlike in England, is not hypothecated; and minimum qualifications for teachers are different. Pay and conditions are set by the Welsh Government for the needs of the curriculum in Wales which, quite apart from bilingualism, is different to that in England. How can a Minister who knows all about education in England, yet has not been able to work out a policy for minimum service levels, set minimum service levels for education in Wales, about which the Minister knows absolutely nothing?
Overall, the position of the employers who have to decide whether to give a work notice in Wales and Scotland will be different to that in England. I have already set out the difficulties in dealing with Amendment 3. They will have to take into account different public law duties under different legislation, and the views of the Governments of Wales and Scotland, who have the power to give directions. Again, one can see a wonderful field day for lawyers.
Secondly, in my view, it is wholly wrong and contrary to basic democratic and constitutional principles for this to apply in Wales and Scotland. The responsibility for dealing with these services is not that of the UK Government but the Welsh and Scottish Governments under the legislation applicable in those nations. The Governments there were elected to run these services and are wholly responsible and accountable to the electorate for them. The English Government—the UK Government—are not accountable. It is therefore wrong in principle to undermine that accountability and democratic choice.
This is underlined by the refusal yesterday of the Senedd to give legislative consent. His Majesty’s Government will argue that the refusal is irrelevant, as it is not a matter for the Senedd or the Scottish Parliament because the Bill concerns a reserved matter, industrial relations. With the utmost respect to government lawyers, that is nonsense: the Bill is not about industrial relations but about devolved services. As has been explained, there is a fundamental failure to understand what the Bill is about. Secondly, the Senedd is the body democratically accountable for services, not the UK Government. Therefore, unless amended, this will be another piece of legislation where the Sewel convention is ignored. I have spoken of this before, but it is now being ignored at the heart of devolution, in services that have been run in Wales and Scotland for a very long time.
Thirdly, it will make matters worse for the people of Wales and Scotland by undermining the ability of the Welsh and Scottish Governments to manage their own relations with their staff and employees. The management of those relationships is different from, and has generally been more successful than, that of the Government responsible for England. Applying the Bill to Wales and Scotland is effectively taking away power from those who have responsibility for the management of the relationship, for the negotiations and for the setting of pay and conditions. It will undermine their ability to do this successfully. It is simply an arrogation of powers in matters over which the Government in England have no responsibility. Power without responsibility is a recipe for disaster for the people of Wales and Scotland, for which the Government, in respect of these services, have no responsibility at all.
In summary, the UK Government, which are under the law responsible only for health, ambulances and education in England, should not be interfering in areas for which they have no responsibility in Scotland and Wales. It is impractical, wrong in principle and makes no sense. The real problem is that this is yet another attempt to undermine devolution and give strength to those who wish to see the union weakened.
Baroness Randerson (LD)
My Lords, the noble and learned Lord has spoken very powerfully and comprehensively on this, and I am delighted to offer my support on both these amendments, which reflect how badly written this Bill is. It reflects a Government in a temper tantrum in the face of a period of determined and effective trade union action. I can hear government Ministers stamping their feet in a fit of rage and the result is this badly drafted Bill.
The report of the Select Committee on the Constitution condemns the Bill for being “skeletal” and declares that the concept of minimum services levels is insufficiently specified. This problem is particularly acute in relation to the devolved Administrations, because it is surely up to them to decide what minimum service levels should apply in their own countries in their own circumstances.
I will give two very concrete examples. First, in relation to health services, ambulance response times might quite reasonably be very differently specified in Wales and Scotland because in the Highlands of Scotland and rural mid-Wales the distances travelled are massive. Secondly, if you look at Welsh-medium education, dare I say it, it is unlikely that a UK Minister would even understand the minimum service levels they would have to specify. It is totally inappropriate that it should be in their hands.
At the heart of these amendments is the fact that most of the services specified are, of course, devolved and have a close impact on devolved services at the very least. Education, health, fire and rescue and most transport services are in the hands of the devolved Administrations, which are democratically accountable for the running of those services, yet the UK Government want to intervene in that relationship. That intervention will inevitably sour employer-employee relationships and inevitably mean worse services for the people of the countries concerned.
It will create a seriously muddy situation. Minimum service levels should be down to the democratically responsible Governments concerned, and in these services that is the devolved Governments. The muddy waters will be even more troubled by the information referred to earlier in Amendment 3 from the noble and learned Lord, Lord Thomas, that in practice employers will have to issue work notices in order to avoid being sued.
So, we have employers in devolved Administrations working to the devolved Governments which are going to have to act in response to UK Government actions. This is not practical, so for all these reasons I believe the Government need to draw a halt to their many steady and determined attempts to undermine devolution, and this Bill needs to apply only to England.
Lord Hope of Craighead (CB)
My Lords, I support both these amendments, speaking, if I may, from a Scottish point of view. I endorse entirely what has been said by my noble and learned friend Lord Thomas of Cwmgiedd and by the noble Baroness, Lady Randerson.
I would like to come back to the point about legislative consent, because I very much regret the fact that the Government have not sought that from the devolved legislatures. It is pretty obvious that it would have been withheld, but the fact that they never did that itself tells one a great deal about the Government’s attitude to devolution.
The fact is that almost all the services that we are concerned with—health, education and so on—are devolved. It follows that industrial relations in relation to these services are in the devolved area. We see this in Scotland day after day. Discussions about pay and conditions for nurses, junior doctors, ambulance workers and so on are dealt with in Scotland by the Scottish Government because they are dealing with devolved areas. Therefore, industrial relations in relation to these services really are within the devolved area and should have nothing to do with Ministers in Whitehall. There is a basic misconception about the approach the Government have taken in the Bill in relation to these devolved areas. Without elaborating on the other points that have been made, it is because of that very basic misconception that has misguided the Government from the start that I support these two amendments.
Lord Wigley (PC)
I am glad of the opportunity to support these amendments and to thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for introducing them and noble Lords for the supporting arguments that have been put forward so far.
Wales has a long and honourable tradition of trade unionism. It has been constitutional trade unionism. There has been an interesting situation over the past 20 years where mainly Labour-led Governments have had to negotiate with trade unions in Wales. Of course, there have been differences of opinion, and give and take, but generally the attitude and the atmosphere have been positive. The last thing we want is to see legislation from Westminster or anywhere else cutting across that and becoming an excuse for things that then go wrong. We want the responsibility for these matters to lie with our Senedd in Cardiff and no doubt likewise in Edinburgh. For that reason, I very much hope these amendments will be passed.
Lord Balfe (Con)
My Lords, I point out that Scotland and Wales have separate trade union organisations. Perhaps the noble Baroness, Lady O’Grady, would like to tell us of some of the divisions, difficulties and challenges that she faced within the TUC in getting a common position. One should not underestimate the fact that both these countries have a separate tradition and, importantly, a separate structure. So if orders are going to be given and trade unions are going to be disciplined, they are going to have to be disciplined in more than one jurisdiction. I would be very interested to hear from the noble Baroness the difficulties that she sees in trying to make this work, when quite rightly the trade union movements in Scotland and Wales have separate structures, often separate policies, which may be congruent but are separate, and separate ways of existing and negotiating.
Lord Kerr of Kinlochard (CB)
Speaking as a Scotsman and a unionist, I strongly support the point made by the noble and learned Lord, Lord Hope. It seems to me that if one is to maintain the union, it is important to maintain the devolution settlement. This Bill undermines the devolution settlement.
Lord Collins of Highbury (Lab)
My Lords, I want to make a few brief points. Of course, the noble and learned Lord is absolutely right that defining and managing service levels is a devolved matter. It is how you manage and define them. So when it comes to defining minimum service levels, who has responsibility? It is not the Government. It is actually going to be the responsibility of the devolved institutions and devolved Governments. Let me say this: this is not about devolving employment rights. Employment rights are in a single market and they are clearly defined. This is about service levels. We had debates in Committee about how to define service levels on non-strike days. The devolved Governments are going to be responsible for that, and that is the democratic accountability. That is why it is really important that we support these amendments.
Lord Callanan (Con)
My Lords, Amendments 6 and 7 relate, as has been said, to the devolved Governments. Amendment 6 seeks to remove the power for the Secretary of State to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd Cymru. This amendment was previously tabled in Committee, and no one will be surprised to know that the Government’s position remains unchanged.
As I have previously stated, the powers in Clause 3 can be exercised only to make amendments that are necessary to give effect to the Bill; they are therefore truly consequential. Employment rights and duties and industrial relations are reserved in respect of Scotland and Wales. It is therefore right that the Secretary of State has the power to make consequential amendments to primary legislation made by the Scottish Parliament or Senedd Cymru, if required, to ensure that the new legal framework operates in a coherent way across the whole of Great Britain. As always, the Government will engage with the devolved Governments as appropriate should consequential amendments be required to Acts of the Scottish Parliament or the Senedd Cymru.
Amendment 7, meanwhile, seeks to limit the territorial application of this Act to England. The noble Baroness, Lady Randerson, tabled a similar amendment in Committee, and the Government continue to resist this change for the same reasons that I set out then.
As has been said numerous times in this debate, once regulations for minimum service levels are in force for a specified service, if a trade union gives notice of strike action, it is then the employer’s decision whether to issue a work notice ahead of the strike, specifying the workforce required to achieve the minimum service level for that strike period. If the employer is the Scottish Government or the Welsh Senedd, it is their decision whether or not they use this legislation. Of course, we hope that all employers will want to do so where needed —as was said in relation to the amendments of the noble and learned Lord, Lord Thomas, employers must consider any contractual, public law or other legal duties that they have—but the Bill does not contain a statutory requirement to do so. No one is forcing them to use this legislation.
We will, as we have done throughout this legislation, continue to engage with the devolved Governments as part of the development of minimum service levels in those areas and the consultations that would be required that are informing these decisions. The Government have a duty to protect the lives and livelihoods of citizens across Great Britain. The disproportionate impacts that strikes can have on the public are no less severe in Scotland or Wales, and the people there have every right to expect the Government to act to ensure that they can continue to access vital public services, which they pay for, during strike action.
I hope—again, perhaps without too much optimism—that noble Lords will therefore feel able not to press their amendments.
Lord Thomas of Cwmgiedd (CB)
My Lords, I considered whether to press both amendments to a Division, but it seems to me that the critical one is Amendment 7. If the Act is not applicable to England, Amendment 6 is, in effect, consequential and falls away. I therefore intend to withdraw Amendment 6 but will ask to test the opinion of the House on Amendment 7.
There are two fundamental reasons for that. First, it is essential that we do not undermine devolution. The devolution Acts give the responsibility for services to the devolved Governments. If the devolved Governments fail to deliver those services, they can be booted out at the next election. That is democracy, which I had hoped this Government believed in.
Secondly, the argument that the Minister has put forward—that the Governments in Wales and Scotland are the employers and can themselves determine whether the notices should or should not be given—is misconceived. As I sought to say, they are not the employers. The employers are the trusts and the local authorities. Probably wrongly, I did not press Amendment 5, but the Government now have to bear the consequence.
If they had agreed to my amendment, the point the Minister made might be a good one—but they did not. The consequence is that it is not up to the Governments of Scotland and Wales. They will have interests and points to make, just as no doubt the UK Government will have to the English authorities. But, ultimately, it will be for the employers. Therefore, this is an outright interference in the running of services in Wales and Scotland. They are at the heart of devolution. This, if anything, proves that what this Government want to do is undermine devolution and thus weaken the union. I will therefore press Amendment 7 in due course, and in the meantime I beg leave to withdraw Amendment 6.
Lord Thomas of Cwmgiedd
Member’s explanatory statement
This amendment would limit the application of this Act to England.
Lord Thomas of Cwmgiedd (CB)
I wish to test the opinion of the House on Amendment 7.
Strikes (Minimum Service Levels) Bill
Tuesday 9th May 2023
(11 months, 3 weeks ago)
Lords ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 132-I Marshalled list for Third Reading - (5 May 2023)
Lord Collins of Highbury
Lord Collins of Highbury (Lab)
My Lords, I will not detain the House for too long. I am very grateful to the Public Bill Office and the clerks for advising me on these consequential amendments which arise from the amendments carried by the House on Report. I am grateful for these technical amendments to be approved by the House. It does not particularly change my view on the overall impact of the Bill, but I am hopeful that the Government will focus on achieving settlements, particularly in the health service, where we have seen some progress. I do not see that the Bill, even as amended, will improve the situation but I hope noble Lords will consider these technical amendments and send the Bill back as speedily as possible. I beg to move.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, these amendments are intended to tidy the Bill, following the votes to amend the Bill on Report. They intend to remove from the Bill references to Section 234E, which was removed due to the passing of Amendment 5.
By convention, the Government do not oppose these amendments as we have a duty to send to the other place Bills that are internally consistent. However, I make it clear that the Government fully expect these topics to be revisited following the consideration of these amendments in the other place, which would result ultimately in them being reconsidered here also.
Lord Collins of Highbury (Lab)
I note the Minister’s comments. I hope that when they return here, we will have the same level of scrutiny, because this is a bad Bill with certain consequences which will not improve industrial relations in this country—in fact, it will make them worse. It will not achieve the objectives the Government set out; it will have the completely opposite effect. Bearing those comments in mind, I welcome the Minister’s commitment to agree to these amendments.
Lord Collins of Highbury
Lord Callanan (Con)
My Lords, I thank all noble Lords who have contributed to the scrutiny of the Bill. We had an extremely thorough and, perhaps at times, slightly repetitive debate, but that is the nature of the parliamentary process. I am grateful to everyone who engaged in that process. In particular, I thank my Whip, my noble friend Lady Bloomfield, who, as usual, has kept us all in order. Thankfully, nobody fell asleep during this one, so we were all spared her wrath on this occasion.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will make two points. First, I thank the Minister and his colleague for their great courtesy in discussing various points. Secondly, I hope we learn something from this Bill. It is a simple lesson: this is not the way to legislate.
Lord Fox (LD)
My Lords, as the noble and learned Lord has just said, this Bill arrived in your Lordships’ House in a flawed state. It sought to bypass Parliament and the devolved legislatures, with the aim of implementing a system where the Secretary of State—they alone—could implement service levels that, in effect, make strikes illegal, exposing individuals to the risk of being fired for striking. Thanks to the hard work of your Lordships’ House, it goes back to the other end somewhat improved.
I thank the Minister for his tolerant acceptance of the debate, which I know at times he found difficult. Thanks go to the noble Baroness, Lady Bloomfield, and the Bill team, who have had to sit through all of this. A number of Cross-Benchers spoke in the debates. I pick out particularly the noble and learned Lords, Lord Hope and Lord Thomas, the noble Lord, Lord Kerr, the noble and right reverend Lord, Lord Sentamu, and the noble Baroness, Lady Meacher, and thank them for their commitment. On the Bishops’ Bench, I thank the right reverend Prelate the Bishop of Guildford. His contribution was very important, as were those from the noble Lord, Lord Wigley, and the noble Baroness, Lady Jones.
I thank His Majesty’s loyal Opposition for their contribution. I think we worked together very well, particularly with the noble Baroness, Lady O’Grady, and the noble Lord, Lord Collins, but I thank all who spoke. On these Benches, our team, including the noble Lord, Lord Allan, and the noble Baroness, Lady Randerson, gave fantastic support. They gave your Lordships very strong reasons as to why the Bill has to change. I thank Sarah Pughe in our Whips’ Office for the hard work she is doing.
When the Bill comes back, I am sure we will re-engage. I hope the team I have just listed, and others, will reconvene in the event that the Government do not see the wisdom of their ways.
Lord Sentamu (CB)
My Lords, I was not going to speak, but the noble Lord was very gracious in his speech. It is true that the House of Commons, as the elected House, in the end determines and fixes the law. In the light of what the noble and learned Lord, Lord Thomas, has just said, if you legislate in a bad way, the lesson you learn is to not go back to your bad ways by taking out amendments that have actually improved the legislation.
The devolved Governments not being consulted before the Government legislate will harm this United Kingdom, over which King Charles is the Head of State. I beg the other place not to take the amendments out because it is the elected House; I ask it to take them out because it thinks that that would improve the legislation. If it does not think that, please do not make us look like unruly people.
Lord Collins of Highbury (Lab)
My Lords, I add my thanks to the Minister for the way he has conducted himself, and I thank others who supported him. I thank the Bill team, which has been forthcoming about what it thinks the Bill means. I also thank my noble friend Lady O’Grady, who was thrown in at the deep end, as it were, having just arrived in this House; she acquitted herself brilliantly and made some forceful arguments. I thank all noble Lords who contributed to the debate, particularly those on the Lib Dem Benches, who played an active role, and those on the Bishops’ Benches, who played a positive role in highlighting the evidence about what the Bill could lead to.
On the point of the noble and learned Lord, Lord Thomas, this is a skeleton Bill, and we do not really know what it means legislatively. The remarks of the Minister’s friend, Jacob Rees-Mogg, sum it up: MPs will have no idea about the practical implications of the implementation of the powers that will be granted, not to the other House but to Ministers. There is no proper scrutiny.
Nevertheless, we have done a very good job and have amended the Bill. I hope that those amendments will be considered positively down the other end, but, as I have said at every stage of the Bill, when Labour returns to government fairly shortly, we will repeal this legislation.
Strikes (Minimum Service Levels) Bill
Monday 22nd May 2023
(11 months, 1 week ago)
Commons ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 22 May 2023 - (22 May 2023)
20:14 - The House divided: - Ayes: 288 / Noes: 227 - Question accordingly agreed to.
20:28 - The House divided: - Ayes: 286 / Noes: 231 - Question accordingly agreed to.
20:40 - The House divided: - Ayes: 286 / Noes: 232 - Question accordingly agreed to.
20:51 - The House divided: - Ayes: 287 / Noes: 232 - Question accordingly agreed to.
The Parliamentary Under-Secretary of State for Business and Trade (Kevin Hollinrake)
I beg to move, That this House disagrees with Lords amendment 1.
Madam Deputy Speaker (Dame Rosie Winterton)
With this it will be convenient to discuss the following:
Lords amendment 2, and Government motion to disagree.
Lords amendment 4, and Government motion to disagree.
Lords amendment 5, and Government motion to disagree.
Lords amendment 6, and Government motion to disagree.
Lords amendment 7, and Government motion to disagree.
Lords amendment 3.
Kevin Hollinrake
This Bill was introduced with the intention of balancing the ability to strike with the rights and freedoms of the public, by applying minimum service levels on strike days to protect the lives and livelihoods of the public. We should not ignore the fact that the economic costs of these strikes have been estimated at around £3 billion, and much of that impact falls on business sectors that are already facing difficulties, such as the hospitality sector.
The Bill brings the UK into line with many other countries: Spain and France have statutory minimum service levels in ambulance services and they also, along with Belgium, have statutory minimum service levels in fire services. In some countries, such as the United States of America, Australia and Canada, some services are prohibited from taking any strike action altogether. However, the Government are not suggesting we go that far.
Alan Brown (Kilmarnock and Loudoun) (SNP)
In the European countries the Minister mentioned where there is minimum service provision, is it not the case that that minimum service provision is agreed by negotiation, and that workers there do not get sacked for striking?
Kevin Hollinrake
All jurisdictions differ, and the way that minimum service levels are set differ. Some are set by the Government; we have done that, through consultation with stakeholders, and we will decide what the right level of minimum service will be. All jurisdictions differ somewhat, but the key point is that in many jurisdictions there are restrictions placed on the ability to strike.
David Linden (Glasgow East) (SNP)
On the issue of stakeholders and jurisdictions, may I turn the Minister’s attention to the devolved Administrations? The SNP Scottish Government have been crystal clear in their opposition to this tawdry piece of legislation. In the interests of the UK Government’s respect agenda when it comes to the devolved jurisdictions, why are they ploughing ahead with this Bill that drives a coach and horses through the fundamental human right to withdraw one’s labour?
Kevin Hollinrake
I will deal with that question in a second; it is covered by one of the Lords amendments that I will speak to, so I will address it when I come to the element of my speech relating to the devolved Administrations.
The Bill returns to us with a number of amendments made in the other place. I would like to be clear that, with the exception of our own Lords amendment 3, the Government consider the majority of the changes to be designed to make the Bill either less effective or entirely ineffective in achieving its aims. The Government will therefore be disagreeing with those amendments.
I will speak first to Lords amendment 3, which was tabled by my colleague Lord Callanan in the other place and provides clarity in respect of the matters to which an employer must not have regard in respect of trade union membership and activities when deciding whether to identify a person in a work notice. The amendment addresses a point raised by the Joint Committee on Human Rights in its report on the Bill.
Joanna Cherry (Edinburgh South West) (SNP)
The Minister and I have had some correspondence about the Bill in my capacity as Chair of the Joint Committee on Human Rights, but can he not see that many of the concerns we expressed in our report on the Bill are echoed by the amendments that the Lords have brought, and also by organisations such as the TUC and the Equality and Human Rights Commission? Why is he not giving them more weight?
Kevin Hollinrake
At times in life we have to agree to disagree, do we not? The Government feel that the Bill strikes a balance, but the hon. and learned Lady does not, and I respect her opinion. I studied carefully the letter she sent me and I responded to it.
Joanna Cherry
I am not talking about the report of the Joint Committee on Human Rights alone; I am saying that many of our concerns are widely supported by other groups such as the EHRC, the TUC and, now, the majority of their lordships. Will the Minister not reconsider the response he gave to my Committee’s report?
Kevin Hollinrake
Of course we have considered those concerns, and we considered the amendments in the other place. We feel that what we are proposing with this legislation strikes the right balance. I fully accept that the hon. and learned Lady disagrees with that position.
Mike Amesbury (Weaver Vale) (Lab)
Is it not the case that the Government’s own, belated, impact assessment suggests that the Bill is ineffective? It is just unworkable. In fact, I think both the Secretary of State for Education and the Transport Secretary have said the same. The Bill will just make matters considerably worse in terms of industrial relations.
Kevin Hollinrake
That is not what has been said, and I disagree with that perspective. The fact that other jurisdictions and other nations use this approach to making sure there are minimum service levels to protect the public, their lives and their livelihoods is indicative that it is the right thing to do. Indeed, as the hon. Gentleman knows, derogations exist in parts of our public services that do exactly what we are requiring services to do with minimum service levels; it is just that they do not work effectively all the time.
Rachael Maskell (York Central) (Lab/Co-op)
The Minister finds himself in an isolated position. At the Health and Social Care Committee on 9 May, NHS Providers, NHS Employers and NHS Confederation all said that the Bill was incredibly unhelpful and that additional legislation could make things more difficult, rather than improving the situation. Sir Julian Hartley, the chief executive officer of NHS Providers, said so. Why is the Minister going against the employers, not just the trade unions?
Kevin Hollinrake
We do not see that as being the case and we do not agree with that position. We think the Bill is effective and that it is the right thing to do to make sure that people can go about their daily lives unhindered, without fear or concerns about not being able to access vital public services.
I turn next to Lords amendment 1, which changes the application of the Bill from the whole of Great Britain to England only. The amendment would mean that strike action would continue to have disproportionate impacts on the public in Wales and Scotland. As the Government have always maintained, the purpose and substance of the Bill is to regulate employment rights and duties and industrial relations in specified services. Industrial relations is clearly a reserved matter and therefore we consider it right and appropriate to apply the legislation to the whole of Great Britain.
I also point out that the employer has statutory discretion on whether to issue a work notice ahead of the strike, specifying the workforce required to achieve the minimum service level. We hope that all employers will issue work notices to ensure that minimum service levels are achieved where it is necessary to do so. Employers must consider any contractual, public law or other legal duties that they have.
John McDonnell (Hayes and Harlington) (Lab)
The Lords passed an extremely sensible amendment asking the Government simply to consult before they go further with this legislation. To give an example of why consultation is needed in my constituency, there is no such thing as a minimum service for air traffic controllers. In effect, that means that the Government are barring air traffic controllers from ever taking industrial action. Those sorts of consultations need to take place before the Government, as others have said, inflame the industrial relations climate in this country.
Kevin Hollinrake
As the right hon. Gentleman knows, we have already consulted. Those consultations closed around the middle of May. We will obviously look carefully at all the submissions made; it is important that we do. Ministers—I have one sat next to me: the Minister of State, Department for Transport, my hon. Friend the Member for Bexhill and Battle (Huw Merriman)—will make sure that stakeholder submissions are properly taken into account.
Several hon. Members rose—
Kevin Hollinrake
I will make some progress. Lords amendment 2 would require a consultation be carried out and reviewed before use was made of the power to make regulations setting minimum service levels. The primary stated motivation for tabling the amendment was to increase parliamentary scrutiny of the regulations implementing minimum service levels. Although there may be some merit to the intentions behind the amendment, it is, in the Government’s view, duplicative, and would ultimately delay the implementation of the policy. For those reasons, we disagree with it.
I turn to Lords amendments 4 and 5, and the associated tidying amendments, Lords amendments 6 and 7. In the Government’s view, the amendments were tabled to make the Bill inoperable.
Janet Daby (Lewisham East) (Lab)
Will the Minister explain how the legislation complies with all International Labour Organisation conventions?
Kevin Hollinrake
We believe that it does. The ILO endorses the use of minimum service levels to make sure that the provision of public services is maintained during periods of industrial action. We are happy with our position on that.
We resist Lords amendments 4 to 7 on the principle that the Government have a duty to pass effective legislation. It is regrettable that Opposition Lords have sought to undermine that principle. Lords amendment 4 would mean that there were no consequences for a worker who did not comply with a work notice. The Government disagree with the amendment, as without those consequences, employers would be powerless to manage instances of non-compliance, and strikes would continue to have a disproportionate impact on the public. That would severely undermine the effectiveness of the legislation. Given that the amendment would make the Bill ineffective, as I suspect the Opposition intended, the Government cannot support it.
Chris Stephens (Glasgow South West) (SNP)
It looks as though the unelected House has a better understanding of what happens in the workplace than the Government do; that should worry the Minister. Can he name other countries where a worker could be dismissed in such circumstances?
Kevin Hollinrake
In some countries, such as those I referred to earlier, strikes are banned completely for those working for some blue light services. We already have that situation in the UK for the armed forces, prison officers and the police. There would be a breach of contract if people in those positions were to strike.
Kevin Hollinrake
I will make progress, if I may. Lords amendment 5 also seeks to make the Bill inoperable. It would mean that there were no legal consequences for a union that induced people to go on strike when they had been identified, through a work notice, as needing to work, or for a union that failed to take reasonable steps to ensure that their members complied with work notices. The amendment would mean that unions had no responsibility for ensuring that their members did not participate in strike action and attended work if named in a work notice.
Bob Seely (Isle of Wight) (Con)
Minimum service levels are entirely sensible; it is an idea whose time has come, and it shows that we support the working people in this country, unlike the Opposition parties. On the awfulness of Lords amendment 5, given that we have here the Minister of State, Department for Transport, my hon. Friend the Member for Bexhill and Battle (Huw Merriman), I wanted to ask this. Secondary legislation will be used to decide which industries are to be covered by the measures. The Bill is particularly targeted at rail, but I would like at some point to have a conversation with the Minister about including the Solent ferries. They are truly a lifeline service, because unless my constituents fancy swimming the Solent, they do not have an alternative to ferries, whereas people have an alternative to rail and other services.
Kevin Hollinrake
I am grateful to my hon. Friend for that point. He has raised it with me offline. I am of course very happy to have a proper discussion with him about that, and I know that Transport Ministers would also be happy to.
Alan Brown
On making unions responsible for forcing workers to comply with work notices, does the Minister not understand that unions work for and on behalf of their members, and reflect their wishes? If their members wish to go on strike, how is it just or moral to force unions to make their workers break that strike?
Kevin Hollinrake
There is a balance to be struck, and what I think is just and moral is ensuring that public services are maintained. That is the balance that we are trying to ensure. We are not at all saying that people cannot strike; we are saying that a minimum service level should be maintained during the strike.
Lords amendment 5 would mean that there were no consequences for trade unions that failed to meet their responsibilities. If we remove the consequences for trade unions that fail to take reasonable steps, we will be far less likely to achieve minimum service levels, as trade unions might attempt to persuade workers not to comply with work notices, and to take strike action instead.
Angela Rayner (Ashton-under-Lyne) (Lab)
Let me start by drawing the attention of the House to my entry in the Register of Members’ Interests, which reflects the fact that I am a proud trade unionist, and have been for a very long time. As the Minister outlined, today we return to the Conservatives’ sacking nurses Bill because the other place has reached the same conclusion as us: this Bill is as unworkable as it is unnecessary. It is not just an almighty, anti-democratic attack on working people, but a threadbare Bill that does not stand up to a shred of scrutiny. Today we consider a number of Lords amendments.
Let me be clear: Labour Members oppose this Bill in its entirety, and we stand ready to repeal it when in government. That said, we thank Members of all parties in the other place who made the thoughtful and sensible amendments that we are considering tonight. They do not solve all of the very long list of issues with this legislation, but they take the sting out of its worst elements to a significant extent. For that reason, Labour Members will reject all attempts by the Government to remove the amendments.
This evening, we will hear a raft of excuses for the Bill, and for why we cannot uphold the Lords amendments. We will hear that the Bill is about protecting public safety—well, I don’t know; there are not many Government Members here and willing to defend it. We will hear that Government Members all want minimum service levels all the time, but it is Tory Ministers who are failing to provide the minimum service levels that we need in our public services.
Andy McDonald (Middlesbrough) (Lab)
Does my right hon. Friend agree that nurses are taking action in order to protect patients? We hear continually about cases in which there are only two nurses on a night shift, trying to manage a ward of 30 patients. Is that not evidence that nurses are taking action because they have been pushed to the brink? Are they not doing the right thing by holding the Government to account through their actions?
Angela Rayner
I absolutely agree. I worked alongside my hon. Friend on workers’ rights for many years. I was a care worker for many years, and had to take industrial action once. People, especially in public service, do not do that lightly. The nurses’ union took its first ever industrial action recently. We have seen an unprecedented amount of strike action, and there is an absolute crisis in vacancy numbers in our public services because of this Government. The real risk and danger to public services at the moment is from this Conservative Government. After 13 years in office, they have really run down our public services, and they are not listening to the people who are trying to deliver those services.
Christine Jardine (Edinburgh West) (LD)
Does the right hon. Member agree that one of the most frustrating things about the Bill, which appears to be totally ineffective, is that the minimum service levels that it sets out are very often not met in normal working times?
Angela Rayner
The hon. Member makes a crucial point, which I was trying to make to the Minister: on non-strike days, minimum service levels do not apply at the moment. Many of the people providing our public services are absolutely screaming at the Government, “We need more people working in those services. We are having record vacancies. We are having people leave the profession because of the mismanagement by this Conservative Government.” Take our fire and rescue services: how does the closure of 80 fire stations across the UK keep the public and our brave firefighters safe? Take our precious NHS: how does having 7.3 million patients left on waiting lists keep people safe? And take our overstretched schools: how do record teacher vacancies keep our children safe?
Janet Daby
Is my right hon. Friend aware that the Regulatory Policy Committee’s opinion, published on 21 February, red-rated the Government’s impact assessment for the Bill as “not fit for purpose”? Does she agree that, in fact, it is the Government who are not fit to govern?
Angela Rayner
I absolutely agree. How will threatening key workers with the sack in the middle of an unprecedented recruitment and retention crisis do anything to provide the level of services that the public deserve?
We will also hear tonight that the Bill brings us into line with international standards, but what does the Minister have to say to the ILO’s director general who slammed down the Bill in January? The Minister did not effectively answer the questions that were put to him during his opening statement. What does he say to President Biden’s labour Secretary, who also raised concerns?
We are going to hear that the Bill is the only way to bring strikes to a close. We are now in May and there is no end in sight to the current wave of industrial action, harming the public, small businesses and, not to mention, the workers who lose a day’s pay. Might I give the Minister some friendly advice? Strikes are ended by getting round the table, not by insulting the very workers who kept the country going during the depths of the pandemic.
The Bill is one of the most sinister attacks on working people I have seen, and I speak as a trade unionist, an employer and a Member of this House. It gives Ministers the power to threaten every nurse, firefighter, health worker, rail worker or paramedic with the sack. Other Government Members wanted even more people to be in scope. I do not think they want anybody anywhere to have trade union rights in this country. This is being done at their whim. They have literally gone from clapping nurses to sacking nurses.
In the words of my noble Friend Baroness O’Grady, Lords amendment 4 is about
“the individual freedoms, dignity and livelihoods of workers.”—[Official Report, House of Lords, 26 April 2023; Vol. 829, c. 1242.]
Labour is proud to support that amendment. We ask any Government Member—there are not many of them here—who believes in the right to protection from unfair dismissal to vote with us tonight.
We also stand by the provision in Lords amendment 4 to require employers to serve work notices and to prove that individuals have received them. The Government’s proposal not only threatens workers, but burdens employers, including our overstretched public services and small businesses. That only goes to show the Bill’s complete unworkability and proves the point of all employers who have condemned it.
The Bill also represents an almighty attack on trade unions—unions made up of ordinary working men and women. We are all grown up enough to acknowledge the integral role they play in our economy and our democracy. I think we can all agree that attempts to attack their ability to represent their members is morally, economically and democratically wrong. In its original form, the Bill would require them to take “reasonable steps” to ensure compliance work with notices, without any clarity on what that means. The Government have effectively conceded the flaws in their drafting of the Bill in their concession on Lords amendment 3. That is welcome, but not enough. The Minister asks us to vote tonight for vague and unclear wording that gives us no idea of what they actually require trade unions to do. So we will vote to keep Lords amendment 5 and by extension, Lords amendments 6 and 7.
Alan Brown
The right hon. Lady has not really mentioned Lords amendment 1, although I note that she said that Labour Members would vote to retain it, and that is welcome. Given that Lords amendment 1 would limit the territorial extent to England, does that mean that Labour now recognises the need to fully devolve employment law to Scotland to completely protect us from Westminster?
Angela Rayner
We want a Labour Government for the whole United Kingdom, but we also appreciate Lords amendment 1 and the devolved powers. We believe in devolution. We were the party of devolution. We were the ones who gave devolution because we absolutely believe in it, but we also believe that we need a Labour Government to get rid of the Conservative Government in Westminster so that we can change the whole United Kingdom for the better.
Another one of the most troubling aspects of the Bill has been the profound lack of scrutiny. The Bill presents the Secretary of State with huge and unchecked powers to set, impose and police minimum service levels and to amend, repeal and revoke primary legislation. This is about not just laws that the Government already have passed, but even those we pass in the future, yet we have no real idea why they would need that power nor how they intend to use it.
Where there has been measly scrutiny, the wide-ranging consensus has been that the Bill is a total disaster. The Regulatory Policy Committee called it “not fit for purpose”. The Equality and Human Rights Commission and the Joint Committee on Human Rights sounded the alarm. The impact assessment was also published late, finding that this legislation could lead to more industrial action and have unknown knock-on consequences. Consultations have been launched in a haphazard way and only for certain sectors, without any explanation. There has been no meaningful consultation on the Bill as a whole, not least with the very people that it will have an impact on. If the Government had nothing to hide, they should have nothing to fear. Labour Members will vote to keep Lords amendment 2 and to protect the democratic scrutiny that the House is meant to provide.
There are serious concerns about what the Bill will mean for devolution. I have mentioned the unprecedented Henry VIII powers, which allow Ministers to make decisions about services that are entirely run by the devolved Administrations, including the elected Governments of Wales and Scotland. The Bill sets a dangerous precedent, using powers reserved to Westminster in one area of law to interfere in other areas that have been devolved. Perhaps the Minister has noticed that the Welsh Senedd and the Scottish Parliament have refused legislative consent. There has been no attempt to seriously engage with them or with devolved Administrations with powers over sectors listed in the Bill, including not just London, but my patch of Greater Manchester. This is a question not of changing the devolution settlement, but of defending it from the threat of the Bill. That is why we will vote to uphold Lords amendment 1.
This is one of the worst pieces of legislation in modern times, and looking over the last 13 years, that says a lot. But it is not just Labour Members who think that. The Bill has been widely and routinely condemned by: the Regulatory Policy Committee; the Equality and Human Rights Commission; the Joint Committee on Human Rights; NHS providers; the rail industry; the Chartered Institute of Personnel and Development; the CEO of the confederation of recruitment companies; the CEO of the NHS Confederation; President Biden’s labour Secretary; the ILO; all UK trade unions; the TUC; the Welsh and Scottish Governments; the former Secretary of State, the right hon. Member for North East Somerset (Mr Rees-Mogg); the right hon. Member for Stevenage (Stephen McPartland); the Transport Secretary; the Education Secretary—what a shambles! If it was not so serious, it would be a joke. This is from a Government who are desperately trying to distract from the 13 years of their own failings and who are playing politics with key workers’ lives.
The Bill is shoddy, unworkable and unnecessary. For the sake of every nurse, teacher and firefighter across the UK, and for the sake of our British democratic institutions, I urge the whole House to join us in supporting the thoughtful and sensible amendments from the other place and to vote down the Government’s vindictive motions tonight.
Alan Brown
Thank you, Madam Deputy Speaker. It is a pleasure to follow the shadow Minister, the right hon. Member for Ashton-under-Lyne (Angela Rayner). I agree with what she said, and I welcome her comments on devolution protecting the devolved Parliaments. I also welcome the commitment from Labour to repeal this legislation if it is in Government, but I would point out that there have already been a number of Labour U-turns recently, and now we have heard the mantra that Labour is not going to be in power to do the job of repealing nasty Tory legislation, so there is a concern that Labour will not do what its representatives have promised at the Dispatch Box. It is also amazing that in an earlier intervention from the Tory Benches, we heard the mantra that the Tories are the party of workers. The party of workers will not even have one Back-Bench contribution to today’s debate on the Lords amendments—that is how interested they are in the workers in reality.
Mary Kelly Foy (City of Durham) (Lab)
I rise this evening as a proud trade unionist, proud to declare my interest as a member of two great unions—Unite and Unison—and proud to represent a constituency that is at the heart of the labour movement. I know that every single worker who marches in the Durham miners’ gala will be opposed to this Bill, which is autocratic, undemocratic and unworkable. It is autocratic because it gives enormous powers to the Secretary of State through Henry VIII powers, reducing Parliament’s role to a rubber stamp. It is undemocratic because it is another poorly written Bill rushed through Parliament that will undoubtedly see the intervention of the courts after Royal Assent. It is unworkable because trade unions and their members will not accept this blatant attack on their rights, and nor should they.
Since the Combination Act 1799, the party on the Government Benches has tried to suppress working people’s rights, but it has never succeeded in that, and it never will. The right to strike is a fundamental human right that goes hand in hand with freedom of association. History shows us that working people are never afraid to challenge an oppressive Government. We have seen that in the recent wave of industrial action, where workers are prepared to fight for decent pay, against poverty wages, for secure jobs and for their communities. They will continue, whether or not this Bill becomes law, and the public will be on their side.
Ministers could have used this time to negotiate with trade unions, tackling the real causes of industrial unrest. Instead, they have wasted Parliament’s time with a Bill that the Joint Committee on Human Rights has said falls short of human rights obligations. Amendments made in the other place have sought to put flesh on this skeleton Bill—amendments that the Government will reject this evening.
It is disgraceful that this Bill seeks to undermine devolution using Henry VIII powers. I commend my hon. Friend the Member for Cynon Valley (Beth Winter) on her amendment in Committee, and I welcome the amendments from the other place. The British Government should not be interfering in areas where they have no responsibility. It will simply deepen the divide between London and the devolved Governments, and it is a joke that Ministers talk about public safety during strikes when the Bill itself does not even mention safety. It is all just a smokescreen to attack workers’ rights even further.
On the Government’s watch, austerity has removed 20% of firefighters since 2010, making all our lives less secure. It is the same with nurses. Tens of thousands left the job they love just last year, and now the Government want to make nurses’ lives and the lives of millions of other workers even harder. Why are Ministers not tackling the causes of this issue—the cost of living crisis that is making the lives of my constituents a misery?
David Linden
It is a pleasure to be called in this debate, and it is a pleasure to follow the hon. Member for City of Durham (Mary Kelly Foy). I am glad that she touched on point that any future Labour Government would repeal this Act. I am just struck, as was my hon. Friend the Member for Kilmarnock and Loudoun (Alan Brown), by the quote from the right hon. Member for Tottenham (Mr Lammy), who said:
“We can’t come into office, picking through all the conservative legislation and repealing it… It would take up so much parliamentary time. We need a positive agenda.”
If a positive agenda is not standing up for the principle of human rights and democracy, I do not know what is. Perhaps when the Labour Front Bencher sums up at the conclusion of the debate, they will outline exactly how quickly this Bill will be repealed from the statute book, as well as anti-trade union legislation more generally.
As others have done, I declare an interest. I am a member of the Unite trade union, which opposes this Bill, and I am happy to stand in solidarity with it. We are very much beyond the looking glass when it takes Members of the House of Lords to be the people standing up for the principles of democracy and human rights; none the less, I thank their lordships for the amendments they have made to the Bill.
As I was sitting here listening to the Minister opening the debate, I found it rather ironic that we are discussing minimum service levels when the Conservative party’s Back Benchers have literally not turned up for this debate. Other than Bill and Ben, the PPS flower pot men, there are literally no other Conservative MPs here to scrutinise this legislation. If the Government want to talk about minimum service levels, let us have Conservative MPs who campaigned for Brexit by talking about Parliament taking back control coming here to talk about the horrific Henry VIII powers that give unprecedented power to a Secretary of State who would be completely out of control.
My hon. Friend the Member for Kilmarnock and Loudoun mentioned that statistically, when we look at the amount of industrial action that has happened across these islands, Scotland has had the lowest. That is because we take a partnership approach with trade unions. Yes, there are times when the Scottish Government and local authorities in Scotland will have difficult conversations with trade unions, but by and large we understand that the best way to resolve those disputes is to come to the table, not to use legislation as a way of trying to strike down the trade unions and to big up the likes of Mick Lynch and Sharon Graham as some sort of bogeyman or Grinch. That is exactly what this Bill is designed to do. It is designed to be a wedge issue for the next general election, and that is why it is so important that Labour Members stand up and oppose this Bill, even if they cannot stand on picket lines.
Lords amendment 1 relates to the principle of devolution. I was certainly heartened by what we heard earlier about the opposition to Lords amendment 1, but the reality is that First Minister Humza Yousaf, First Minister Mark Drakeford in Wales and the Governments in both Wales and Scotland have outlined their absolute opposition to this Bill, which we consider to be an affront to democracy and to the basic fundamental human right to withdraw one’s labour. That is one reason I would like to see employment law devolved to the Administrations in Edinburgh and Cardiff. It is good enough for Northern Ireland. Let us not forget that because of the territorial application of this Bill, we will find ourselves in the ridiculous situation where healthcare staff who go on strike in Scotland, England and Wales will be subject to the sack, whereas people in Northern Ireland who choose to use their fundamental human right to withdraw their labour will not. For a Government who talk about how important the Union is and how important it is that we do not have divergence of policy, this does rather fly in the face of that argument.
Tonight we will vote against all the Government’s motions on the Lords amendments they are opposing, but when the Bill goes back to the other place, I urge their lordships to hold firm against this Government. They should not give in, because Parliament was told we would be taking back control, and all we are seeing is a Government running out of control and running roughshod over some of our most basic rights. Of course, we were told Brexit was all about strengthening employment rights. The Government talk about that, but what they have brought forward is this tawdry Bill, which once again tramples all over people, just as Thatcher tried to do.
The warning to people in Scotland is that, for so long as they continue to have Conservative Governments they did not vote for—indeed, they have not voted for them since 1955—they will continue to get legislation that tramples on workers’ rights. The only way to protect our Parliament and to protect our workers’ rights is with the powers of independence, not Tories whom we did not elect.
Christine Jardine
I rise to support the Lords amendments and to oppose the Government’s intention of rejecting them. I am no longer a trade union member, but I was, so a lot of this Bill offends my belief in the right of the individual to withdraw their labour and the rights of the trade unions.
Lords amendments 4 and 5 would tackle the unfair obligation on the trade unions to ensure that members comply with a work notice. The thought of sacking anyone for going on strike is particularly difficult for me, because I actually have experience of that. I have experience of my husband being sacked, in 1989-90 in Aberdeen, because he went on strike. I know the damage it did to us and to a lot of people’s careers. To take away the right to object to what people believe is an unfair practice or to ask for better pay is, to me, a contravention of rights that people have fought long and hard for in this country. So I will be voting no on those two motions, as will the other Liberal Democrats.
On Lords amendment 1—
Alan Brown
The hon. Member is coming on to Lords amendment 1, and I hope she will support that amendment on the Bill’s territorial extent. Has she had time to think further about the earlier point that the logical extension of the Liberal Democrats supporting amendment 1 is the devolution of employment law to Scotland?
Christine Jardine
I thank the hon. Member for his intervention, but remind him that we are here to discuss this Bill and its implications, which are very serious. Yet again, there is an attempt to divert us on to the constitutional issue, which in this particular instance is not appropriate. Yes, I will be voting against—
Christine Jardine
Not at the moment, thank you. I have not actually finished speaking—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. For the sake of clarity, may I say that the hon. Lady is absolutely right? This is a very narrow debate on these Lords amendments.
Christine Jardine
Thank you very much, Madam Deputy Speaker.
I will tell the House exactly how we are going to vote: we will vote no on the Government motion to disagree with Lords amendment 1. Like the Labour party, we are very proud of the devolution settlement in Scotland and the achievement of devolution in Scotland and in Wales, which I would remind SNP Members they actually opposed at the time. They campaigned against it, because they were in favour of independence and did not want devolution, so the commission did not involve them. But that is not what we are here to talk about. We are here to talk about this Bill.
Christine Jardine
No, thank you.
The Bill is fundamentally flawed, not least in the fact that it will do nothing to address the current shortfalls in employment in the public sector. It will do nothing to protect the rights of patients in hospitals, which as the right hon. Member for Ashton-under-Lyne (Angela Rayner) said, are what the nurses who have been on strike are seeking to protect. It will do nothing to help them.
The arguments against this Bill were rehearsed thoroughly on Second Reading, and I do not want to spend too much time going through them again, but I pay tribute to the Lords for their amendments, which do go some way to addressing the failings that so many of us identified on Second Reading. The Liberal Democrats will be voting no to the Government’s attempts to reject the Lords amendments, because they would improve what is a flawed—I believe, fundamentally flawed—Bill.
Sam Tarry (Ilford South) (Lab)
In its original form, this Bill represented what many call a sackers charter, because it was a mishmash of unworkable draconian assault on workers’ rights. I would say it is one of the biggest setbacks for workers’ rights in generations. If it passes, it will shackle trade unions, ordinary workers and a whole list of people struggling for fair wages in so many sectors of our economy. It will place unacceptable restrictions on the fundamental right for workers to withdraw their labour, and to defend their and their colleagues’ pay, which at the moment mostly seems to mean defending themselves from the Government’s inability to offer fair pay rises in so much of our public sector.
Worst of all, particularly in a sector such as the railways, the Bill will worsen industrial relations, create more delays on rail and create a worse situation for passengers. It will worsen industrial relations overall. I note that one union did successfully get a decent pay rise, because the Government clearly could not stomach the fight with it. It was our beloved firefighters who did actually get a decent raise out of this Government.
This Bill is anti-democratic because it gives the Secretary of State enormous power to define and introduce minimum service requirements. It is draconian because, in its original form, workers could be sacked for participating in industrial action supported through their own democratic processes. By the way, with trade unions facing enormous damages, we should bear in mind that they are the biggest voluntary organisation movement in this country, with more than 6 million people, and the majority of the reps do not get a single penny for the trade union work they do.
The Bill is also counterproductive, because the Government’s own analysis says that minimum service levels could lead to more strikes and more non-strike industrial action—in other words, action short of strike—so what on earth is the point of going ahead with it? It is unnecessary to its very core, because it is already custom and practice, especially in the NHS and the blue light services, for cover to be agreed by unions during industrial disputes.
Rachael Maskell
I am grateful to my hon. Friend for giving way on that very point, because I used to negotiate those deals with employers when I was head of health at Unite. Those negotiations are about the relationship that we build between the employer and the worker, but that will not be possible under the Bill, which is why employers have asked that it does not proceed.
Sam Tarry
My hon. Friend makes a very good point. When we cast around for anybody actually supporting the Bill who is not a Minister or on the Conservative Benches, we struggle to find anyone. In fact, the Rail Safety and Standards Board chief executive has said nobody thinks this is workable and that it will worsen industrial action. The chief executive of Greater Anglia, who is obviously involved in the railway industry, has said nobody —nobody—in the whole of the rail industry has even asked for this. Then, as we heard from my right hon. Friend the Member for Ashton-under-Lyne (Angela Rayner) and many other Members who have spoken, there are the condemnations from the ILO general secretary.
This attack on rights is making our country an international laughing stock. The Government have said many times that the Bill matches or is very similar to some of the minimum service level processes in many other countries, but there is not a single person in Europe saying this is good idea, because it is not anything like what is in place in comparable countries around the world—not at all. One in five workers could be covered by this Bill’s provisions. They are the nurses, firefighters, teachers, paramedics, rail workers, civil servants and key workers the Government praised during the pandemic, who are all at risk of arbitrary dismissal. What a slap in the face for the heroes we clapped for weeks on end during the pandemic.
Let me turn to Lords amendment 4, on unfair dismissal. Currently, workers who are on strike are automatically deemed to be unfairly dismissed if they are sacked when taking part in an official, lawful strike. The Bill as introduced would remove that protection for those named by an employer in a work notice. It would mean that someone disciplined for not following a work notice could lose their job and then their livelihood. Lords amendment 4 is much fairer. It would reverse that measure and prevent the failure to comply with a work notice from being regarded as a breach of contract or constituting lawful grounds for dismissal. To be fair to the Government, I have not heard even them say that people should be sacked for trying to enact democratic rights. That would be a U-turn on what the Government said when minimum service level legislation was first brought forward. It was pledged in the 2019 Queen’s speech that
“sanctions are not directed at individual workers.”
The Bill clearly does do that, but the Lords amendment would help the Government to develop the policy set out in their own manifesto, so why not go ahead and back it tonight?
Mick Whitley (Birkenhead) (Lab)
I declare an interest as a trade unionist with more than 50 years’ experience and as a proud member of Unite the Union. I rise to speak in support of amendments 5 and 4, tabled by Lord Collins and Baroness O’Grady, among others, but before I turn to the substance of those important and thoughtful amendments, I want to say that no number of amendments could ever make the Bill acceptable to those of us on this side of the House who believe in the fundamental right of workers to pursue fair and equitable treatment at work. Its central purpose—to prevent workers from exercising their right to take strike action—is an affront to the most basic principles of democracy, and the idea of forcing a worker to cross their own picket line strikes at the heart of trade unionism.
Not for the first time, this Government have suffered the ignominy of being condemned by the international community for their deviation from democratic norms, with 121 politicians from more than 18 countries recently condemning what they described as the
“the UK Government’s attempt to limit workers’ rights and its attempt to justify it with comparisons to international norms.”
The Bill’s specific provisions, especially those that seek to make unions liable for the actions of their members who fail to adhere to work notices, betray an utter ignorance on the part of Ministers about the nature of employment relations in the UK. The Bill is opposed not just by the trade unions, but by the vast majority of the business community. Paul Nowak, general secretary of the TUC, expressed the feelings of many when he said that the Bill will serve only to poison industrial relations in this country and exacerbate the disputes that it seeks to end. This is yet another dangerous gimmick from a Government who at every stage have refused to settle demands for fair pay from public sector workers.
I want to single out Lords amendment 4, tabled by Baroness O’Grady, which would provide a much-needed safeguard for workers from the almost inevitable exploitation of work notices by unscrupulous employers. Amendment 5, tabled by Lord Collins, would excise proposed new section 234E, which would oblige trade unions to ensure that their members comply with a work notice. That is surely one of the most abhorrent measures in the entire Bill. It would in effect compel trade unions to undermine the effectiveness of their own lawful actions. It is a proposal as ludicrous as it is alarming and it should be consigned to the scrapheap.
I have closely followed the contributions in the other place concerning the Bill and salute the attempts to mitigate the worst excesses of what nevertheless remains a vindictive, anti-democratic and unworkable piece of legislation. I have no doubt whatever that Government Members will refuse altogether to listen to the concerns raised in the other place, and I say with absolute certainty that the Government will shortly come to regret this deplorable attempt to restrict the rights of their citizens.
Stephanie Peacock (Barnsley East) (Lab)
I am pleased to speak in this important debate in support of Lords amendments 4 and 5 to the minimum service levels Bill. As a proud member of a trade union, I refer the House to my entry in the Register of Members’ Financial Interests.
The Bill is a fundamental attack on working people’s rights and freedoms, meaning that workers are at risk of being punished for exercising their right to strike. As someone who has been on strike as a teacher, I know that the decision to withdraw labour is not an easy one; it is a last resort when workers feel they have no other option; when conditions and pay are no longer tolerable.
The Bill would make seeking an injunction easier and broaden the circumstances that allow this process to take place. Therefore, where strikes are fairly balloted and otherwise lawful, employers would have more scope to be able to bring an injunction against trade unions under the Trade Union and Labour Relations (Consolidation) Act 1992, potentially putting a stop to fair industrial action and flying in the face of fundamental workers’ rights. As the Bill broadens the circumstances under which minimum service levels apply, that means a poor employer could issue a work notice where one is not needed, to workers they know are part of the trade union, and sack them for failure to comply with the notice when they strike, as they are likely to do. The Bill allows scope for bad employers to use loopholes to target specific employees. Amendment 4 seeks to prevent this from being possible; it would be a huge backward step. Amendment 5 aims to ensure that unions are not obliged to ensure that their members have to comply with work notices, which would undermine their own otherwise lawful strikes.
Furthermore, the Joint Committee on Human Rights says that the penalties imposed on trade unions and workers for failing to comply with work notices are “severe” and that the Bill would be likely to lead to disproportionate involvement from employers, particularly where a strike does not involve risk to life and limb. The Committee said that the Government should reconsider whether “less severe measures” would be more effective. Lords amendment 4 would prevent workers from being vulnerable to dismissal for failure to comply with a work order.
The Bill is unworkable and the Government know it. The Transport Secretary admits that it will not work, the Education Secretary does not want it and the Government’s own regulatory watchdog has called it “unfit for purpose”. It offers no solutions and it would not have prevented the recent wave of industrial action. It is a distraction from 13 years of failure. So why are the Government insisting on pushing ahead? They have rushed this through Parliament, presented the findings of the impact assessment to the Bill late and provided only four and a half hours for the Committee of the whole House.
There are serious concerns about how the Bill will be implemented in practice. In countries such as Spain and France that already have minimum service levels in place, more days have been lost to strikes than in the UK and that can lead to legal battles, which further delay solutions to industrial action.
In 1984, striking mineworkers in Barnsley were branded “the enemy within” by the Government when they went on strike to defend their industry. We still feel the economic effects of that political attack. Today, the Government are again blaming hard-working people—this time, for the Government’s economic failure.
Richard Burgon (Leeds East) (Lab)
I rise to speak in support of all the Lords amendments, but I especially want to focus on Lords amendment 4 and Lords amendments 5 to 7, because they are about protecting two key democratic principles: the rights of the worker to withdraw their labour; and the role of trade unions to represent workers—and not bosses and not the Government—when workers decide to withdraw their labour.
Lords amendment 4 would mean that a failure to comply with a work notice would not be deemed to be a breach of an employment contract, so the person could not be dismissed as a result. Lords amendments 5 to 7 would ensure that trade unions do not have any responsibility to ensure that their members comply with the work notice. We need to be clear about what the Bill is about and why the Lords amendments are necessary. The Bill is about perverting the role of trade unions in our democratic society. It is about trying to turn the trade unions into not the servants of workers, but the servants of bosses, or even the servants of a Conservative Government.
Karl Turner (Kingston upon Hull East) (Lab)
I congratulate my hon. Friend on making an incredibly good speech. I was not trying to intervene; I was suggesting that, if the Minister had something to say, I am sure that my hon. Friend would be happy to give way to him.
Richard Burgon
I would. My hon. Friend is always light on his feet in the Chamber, as he has shown, but I would be happy to give way to the Minister if he has anything of merit to say as this pernicious piece of legislation passes through with no acceptance by the Government of the common-sense and democratic decency of the amendments from the other place. Their anti-strikes Bill is no one-off—this is why the Lords amendments are so necessary. It is part of an authoritarian drift by a Government who, as we have heard, are desperate to close off any challenges to their reactionary agenda, be that at the ballot box, on the picket line or on protests.
The Bill, this attack on the right to strike, follows restrictions on the right to vote through the disgraceful voter suppression strategy. It follows restrictions on the right to protest through the disgraceful Public Order Act 2023. This anti-strikes Bill, like the Public Order Act and voter ID, should be thrown into the dustbin of history.
It is deeply concerning that, in 2023, we are having to rely on members in the other place to send these Lords amendments back when we are facing such draconian attacks on democratic rights, including the democratic right to strike, the democratic freedom to withdraw labour and the democratic role of trade unions to represent their members—workers, not bosses and not the Conservative Government.
I end by refuting the Government’s empty claim that this legislation is really about bringing the UK into line with International Labour Organisation norms. That is absolutely not the case. I previously tabled an amendment, backed by 30 Members on a cross-party basis, to prevent this legislation from being enacted until a judge had certified that the UK was meeting its International Labour Organisation obligations. The Government refused to accept that amendment; I wonder why. Perhaps it is because they know that their claim that the Bill brings us into line with other countries and International Labour Organisation standards is hollow rhetoric. The truth, as the European Trade Union Confederation has said, is that
“The UK already has among the most draconian restrictions on the right to strike in Europe, and the UK government’s plans would push it even further away from normal, democratic practice across Europe.”
Members do not need to be trade unionists to understand the common sense and democratic decency of these Lords amendments, and they certainly do not need to be socialists. Any Member of this House who values the hard-won freedoms of individual workers and trade unions in our society should back these Lords amendments. Not to do so would be completely shameful and go against the hard-won democratic freedoms that we have secured in this country through struggle. Indeed, it is shameful that we have had to protest outside Parliament today and to argue for those freedoms in this Chamber tonight.
Chris Stephens
Let me start by referring the House to my entry in the Register of Members’ Interests and the fact that I am a proud member of the Glasgow city branch of Unison, one of the largest trade unions across these islands.
Like many other Members, including my hon. Friend the Member for Glasgow East (David Linden), I am completely puzzled as to why there seems to be industrial action on the Government Benches every time we discuss industrial action law. Could it be that Government Members are so outraged by this Bill, and indeed support the Lords amendments, that they are at the TUC rally outside? I doubt it somewhat. Or is it simply the fact—as I believe to be the case—that Government Back Benchers do not have the confidence in their own arguments for this legislation to come here and defend the Government’s position?
It seems that the unelected House—the comrades in ermine down the corridor—has a greater understanding of what happens in workplaces across these islands than the Government do, and we can see that in some of the amendments. It is quite incredible that the Government oppose an amendment that would make it the employer’s responsibility to serve a work notice. The Government then say that they want to keep the measures in the Bill for dismissing a worker. This is quite incredible.
Imagine the scene. The day after industrial action, a poor individual who went on strike goes back to their work and is asked by the employer, “Where were you yesterday?” They are going to answer, “I was on strike.” But they are then told, “Well, you were served a work notice,” and that person will rightly say, “Where’s the proof from you as the employer that I was served a work notice?” The employer is going to say, “Under the legislation, we don’t need to serve the work notice, but we have the right to dismiss you, because we think you should have been served one,” and they will end up being dismissed—with no right, incidentally, as I understand the legislation, to an employment tribunal. You really could not make this up.
The Government also oppose a sensible amendment to ensure oversight of the powers in the Bill. A Government who are confident in their own legislation should welcome an amendment to ensure oversight of the Bill and a Committee of each House to look at how the powers are exercised. Of course, as the Minister has indicated, he opposes that Lords amendment, too.
Then we have Lords amendment 1. I heard the Minister say that industrial relations is reserved. Well, not quite, Minister, because when there are elections to Scotland’s Parliament or the Senedd in Wales, political parties—at least the sensible and good ones—will have in their manifestos how industrial relations should be addressed in areas of devolved competence. That would seem the sensible approach for a good political party to take, which is why there are debates in both those devolved Parliaments about the fair work agenda. We should have more of those debates in this place—but of course, the Government would not know fair work or the fair work agenda if it crossed them in the street.
The reason I think the Lords have got it right in their amendment 1 is that the Government seem to believe, and take the position, that they know better than the Scottish Parliament or the Welsh Senedd about devolved areas of responsibility. In seeking to reject Lords amendment 1, the Government are arguing that Ministers at Westminster level have the expertise to know what the minimum service levels should be in transport, health or anything else in Scotland or Wales, when they cannot even manage their own minimum service levels in this Chamber. What chance have we got that they will understand?
If anyone seriously believes that a Minister in this place has an understanding of what the minimum service level should be in a devolved competence, then I would suggest that they must be a right Michael Blackley. Frankly, you could not make it up. It is laughable position, and the Lords have got it right. In this respect, the law should apply to England only, and then England’s representatives should decide whether, possibly, the legislation should apply at all.
Alison Thewliss (Glasgow Central) (SNP)
My hon. Friend is making excellent points about the importance of industrial relations and Scotland having the expertise to deal with that. Does he agree that industrial relations in Scotland in recent years have been much improved on the situation under the Westminster Government, certainly in negotiating pay and conditions for workers in Scotland?
Chris Stephens
I thank my constituency neighbour for that excellent intervention, because as my good Friends the Members for Glasgow East and for Kilmarnock and Loudoun (Alan Brown) indicated earlier, the area of the United Kingdom with the least industrial action is Scotland. That is because there seems to be a mature relationship between employers and trade unions in Scotland—far more mature, it would seem, than in England, for example, where we see Government Ministers bashing trade unions on a daily basis on the sofas of breakfast television.
I want to end my remarks, because I am conscious that others want to speak in this debate. The fact that the Government want to dismiss workers for exercising the human right to withdraw their labour is what makes this an absolutely despicable and disgraceful piece of legislation, which would tie them in with countries such as Russia and Hungary. We might think that those are not examples that the Government should follow. It seems quite frankly bizarre that they do want to follow them. I will be in the No Lobby tonight, because I agree with these Lords amendments.
Ian Lavery (Wansbeck) (Lab)
I would like to declare my interests as a proud trade union member all of my life.
Obviously I want to discuss the amendments from the other place, but I have to say that this should basically be classed as the anti-strike Bill. This is a Bill that very few people want, far less like. Despite the fact that there are very few people on the Government Benches, we will watch them flow through the Lobby tonight—again, to attack working people of this country. Nor should we be surprised by any of this, because when the Government are down—when they are out; when they are under pressure; when they are out of steam and have nothing left to say, after 13 years of destruction of this country—what can bring them together? The answer is attacking trade unions, attacking working people and, we should not forget—and we will never forget—attacking key workers, because that is what this Bill does. It is about culture wars and politics of distraction. Like rats when cornered, they revert to type.
The amendments from the other place are extremely important. The thinking behind each of the amendments is that people understand the real intentions of the Bill. They are not what has been suggested by the Minister and others on the Government Benches. We need to be honest about what the Bill is actually about.
Andy McDonald
Does my hon. Friend agree that, given the significant amount of industrial unrest over the last several months and, indeed, years, where people do not think they are listened to, the introduction of this legislation will deepen their resolve? They will show by their actions that they will not tolerate an attack on their freedoms and their basic employment and human rights.
Ian Lavery
It is extremely important that people understand that once we see nurses, doctors, teachers and key workers facing the sack, there will be resistance in this country. I kid you not, there will be resistance in this country like we have never seen before, because these are basic human rights. We cannot instruct ordinary hard-working people; key workers; the people who got us through the pandemic; the people who put the Great in Great Britain. We cannot, under any circumstances, allow this legislation to sack individuals.
Lords amendment 4 refers to the work notice. My friend, the hon. Member for Glasgow South West (Chris Stephens), eloquently made the point about the notification of a work notice. If someone has not had notification of a work notice, how could they ever be accused of breaching it if they are not aware that they have it? This is pretty simple stuff. I am not a barrister or a solicitor, but I understand it. And you know what, Mr Deputy Speaker, the Members on the Government Benches understand it, too. There is no doubt about that. When those people are asked the following day, “Why weren’t you here? You had a work notice,” and they reply, “I didn’t have one”, they will be told, “You did. How did you not understand that?” They can be sacked for that. Under this legislation, they can be sacked for not adhering to something that they did not even know they were part of. How bad is that?
Chris Stephens
It is actually worse than the hon. Gentleman is presenting it, because the person dismissed would not have the right to go to an employment tribunal.
Ian Lavery
Absolutely. I fully agree with those sentiments.
When employers are considering who they might wish to give the work notice to, Lords amendment 3 suggests that when deciding whether to identify a person in a work notice, an employer cannot consider whether the person “has or has not” taken part in trade union activities, made use of their services or had a trade union raise issues on their behalf. That amendment should not be needed in the UK in 2023, because everybody clearly understands that if bosses give work notices, they have a clear idea who they will give them to: the trade union reps and the people who do not have a fantastic employment record. That is why that Lords amendment about who the company identifies for a work notice is really important.
In reality, this legislation is simply a battering ram against ordinary working people. I have mentioned the resistance that will be shown in this country if we start sacking the nurses, the teachers and the posties. Blaming the posties for breaking the universal service obligation; blaming the teachers for education in their classes; blaming the nurses for the backlog—you name it, that is what the bosses will do. That will start under this legislation, as they will have the power to sack people. This is a sackers charter, no doubt about that, criminalising our heroic workers.
There will be resistance like we have never seen before. The difference is that the public are on the side of the workers on this one, so be ready. I raise a stark warning: be ready. When the bosses have the books out, ready to sack individuals, and when the Government are telling them who to sack and what the reasons might be, they should be ready for the resistance, because there will be huge issues. How can the Government expect a trade union to take responsibility for individuals who might not want to accept a basic human right? It is bizarre. It is absolutely crazy. I am trying to explain it, but it is very difficult; it is not simple. The trade unions have a huge role to play.
The Bill not only escalates an already febrile atmosphere in this country; it is a vicious attempt the pin the problems that we have on trade unions, from a party that has completely run out of steam. When will the Government start doing their job, for heaven’s sake? How many more hospital appointments need to be set back? How many teachers need to be made redundant or letters and parcels be delivered late before they stop making excuses and demonising workers, and get on with the job that they were elected to do?
Rachael Maskell
My hon. Friend is making an outstanding speech about the reality of industrial relations. Does he agree that trade unions do not have any jurisdiction over their members; it is the members who have the jurisdiction over the trade unions? Therefore, it is for the members to decide what action they take or do not take. The Government do not seem to get it.
Ian Lavery
My hon. Friend makes a good and valid point that the trade unions are the workers themselves. It is as simple as that.
In conclusion, will Government Members tell us why we are not having a minimum service Bill for non-strike days? In the past year or so, in particular when the paramedics and ambulance workers have gone on strike, efficiency has increased and has been first class on strike days. On non-strike days, like the 360-odd days other than those strike days, unfortunately what we see is people lying on pavements or having heart attacks who cannot get an ambulance. Let us look at a Bill for non-striking days so we can enhance the efficiency of all of the services outlined tonight. If the Minister did that, he would get our support.
Kevin Hollinrake
I thank all Members, on both sides of the House, for the robust debate we have had as the legislation has passed through both Houses. It is fair to say that the discussion and debate about the legislation has pretty much divided along party political lines. Our position is that this legislation strikes a balance between the right to strike and the right of the public to go about their daily business and daily lives.
It is also fair to say that we could have chosen an option that went much further. As I said earlier, the USA, Australia and Canada have completely banned strikes in certain sectors, prohibiting them completely. Spain and Belgium have similar legislation on minimum service levels. Indeed, in France there are penalties of up to six months in jail for anyone who is under a requisition notice to return to work.
It is interesting that many Opposition Members have talked about restricting the right to strike. Well, we already restrict the right to strike for the armed forces, the police and prison officers. Will Opposition Members repeal that legislation to allow people who work in those parts of our society to strike? There are already some restrictions; we are putting in place sensible restrictions that are already in place in many other countries.
The guidance from the International Labour Organisation says:
“A minimum service may be set up in the event of a strike, the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population.”
It is clear the ILO supports the kinds of measures we are putting in place. I have heard Opposition Members say that no one wants this legislation but interestingly, when surveyed, 56% of the public say that they do, against 31% who do not.
Earlier today, the deputy Leader of the Opposition tweeted her support for the 121 politicians who have condemned the Bill. May I gently urge her to look at some of the people who signed that letter? Some of those signatories are anti-Zelensky, anti-Ukraine, anti-Israel and pro-Russia. I urge her to look at that again and withdraw her tweet.
We believe the legislation strikes the right balance between the right to strike and the rights of the public to go about their daily business and protect their livelihoods. There have been over £3 billion of costs to our economy because of these strikes, which is putting many businesses and many jobs in danger. The Bill presents a fair balance between the rights of workers and the rights of the public.
Chris Stephens
The Minister is generous in giving way. He mentions balance. Can he tell me what is balanced about a piece of legislation, which he supports, whereby an employee who does not get a work notice can be dismissed?
Kevin Hollinrake
There have to be measures that employers can use to make sure people comply with the work notice—that is how it works in many other countries. The reality is that nobody will be sacked as a result of the legislation. There are other disciplinary measures that can take place. We already have derogations in place on a voluntary basis that do not always prove ineffective. We are formalising the process to allow these measures to take place in other vital public services.
The amendments would make the legislation ineffective, which is why I urge all Members on both sides of the House to vote with us and disagree with the amendments.
Question put, That this House disagrees with Lords amendment 1.
Strikes (Minimum Service Levels) Bill
Thursday 8th June 2023
(10 months, 3 weeks ago)
Lords ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 141-I Motions for Consideration of Commons Reasons - (7 Jun 2023)
14:00 - Division on Motion B1 - Ayes: 182 / Noes: 150 - Motion B1 agreed.
14:46 - Division on Motion C1 - Ayes: 180 / Noes: 150 - Motion C1 agreed.
14:47 - Division on Motion D1 - Ayes: 179 / Noes: 148 - Motion D1 agreed.
Lord Callanan
That this House do not insist on its Amendment 1 to which the Commons have disagreed for their Reason 1A.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, with the leave of the House I will also speak to Motion B. I will speak to both the Motions to not insist on these amendments and to resist Motions A1 and B1, which are amendments in lieu tabled by the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Fox.
I am delighted to be in the Chamber again following the consideration of this House’s amendments to the Bill in the other place. Although there was a thorough debate of these amendments and those we will look at next, they have been thoroughly rejected by the other place, which has resolved against amendments that would either delay implementation of the Bill or prevent it from achieving any of its policy objectives.
I recognise that this is a topic that Members of both Houses are passionate about and I agree with my colleague, the Minister for Enterprise, Markets and Small Business, that we have had a robust debate on it. However, I point out to the House that the other place resolved against these amendments by significant majorities of 61 and 55 respectively, which are significantly larger than the majorities of 24 and 31 that amended the Bill in the first place. That is also the case for the amendments that we will discuss in the next group. The elected Chamber has therefore given the Bill and the amendments made here its due consideration and Members there have made the position of their House very clear.
The House will be delighted to know that I do not intend to repeat the debate and the arguments that we have heard on the detail of the Bill here; the Government have already clearly set out their intentions and perspective here, which are reflected in the reasons for disagreement that have come back to us. The Government’s position, and that of the elected Chamber, is clear and I can confirm that the Government have no plans to concede on these issues given the ongoing industrial disputes that show the need for this Bill now more than ever. I therefore ask that noble Lords respect the clear wishes of the other place and, while of course I am always grateful for noble Lords’ insight, passion and expertise on this matter, I hope that this House does not insist on these amendments.
I will now address the amendments in lieu that have been tabled. I thank the noble and learned Lord, Lord Thomas, for his Motion A1, which seeks to limit the application of this Bill to England only, unless the Scottish Parliament and Senedd Cymru agree by resolution for it to apply in those nations. The noble and learned Lord submitted a similar amendment on Report and the Government continue to resist this change for the reasons that I set out then.
First, it is a statutory discretion for the employer as to whether to issue a work notice, taking into account any other legal requirements that the employer may have. However, more fundamentally, the purpose and substance of the Bill is to regulate employment rights and duties and industrial relations. This is a reserved matter, so the consent of devolved Parliaments for this legislation is rightly not required. To add in a requirement for this, as the amendment seeks to do, would create significant inconsistency with wider employment law and I suggest that it would also disturb the careful balance of the UK’s devolution settlement. We will of course, as we have throughout the passage of the Bill, continue to seek to engage with the devolved Governments as part of the development of minimum service levels in those areas.
Finally, Motion B1, tabled by the noble Lord, Lord Fox, relates to additional consultation requirements, assessment of impacts of the legislation and parliamentary scrutiny. As has been made clear to this House many times, sufficient checks and balances are already built into the legislation before regulations can be made. Motion B1 would delay implementation of minimum service levels for an indefinite period and thus extend the disproportionate impact that strikes can have on the public. I am afraid that the Government simply cannot accept that.
This Government recognise the significant role that the UK Parliament has played in scrutinising instruments. New Section 234F already ensures that the regulations will receive the appropriate level of scrutiny by both Houses and are subject to usual processes for consultation. I therefore urge this House not to amend the Bill in such a way that would cause significant delay to implementing minimum service levels, use up precious parliamentary time to duplicate parliamentary procedures and set some unhelpful precedents for future legislation. For all those reasons, the Government resist Motions A1 and B1 and I hope that noble Lords will agree not to press them. I beg to move.
Motion A1 (as an amendment to Motion A)
Lord Thomas of Cwmgiedd
Moved by
At end insert “and do propose Amendment 1B in lieu—
Lord Thomas of Cwmgiedd (CB)
My Lords, as this is the first occasion on which a devolution issue has arisen this week, let me make one short observation about the enormous contribution that Lord Morris of Aberavon made to devolution and to using and utilising devolution within the context of the United Kingdom. He can truly be regarded as a father of Welsh devolution and he made an enormous contribution to strengthening the position of Wales within the union.
I turn to my Motion. There are six brief points that I wish to make—and they will be brief, I must emphasise. First, this is not a reserved matter; I fundamentally disagree with the position stated by the Government. If we look at the reality of this Bill, it is not to do with employment rights; it is plainly to do with services in Wales and Scotland. Indeed, it covers the most important services that are devolved. The legislation therefore did require a Sewel Motion and, as we know, that has not been forthcoming.
Secondly, the fact that the Government are prepared to legislate without observing the Sewel convention is, I regret to say, another illustration of the ignoring of this convention and, more generally, the Government’s action in ignoring conventions that underpin our unwritten constitution, putting it in danger. Actions of this kind are imperilling the union, which is the bedrock of our constitution.
Thirdly, and more fundamentally, what is being done is undemocratic. The Scottish Parliament and Senedd Cymru are responsible and accountable for the very services for which this legislation is being brought forward.
Fourthly, the extension of this Bill to Wales and Scotland is bad for the people of Wales and Scotland. If we look at this as a matter of practical reality, the UK Government are the Government of England in respect of these services. They know nothing about education, health, ambulances or the fire service in Wales, or the relationships with staff and employees and how the services run. It is structured differently in England from how it is structured in Wales and Scotland.
Fifthly, I think that it is disingenuous again to say that employers in Scotland and Wales can choose whether to give a work notice. As the Minister in the other place made clear, it is not in the Government’s view a free choice. Employers must consider contractual public law and other legal duties that they have. If this Government’s view is right—I do not agree with it—there is the unspoken consequence of legal action against those who fail in their duties. That is a real threat to the Governments in Scotland and Wales and their ability to manage a service in a way that is in the real interests of the people.
Sixthly, and finally, what this Bill does, in applying its provisions to Scotland and Wales, is to take away power from those who have a responsibility for the management of the relationship and who are accountable to their electorate.
However, on this issue of devolution, the Government —as the Minister made clear just now—have not moved, and plainly do not intend to move, an iota. They maintain their characteristic disdain for devolution. They continue to legislate to override the devolution arrangements. I think that it can be said that they believe with a singular superiority that they know better what is right for Wales and Scotland than their democratically elected Governments and Parliaments do. They seem not to care for the long-term consequences of this persistent conduct.
For these reasons, although it is regrettable for our constitution, union and democracy, unless others urge me to take a different view, I see no point in seeking to divide the House on issues on which the Government do not appear to wish to engage. By using their majority in the other place, they can impose their will on Scotland and Wales, which the Governments and Parliaments of Scotland and Wales do not want.
Lord Wigley (PC)
My Lords, I will intervene very briefly, as I did at earlier stages of the Bill, having taken good note of the comments made by the noble and learned Lord, Lord Thomas of Cwmgiedd.
I press on the Government the question of the definition of reserved powers. This goes broader than this amendment and may be something that needs to be looked at in another context, in its own right. Under those circumstances, I accept the lead that has been given by the amendment of the noble and learned Lord, Lord Thomas, and I hope the Government keep the issue alive in their mind.
Baroness Randerson (LD)
My Lords, I thank the noble and learned Lord, Lord Thomas, for moving this amendment. I too will be brief. It is important to restate the principles involved here. The Bill is one of a series from this Government that trespass boldly—I would say foolishly—on devolution. The United Kingdom Internal Market Act, the Procurement Bill and the Retained EU Law (Revocation and Reform) Bill do so distinctly, but this Bill takes it to another level. The overwhelming majority of the list of services for which it seeks to set minimum standards and take control are devolved services, and the noble and learned Lord spoke about this. Add to this the Government’s habit of ignoring the need for legislative consent Motions and we are well on the way to a constitutional crisis, which this Government seem openly to invite.
Even now, the Government do not seem to have decided how to develop and impose minimum service levels. Back in March, the Constitution Committee expressed surprise at this in its report, and it is significant that we are still at this point in June. It is nonsense to imagine that the Government can impose minimum service levels, in effect from a distance, on a service for which they have no responsibility at any level, and, in the case of Welsh-medium education, for which they do not even understand the language in which the rules and standards are written.
As it stands, the Bill is unworkable and damaging. The noble and learned Lord’s original amendment, which was agreed by the House, sought to limit the scope of the Bill. The elegance of the new amendment is that it would allow the devolved Administrations to give agreement in the normal way.
In the different political climate of the past, in devolution as it used to be practised and operate, there would be discussions, co-operation, compromises and ultimately agreement between the UK Government and the devolved Administrations. There would be legislative consent Motions agreed before we agreed legislation here. The norms have gone and that is a serious problem for our future democracy.
Lord Balfe (Con)
My Lords, can I make a simple point? This is nonsense, because all the services are devolved, as has been said. I am not totally in agreement with the noble and learned Lord, Lord Thomas, but these are probably not reserved powers. Even if they were, how on earth can a Secretary of State for Health in Elephant and Castle or wherever he now lives make rules about hospitals in Glasgow, fire engines in Edinburgh or education establishments in Aberdeen? It just will not work. For that reason, I am very dubious about this legislation. It does not apply to Northern Ireland anyway. Putting it into a Bill is silly—that is the only word for it—because we are being asked to pass legislation which manifestly will do no good and will not work, and I am sorry that the Government are pursuing it.
Lord Collins of Highbury (Lab)
My Lords, it is a sad fact that this Bill so casually breaches the Sewel convention, which exists to uphold democratic accountability and provide for stable provision of public services. Wherever you live in the United Kingdom, nothing should interfere with those basic considerations. They dictate how services are designed and delivered and who has a say over them, whether that be in the hospital you are rushed to or the school you take your children to. In overriding Parliaments in Wales and Scotland, United Kingdom Ministers are treating those services as incidental or of lesser significance and weakening the say of patients and parents.
This is a problem not just for Wales and Scotland; it is a problem for England and the entire United Kingdom when the Government so regularly choose to sow confusion and division by breaching a convention that exists to help prevent both. We should not be in a position where a former Lord Chief Justice for England and Wales is forced to spell this out in relation to so many Bills. It is a measure of the Government’s consistent course that the noble and learned Lord, Lord Thomas of Cwmgiedd, is put in such a position. I hope that the points he made will be taken on board, because the road that is going to be continued with is very dangerous for the union. That is why it is so important that Ministers listen.
I want to speak also to the other Motions in this group, which I had hoped the noble Lord from the Lib Dem Benches would move because I was intending to quote him. Nevertheless, on Motion B1, on which we are to hear from the noble Lord, across this House there is serious concern that, once again, Parliament is being sidelined. It is a fundamental issue of accountability and democracy. The Regulatory Policy Committee said that the impact assessment for the Bill is “not fit for purpose” and
“makes use of assumptions in the analysis which are not supported by evidence”.
Again, policy comes later and legislation first; it is ridiculous. We should not have that sort of situation, especially as it impinges on fundamental rights, particularly the right which the Minister constantly says he is prepared to protect: the right to strike.
Employers as well as unions share concerns that the provisions are unworkable and have the opposite effect to that claimed by the Government, will damage co-operation and will undermine voluntary agreements that deliver minimum service levels, the very thing that the Bill is meant to address. This is an imposition and simply will not work. The Delegated Powers Committee said that ministerial powers to set minimum service levels through regulations and define what constitutes a relevant service are inappropriate in the absence of convincing explanation by Ministers. Throughout Report, we heard no convincing arguments on this. The fact of the matter is that, when we heard from Ministers responsible for relevant sections of the Bill, they all said that voluntary arrangements are best and that they work. But, when you undermine those voluntary arrangements, you put the public—the thing that you want to try to protect—at risk.
As the noble Lord, Lord Fox, said on Report—I will have to quote his speech from then rather than today—
“This amendment seeks to bolster Parliament’s oversight. It would require a consultation to be carried out and … reviewed by a committee of each House of Parliament”,—[Official Report, 26/4/23; col. 1223.]
prior to regulations being made. This is absolutely essential if we are to see good legislation rather than simply negative narratives. Those consulted would include relevant unions, employers and other interested parties across the United Kingdom. This is vital to ensure consistency. I conclude by saying that I hope the noble Lord, Lord Fox, will seek the support of the whole House.
Lord Fox (LD)
My Lords, I was so enjoying the debate on Motion A1 that I failed to stand up and speak to Motion B1 in my name. I apologise to the noble Lord, Lord Collins, for not providing him with sufficient up-to-date quotations, but he seemed to manage. We have spent so much time on the Bill together that we probably know how each other thinks.
We are in familiar territory, and indeed were too with Motion A1, because this is a long-repeated trope of this Government. They seek to override not only the devolved authorities but our own Parliament here. Bill after Bill has measures that take powers that should rightfully be vested in Parliament and lodge them firmly with the Executive, with very little or negligible recourse. This amendment seeks to regain that balance.
We have had similar discussions many times. I will not go over all these, but I will remind the House very briefly why, in this case, it is very important. The centrepiece of this legislation is a system of predetermined minimum service levels which may be used by employers to determine the minimum manning levels in the event of a strike. If a strike is called, specific work orders have to be or may be issued, requiring named individuals to ignore the strike and go to work. If they do not, as the Bill stands, they can be sacked.
The scale of the minimum service level is key. The nearer it is to 100% of normal service, the smaller the number of people who can legitimately and legally strike becomes—to the point that it becomes almost zero, or zero, and strikes are banned. This is not an abstract argument: if you look at certain areas of emergency care or issues such as rail track signalling, it is clear that a very high level of presenteeism will be required to run those services. In effect, those people on that work order will therefore have their right to strike banned. Speaking as a Liberal, I say that this is a libertarian issue that we find very important.
The setting of these minimum services levels is a vital part of how this Bill will operate. As the Minister has said, some non-binding consultation is under way but as things stand, to all intents and purposes the scale of the minimum service levels is the Secretary of State’s decision and theirs alone. We find that unacceptable.
The Commons declined our last amendment on the grounds that there is “adequate consultation”. We think that there is not and would like to ask the Commons to revisit that process. This amendment would require that consultation takes place and is reviewed by a committee of each House of Parliament prior to regulations being made. That consultation would be more formal and set out in some detail compared to the informal and ad hoc nature of the consultation that is going on. As we heard from the noble Lord, Lord Collins, when he was quoting me, those consulted will include the relevant unions, employers and other interested parties and would include an assessment of the impact on the rights of those workers.
The Minister talked about time and how this would wrap up the process into indefinite time. I remind your Lordships that the original Bill from which this Bill is generated started about a year ago. That Bill of course referred to what was in the Conservative Party manifesto, unlike this one, which has been broadened way beyond the scope of what was in the manifesto. The Government have shown themselves very adept at setting up time for such things to be debated, yesterday being an example. I am sure that time is not the issue—“won’t” rather than “can’t” is what we are dealing with here.
In short, we seek through this Motion to regularise the consultation process and give a mandatory role for Parliament that is far more than we see. With most Governments, this might not be controversial but with this one there has been a pattern and it is systematic, so here we seek to reassert the role of parliamentary democracy. My noble friend talked about there being the potential for a constitutional crisis around the treatment of government and the devolved authorities, I think we are already heading in the same direction with the treatment by this Government of our Parliament.
Lord Callanan (Con)
My Lords, I thank all those who have contributed. The House will be pleased to know that I do not intend to detain noble Lords for very long. We have debated these matters extensively on a number of occasions in a very rigorous manner, so I do not intend to repeat all the arguments. But, let me just say very briefly, particularly in response to the noble and learned Lord, Lord Thomas, that we are certain that the minimum service levels are a reserved matter. They are reserved because they obviously apply only when there are strikes, which fall within employment rights and industrial relations. This is clearly a reserved matter under each of the devolution settlements for Scotland and Wales. Put another way, the Bill amends the Trade Union and Labour Relations (Consolidation) Act 1992, the subject of which is specifically reserved under each of these settlements. I always hesitate to disagree with distinguished lawyers on matters of law but I am afraid that we just have a different opinion on this.
I addressed the points from the noble Lord, Lord Fox, in my opening remarks and will not repeat that. I acknowledge all those who have spoken. I understand the strength of opinion in the House on this but once again I point the House towards the other place—the elected place—and the clear will it has expressed on these matters. I urge the House not to prolong this matter unnecessarily and, while it looks as though we are going to vote on the Motion from the noble Lord, Lord Fox, I am grateful that the noble and learned Lord, Lord Thomas, indicated that he would not be dividing the House.
Lord Thomas of Cwmgiedd (CB)
I beg the House’s leave to withdraw my Motion.
Lord Callanan
That this House do not insist on its Amendment 2 to which the Commons have disagreed for their Reason 2A.
“(5) Minimum service regulations may only be made if—(a) the Secretary of State has published draft regulations;(b) the Secretary of State has conducted an impact assessment of the effect of the draft regulations on the services to which the draft regulations relate, addressing, in particular, the effect—(i) on the general public,(ii) on the conduct of these services, and(iii) on the conduct and effectiveness of the exercise of the right to strike in those services;(c) the Secretary of State has conducted a consultation with the representatives of trade unions, employers and any other interested party on the draft regulations and on the effect of the draft regulations on the services to which they relate, and in particular on the effect—(i) on the general public,(ii) on the conduct of those services, and(iii) on the conduct and effectiveness of the exercise of the right to strike in those services,and has laid before Parliament a report on that consultation;
(d) the Secretary of State has placed before a Joint Committee of both Houses of Parliament convened for the purpose of reviewing them the impact assessment under paragraph (b) and the report under paragraph (c) and the Joint Committee’s review has been published in a report to Parliament.””
Lord Fox (LD)
My Lords, having heard the arguments many times, I would still like to test the will of the House.
Lord Callanan
That this House do not insist on its Amendment 4 to which the Commons have disagreed for their Reason 4A.
Lord Callanan (Con)
My Lords, in moving Motion C, with the leave of the House, I will also speak to Motion D.
Motions C and D in my name cover this House’s Amendments 4, 5, 6 and 7, which removed key parts of the legislation that are necessary to make it effective and to ensure that minimum service levels can in fact be achieved. It is therefore unsurprising that the other place resolved against these amendments with, I remind the House once again, larger majorities than those that amended the Bill in this House. The Government continue to maintain that the approach taken by this legislation is fair and proportionate. To achieve a minimum service level, employers, workers and trade unions all have their part to play.
Motion C and the amendment in the name of the noble Baroness, Lady O’Grady, proposed in lieu of Lords Amendment 4, deal with the consequences of non-compliance with a work notice. As I have said previously, the approach taken by this legislation is fair and proportionate. It enables employers to manage instances of non-compliance in exactly the same way that they would with any other unauthorised absence.
As I have made clear on a number of occasions, an employee losing their automatic protection from unfair dismissal for industrial action, if they participated in a strike contrary to a work notice, does not automatically mean that they will be dismissed—just as failing to attend work without a valid reason normally does not mean that they will be dismissed. It simply enables employers to pursue disciplinary action if they believe it is appropriate, but it is ultimately at the discretion of the employer. I believe that this is the right approach to ensure that minimum service levels will be achieved, while protecting workers in a way that aligns with existing legislation. On that basis, I resist the amendment proposed in lieu.
On Motion D, which covers the role of trade unions, it appears in the amendment proposed in lieu of Lords Amendment 5 that the noble Lord, Lord Collins, accepts that there may be a role for unions to play in ensuring that minimum service levels can be met. However, I strongly believe that it cannot be at the discretion of a trade union as to whether and how it advises and encourages its members to comply with work notices. There must be some consequences if they do not take reasonable steps. On that basis, the Government therefore resist this amendment.
I have noted the feedback from the House, including in the Joint Committee on Human Rights. The Government are willing to consider whether there may be a case for providing further details on what “reasonable steps” are and what it means for trade unions. What we cannot do, however, is accept an amendment such as the one proposed. Without a responsibility for unions to ensure that their members comply, and without any incentives for employees to attend work on a strike day when they have been identified in a work notice, the effectiveness of this legislation is, I am afraid, severely undermined—and I suspect that is the purpose of the amendments.
I cannot therefore accept a continuation of the risk to lives and livelihoods as a result of the disproportionate impact of these strikes. I therefore ask that the House supports Motions C and D to address this, and I hope that the noble Baroness, Lady O’Grady, and the noble Lord, Lord Collins, will not move their respective Motions C1 and D1. I beg to move.
Baroness O’Grady of Upper Holloway
At end insert “and do propose Amendment 4B in lieu—
“234CA Protection of employees
(1) A person is not subject to a work notice if they have not received a copy of it in accordance with the time limits specified in section 234C(3). (2) It is for the employer to prove that the work notice was received in conformity with subsection (1).(3) An employee may not be dismissed or subjected to any detriment for failing to comply with a work notice and any such dismissal shall be treated as a dismissal to which section 152 applies and any such detriment shall be treated as a detriment to which section 146 applies.(4) A work notice does not place a contractual obligation on an employee to comply with it.””
Baroness O’Grady of Upper Holloway (Lab)
My Lords, this Motion seeks to uphold a principle long established in British law: that workers on strike are protected against the sack. Noble Lords will recall the concerns of the noble and learned Lord, Lord Judge, at Second Reading. He said that
“this is a troublesome piece of legislation. It asks us all a very simple question: when does the right to withhold your labour … cease to be a right? It answers that question too … the right ceases when, following a ministerial decree, your employer can oblige you to work, and if you fail to do so you can lose your job”.—[Official Report, 21/2/23; col. 1568.]
Not since the Second World War have a UK Government taken power to facilitate the requisitioning of people to work against their will. This would make the UK an outlier in Europe and flies in the face of human rights, equality and ILO conventions as reaffirmed by the Government in the EU–UK Trade and Cooperation Agreement. The Government have succeeded in uniting employers, unions, the devolved nations and service users against them. In the interests of transparency, I repeat that Labour is 100% committed to repealing this bad Bill.
My Motion returns to the core concern: that striking workers selected by the employer they are striking against can be forced to work or face the sack. Remember, this legislation would unilaterally change the employment contracts of potentially millions of people—and all through secondary legislation with no proper parliamentary scrutiny or accountability. Minimum service levels determined by a Secretary of State could be set up to 100% and require staffing levels to match. The union may have jumped every hurdle to secure a lawful ballot and the worker may have democratically voted to strike, but protection against the sack will be whipped away by an employer simply putting their name on a piece of paper. The worker may not even have received the work notice; there is no obligation on the employer to make sure that they do. Their automatic protection against dismissal will be annulled. This is manifestly unjust.
Remember, too, that minimum service levels apply only to strike days. For the rest of the year, a Secretary of State can close fire stations, see rail services fail, see asylum seeker backlogs grow, increase class sizes and let NHS waiting lists—shamefully now at 7.3 million—soar. I have listened carefully to the debates in both Houses. Ministers are trying to sweep the issue of sackings under the carpet.
On 10 January, the then Business Secretary Grant Shapps said it was wrong to frighten people about their jobs. The Minister has said on many occasions, including on 21 February:
“This legislation is not about sacking workers”.—[Official Report, 21/2/23; col. 1563.]
On 22 May, the Under-Secretary of State told the House of Commons that
“nobody will be sacked as a result of the legislation”.—[Official Report, Commons, 22/5/23; col. 103.]
The official reason from the Commons for rejecting my original amendment is that
“for the legislation to be effective, it is necessary for there to be consequences for an employee who fails to comply with the work notice”.
So the consequence of exercising the human right to withdraw your labour is the removal of protection against unfair dismissal. In a free society, that is chilling. The very workers Ministers thanked for their heroism during the pandemic and stood on doorsteps to clap can be punished for striking with instant dismissal.
Key workers have already sacrificed so much for the rest of us. Unless the Government accept this amendment, Ministers now expect them to sacrifice their right to strike, or pay the price with their livelihoods. I sincerely hope that my amendment will be supported in this House and that it will give the opportunity for the Government to listen and think again. I beg to move.
Lord Balfe (Con)
Noble Lords will not be surprised that I agree with the amendment as tabled. I have been a student of history for many years. You do not requisition labour except in times of dire national emergency. We did not even requisition it at the outbreak of the Second World War. Conscription did not come in until half way through the First World War. To deprive a person of the liberty to decide whether they go to work is something that is done carefully and very seldom. I think this goes far too far. It is an imposition not only on the workforce but on the trade union movement.
We spend a lot of time saying how much we want to build a prosperous Britain, but I remind noble Lords that 60%-plus of trade unionists have a higher education degree or more. We are not dealing with the trade union movement of the 1920s. We are now dealing with a trade union movement on which Britain depends for its prosperity. The people who look after the skies, fly the planes, run the National Air Traffic Service, keep our nuclear power plants going and manage our railways are highly skilled people who are in trade unions because they see a trade union as being a way of defending their interests.
Sadly for the party opposite, some one-third of them do not see that party as being the one that will deliver their political future. But that is a good thing, because I do not believe that we want sectarian trade unions. I want people to join trade unions because they want to better the welfare of their country. Taking steps such as this will just alienate people. They are not the sort of steps where people are going to be happy and say, “Oh it’s a really good thing”.
As for minimum service levels, I live in Cambridge. We seem to have had lots of strikes this year, but there has never been one that prevented me getting here, because many of the unions have a harder job keeping their people out on strike than getting the original ballot to put them on strike because, when push comes to shove, a lot of them do not wish to lose the money that they lose. So I think we need to be realistic about this.
All we are doing here is heating up the atmosphere and making it harder for the reasonable people in trade unions to make this country work. Every trade union has within it a group of people who hate strikes; they regard them as being the last thing they want, because it is a sign of failure. So I say to the Government as a whole—because it is not just this Bill—for goodness’ sake, make peace with organised labour; it is fundamentally on your side. It is much more on your side than some of the people who are contributing to the political parties of this nation and doing so for reasons which I would not say are particularly honourable. So please, Minister, send this back to the Commons and look for a compromise. I certainly will not vote for it to go again because I believe that the Commons must, in the end, have its primacy; that is why we have it. But it is quite legitimate to send this back and I ask that, when it gets there, our Ministers on our Front Bench say, “Look, there are very genuine reasons for this. Please try and give us some concessions”.
Baroness Fox of Buckley (Non-Afl)
My Lords, I will say very briefly I have no doubt that the Government do not want to lead to the sacking of workers through this Bill. However, when the Minister seeks to reassure us with the conclusion that it will be left to the discretion of the employer, I say to the Minister that those are dread words for anyone who is an employee of said employer if you are in dispute. As this Bill is about enforcing consequences, nay punishment, I do not care whether the Minister intends that people are sacked, I simply point out that that could be the consequence even against what the Government want. I hope the Government will reconsider this and bear in mind that it is to do with freedom, rather than coercing people: the freedom to go on strike and withdraw your labour, which is something that all sides of this House should support.
Lord Collins of Highbury (Lab)
My Lords, I will speak to my Amendment D1 and address some of the issues the Minister mentioned. Of course, when I spoke in the earlier debate, I focused on the fact that, when it comes to minimum service levels during disputes, what works are voluntary agreements—and that is across the world. I repeat that what this Bill does is undermine co-operation and voluntary agreements.
The fact is that this Bill will place trade unions in the unacceptable position of being asked to ensure that members who vote for industrial action do not take part in that action. It is a complete contradiction of their role. My amendment would remove the obligation on the union to take undefined reasonable steps. The Minister referred to the report from the Joint Committee on Human Rights, and I appreciate the Minister attempting to meet me and my noble friend to discuss what “reasonable steps” might mean. Sadly, the two-page government amendment that he gave me placed huge burdens on employers and unions—the complete opposite of what this Government say they want to achieve.
The simple fact, as I mentioned on Report, is that if a union is deemed not to have followed the legislation, it could mean that the strike is regarded as unlawful and that protections such as automatic unfair dismissal protection could be removed from all striking workers, including those not named in the notices. Again, if a union is deemed not to have followed the legislation, the strike could be regarded as unlawful, and that then opens up all kinds of consequences.
Lord Fox (LD)
My Lords, Motions C1 and D1, as so excellently set out by the noble Baroness, Lady O’Grady, and the noble Lord, Lord Collins, seek to add protections into the Bill for workers and unions. The Bill as drafted, as we have heard, could have serious consequences for employees and unions that fail to comply with work notices imposing minimum service levels.
To pick up the point that the noble Baroness, Lady Fox, made very well, it does not matter what Secretaries of State or Ministers have said once this law is out there. We move from the situation we have at the moment, under existing industrial action legislation, where those on an official lawful strike are automatically deemed to be unfairly dismissed if they are sacked for taking part. The Bill would disapply this protection for those named by an employer on a work notice. This is a gross infringement of individuals’ freedom and that is why these Benches support Motions C1 and D1.
Lord Callanan (Con)
My Lords, we have once again had a reasonably full debate on these matters, so the House will be relieved that I will keep my response brief. We have largely covered many of these points before, so we do not need to repeat them.
Briefly, in response to the noble Baroness, Lady O’Grady, I restate the view of the Government that this Bill is not about sacking workers, and nor is it about forced labour, which is a frankly ridiculous exaggeration. It simply equips employers to manage instances of non-compliance with a work notice. That is exactly the same situation as any other strike action that is not protected under existing legislation.
To be clear, under the original drafting of the Bill an employee who went on strike contrary to being named on a work notice would lose their automatic protection from unfair dismissal only provided that they were notified in advance of the requirement for them to work and that they must comply with the work notice. We expect employees to be told if they are required to work and, in that case, what work they are required to do. In such circumstances, it is reasonable for an employer to consider, if it wishes, disciplinary action if an individual none the less chooses to continue to strike, thereby putting the public at risk. It is at the discretion of the employer as to what, if any, disciplinary action is taken in these circumstances. In response to the noble Baroness, Lady Fox, the Government expect employers to be fair and reasonable and to take this action only where it is necessary.
Unions must have a role to play in minimum service levels, otherwise they would be able to induce people to strike as normal and take steps to undermine minimum service levels being achieved. That directly counters the objectives of this policy. The consequences of a union failing to play that role are consistent with any other failures by a union to comply with any other existing law.
In response to the noble Lord, Lord Collins, as I said in my opening speech the Government are willing to consider whether there is a case to provide further detail on what reasonable steps are, what this means for trade unions and how they might fulfil those obligations.
I stress to this House that Motions C1 and D1 would continue the prolonged and disproportionate impact of strike action on the public. With this legislation, the Government are taking a fair and proportionate approach to balance the fundamental ability of unions and their members to strike, on the one hand, with the need for the wider public to access some of the key services that they expect and pay for, on the other. I therefore hope that the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, do not push their amendments. I commend the government Motions to the House.
Baroness O'Grady of Upper Holloway (Lab)
I wish to test the opinion of the House.
Lord Callanan
That this House do not insist on its Amendments 5, 6 and 7, to which the Commons have disagreed for their Reasons 5A, 6A and 7A.
Lord Collins of Highbury
At end insert “and do propose Amendment 5B as an amendment in lieu and Amendments 5C and 5D as consequential amendments—
Strikes (Minimum Service Levels) Bill
Wednesday 21st June 2023
(10 months, 1 week ago)
Commons ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 21 June 2023 - (21 Jun 2023)
13:35 - The House divided: - Ayes: 283 / Noes: 205 - Question accordingly agreed to.
13:48 - The House divided: - Ayes: 277 / Noes: 209 - Question accordingly agreed to.
14:00 - The House divided: - Ayes: 280 / Noes: 214 - Question accordingly agreed to.
Mr Speaker
I should inform the House that none of the Lords amendments engages Commons financial privilege.
Schedule
Minimum service levels for certain strikes
The Parliamentary Under-Secretary of State for Business and Trade (Kevin Hollinrake)
I beg to move, That this House disagrees with Lords amendment 2B.
Mr Speaker
With this it will be convenient to discuss the following:
Lords amendment 4B, and Government motion to disagree.
Lords amendments 5B, 5C and 5D, and Government motion to disagree.
Kevin Hollinrake
There are three motions before the House. I am grateful for the fact that both Houses have reached agreement on the appropriate territorial application of the Bill, but I regret that we have not yet reached agreement on some remaining issues. I must once again urge the House to disagree with the Lords amendments before us. Again, the Bill has been amended in ways that would delay implementation or seriously limit the operation of minimum service levels. That would mean that we could not provide the all-important balance between the ability of unions and their members to strike and the ability of the wider public to access, during periods of strike action, the key services that our country needs. I will briefly summarise for the House the reasons why the amendments remain unacceptable to the House.
First, through Lords amendment 2B, the noble Lords seek to introduce additional consultation requirements and new parliamentary scrutiny processes. We recognise the importance of ensuring that the public, employers, employees, trade unions and their members are all able to participate in setting minimum service levels. That is why we ran consultations on applying MSLs to ambulance, fire, and passenger rail services on that basis. The Government maintain that the Bill enables the appropriate consultation to take place, and we are confident that the affirmative procedure will allow Parliament to conduct proper scrutiny of secondary legislation.
Alan Brown (Kilmarnock and Loudoun) (SNP)
Proposed new section 234F of the Trade Union and Labour Relations (Consolidation) Act 1992, inserted by the schedule, says,
“the Secretary of State must consult such persons as the Secretary of State considers appropriate.”
Does that not mean that there is no obligation to consult at all? The Secretary of State can decide that no one needs to be consulted. Does that not show the importance of the Lords amendment?
Kevin Hollinrake
If there is anybody whom the hon. Gentleman thinks was not able to contribute to the consultation, I ask him to please let me know, but it was open to anybody to make a submission to the consultation, and all those submissions will be properly assessed by Ministers and officials.
I turn now to the Lords amendments that would restrict the ways in which we can ensure that minimum service levels are achieved, Lords amendment 4B still leaves employers powerless to manage instances of non-compliance when workers strike contrary to being named on a work notice.
Rachael Maskell (York Central) (Lab/Co-op)
Could the Minister set out the timescale for the consultation and how he intends to carry it out?
Kevin Hollinrake
As the hon. Lady may know, our initial consultations closed around the middle of May—9 May to 11 May. Those submissions will now be considered, and we will report back to the House accordingly.
Christine Jardine (Edinburgh West) (LD)
To be absolutely clear, Lords amendment 2B addresses the concerns that many of us in this place have about the right to strike and how it will be protected. How are the Government going to ensure that these minimum service levels are fair and balanced and do not affect that right to strike?
Kevin Hollinrake
We are very clear that we want to maintain the right to strike. Previous derogations, which we very much appreciate, have not interfered with people making their views known through industrial action. We do not expect that situation to change. As I say, the consultation ran for a good period of time, and the submissions are now being considered. Of course, we want to make sure that people have been properly consulted and that the regulations are fit for purpose.
Several hon. Members rose—
Kevin Hollinrake
I will make a little progress, but I will make sure that both the hon. Member for Kilmarnock and Loudoun (Alan Brown) and the hon. Member for Glasgow South West (Chris Stephens) get a chance to make their points.
The Bill takes the same approach as to any other strike action that is not protected under existing legislation. Lords amendment 5B may suggest that the other place accepts that trade unions should have a role to play in ensuring that minimum service levels are met, but in reality under, that amendment, whether and how the unions encouraged their members to comply with work notices would be at their discretion. Unions would be able to induce people to strike as normal and take steps to undermine the achievement of minimum service levels. That is clearly directly counter to the objectives of the policy.
Alan Brown
The Minister has said that the consultation has already closed, but the whole point of the Lords amendment is to oblige the Government to consult on draft regulations when they bring them forward and to publish impact assessments. If the consultation has already closed, that proves that there will be no transparency going forward, does it not?
Kevin Hollinrake
Not at all. There will be further scrutiny of the minimum service levels when they are brought forward, in the usual way that legislation passes through this House. Those regulations will be considered by both Houses.
Chris Stephens (Glasgow South West) (SNP)
In response to the hon. Member for Edinburgh West (Christine Jardine), the Minister indicated that the Government agree with the right to strike and want to protect it. However, rejecting Lords amendment 4B does not do that, because the consequence would be that employers would have the right to dismiss a worker taking part in industrial action, with no recourse to a tribunal. How does that protect the right to strike action?
Kevin Hollinrake
Because it requires people who are named in a work notice to turn up for work, which is common in other jurisdictions that use minimum service levels in order to ensure that the public can go about their daily lives and businesses continue to operate. It does not interfere with that ability.
Jim Shannon
The Minister is an honourable person, and I know that he understands the issues and where we are coming from. Decent, ordinary people vote to strike only when they feel voiceless and invisible to management. Government and big business can prevent strikes by listening and acting before that stage is reached, but the right to strike must always be a last-ditch possibility, and those people must reserve that right. Does the Minister understand that and agree with it?
Kevin Hollinrake
As always, I entirely agree with all the points that the hon. Gentleman has made. Of course strikes should be a last resort, and workers should be able to take industrial action when they feel their voices are not being heard. I do not think there is anything in the Bill that cuts across that. Hon. Members may disagree, but that is our position, and it is a position we have maintained throughout the passage of the Bill.
Kevin Hollinrake
No, I have given way twice to the hon. Gentleman.
The Government maintain that there must be a responsibility for unions to ensure that their members comply. Without that, and without any incentives for employees to attend work on a strike day when identified in a work notice, the effectiveness of the legislation will be severely undermined. Unfortunately, I do not consider that these amendments are a meaningful attempt to reach agreement. I fear that we are having a somewhat repetitive debate that is delaying us getting on with the important business of minimising disruption to the public during periods of strike action, and I encourage this elected House to disagree with the amendments.
Justin Madders (Ellesmere Port and Neston) (Lab)
Thank you, Mr Speaker. I draw the attention of the House to my entry in the Register of Members’ Financial Interests.
Today, we consider a number of Lords amendments that will go some way towards making the Bill slightly less draconian than it currently is, but will not make it a Bill that we can ultimately support. I start by paying tribute to Members in the other place who have done their best to ameliorate the Bill with the sensible amendments that we are considering, and which we will be supporting. What those Members understand is that the Bill is the act of a weak Government who have lost the authority and the will to govern for everyone; a Government who prefer legislation to negotiation, diversion to resolution, and confrontation to consultation. How Ministers have the gall to come to the Dispatch Box and talk about the importance of minimum service levels when we have seen the decimation of our public services under this Government—with a record 7.4 million patients left on waiting lists, record teacher vacancies, and ever-increasing response times to calls to the police—is beyond me.
Margaret Greenwood (Wirral West) (Lab)
My hon. Friend is making excellent points. I have heard from doctors in Wirral West who firmly believe that the Bill represents an intrusion on legitimate trade union activities, undermines workers’ rights to representation, and would leave unions unable to effectively represent their members. Does my hon. Friend agree?
Justin Madders
I thank my hon. Friend for her intervention, and I do agree with those doctors. I will go on to explain why the Bill is an attack on basic freedoms and liberties that I thought this country held dear.
Turning first to Lords amendment 2B, as we know, the Bill presents the Secretary of State with huge, unchecked powers, throwing scrutiny and democracy out of the window. We think it is entirely reasonable that if a Secretary of State wants the power to set, impose and police minimum service levels, they should be accountable for the impact of those powers and able to demonstrate what their impact will be. Requiring them to conduct a proper impact assessment on the use of those powers and hold a consultation on any specific proposals they have could be helpful to a Secretary of State, because they cannot possibly know how every nook and cranny of any particular sector operates and what is needed to deliver a minimum service level—assuming they can define what one is.
If the Government think that it is such a wonderful idea to introduce minimum service levels in the sectors covered by the Bill, they should not fear scrutiny of their proposals, consultation with those directly affected, or challenges to their assumptions. My fear is that the Government fear all of those things. When the Regulatory Policy Committee described the Bill as “not fit for purpose”, one would have hoped that any sensible and rational Government would put a little bit of effort into talking to people to make sure that their own Bill had even a remote chance of working, but I suspect that—like so many things that we hear from this Government—they do not look beyond the easy headline and do not think through the consequences of their actions.
I will turn briefly to Lords amendment 5B, which attempts to deal with what is essentially a full-blown attack on the independence of trade unions and their members. I know that the Government have been raising the bar ever higher on the number of members required to vote in favour of industrial action. However, even they must see that putting a requirement on a trade union to take action to stop some of its members from participating in industrial action once they have voted in favour of it—as proposed new section 234E of the Trade Union and Labour Relations (Consolidation) Act 1992 would do—undermines the very essence of what a trade union stands for.
We have never had an adequate explanation of what reasonable steps a union is expected to take in those circumstances. The Minister previously told us that it would be a matter for the courts to determine, but that represents an abject failure by the Government to do their job. Are they really saying to trade unions that they can face damages of up to £1 million if they fail to comply with the Bill, but that they will have to wait for a court to decide what they need to do to avoid that liability? That is ludicrous, dangerous, and a potentially disastrous situation for any trade union to be in. This amendment removes Government interference in lawfully and democratically made decisions by an independent non-governmental organisation, and removes the completely disproportionate risk that trade unions face if they fail to adhere to the undemocratic, unspecified and unconscionable requirements of this provision.
Rachael Maskell
I should refer to my entry in the Register of Members’ Financial Interests.
My hon. Friend makes a very good point about the jurisdiction of trade unions. I have said this in the House before, but Government Members just do not seem to understand it. It is the members of the trade union who determine what happens within a trade union—it is not a general secretary or even an executive, but the members—so how are they, as individual members, going to instruct workers to attend work?
Justin Madders
That is really a question for the Minister, and one that I think the Government have failed to answer adequately. I think the point my hon. Friend makes is a good one. When Conservative Members traduce the union barons, they actually traduce every single member of the trade union who has voted in support of industrial action, and I am afraid that that is no way for any Government to operate.
I would ask Conservative Members, not that there are many here, to consider what the Bill actually means. Representatives of trade unions will be required to encourage, cajole, advise, pressurise or even demand that their members cross a picket line. They will be asking trade unions to actively go against the very thing they were set up to do. I would say that it is a bit like asking a Conservative MP to vote in support of higher taxes, but I guess that, with the highest tax burden in over half a century, we may have to drop that particular analogy.
Margaret Greenwood
My hon. Friend is being very generous in giving way. I am a proud trade unionist, but I am also a former schoolteacher. I am concerned not only about the administrative burden that this requirement for employers to serve work notices on staff will create, but about the risk of damaging relationships within the workplace. He is talking about people being required to cross picket lines, and that would most definitely be a case in point. I am very concerned, because schools and hospitals in particular operate through staff collaborating with each other, and risking those relationships is a very dangerous thing to do.
Justin Madders
My hon. Friend is absolutely right. That is why so many employer organisations are also against this Bill, because they understand what it will do for industrial relations: it will make them worse, not better. I would ask Conservative Members to think carefully about what they are asking trade unionists to do, which is to go against deeply held, genuine and sincere beliefs—
Clive Efford (Eltham) (Lab)
I intervene to give my hon. Friend a chance to get his throat in order. Does he agree with me that, first and foremost, the Prime Minister withdrew his Labour on Monday with the intention of not showing leadership, which is a remarkable feat on the part of a Prime Minister? Does my hon. Friend agree that these are the death throes of a Government who have really run out of steam? They are trying to blame everybody else for what is going wrong. They are going for a cheap headline and have created this piece of legislation, which is anti-trade union and anti-democratic, to try to throw the blame on to the trade unions and workers, and away from where it really lies—with this Government.
Justin Madders
I thank my hon. Friend for his intervention—I think my voice has returned, thankfully—and he is absolutely right. This Bill is counterproductive because ultimately it will not quell the concerns of many people in those sectors that have taken industrial action. Taking away the right to strike will not take away people’s concerns; it will just make them worse, and it will prolong anxiety, concern and discord.
Again, I ask Conservative Members to think about what they are asking trade unions to do—to go against deeply held, genuine and sincere beliefs. Whether or not they agree with the right to strike, do they really think in all conscience that this is something that sits comfortably with notions of dignity, respect and freedom? How would they feel if they were compelled to take actions in direct contravention of their own values?
Finally, I turn to Lords amendment 4B. It attempts to tackle the pernicious heart of this Bill, which seeks to destroy the basic freedoms that the trade union and Labour movement have fought to secure over the course of history. From the Chartists to the founding of the TUC, the trade unionists at Taff Vale and the formation of the Labour Representation Committee, the working people of this country have faced a long and arduous struggle to improve their working conditions, and fundamental to that struggle has been the right to withdraw labour. When Conservative Members inevitably vote down this amendment, they are saying to their constituents—the teachers, doctors, nurses, bus drivers and train drivers—that their voice does not matter and that, should they dare to withdraw their labour in search of better terms and conditions, they do so at their own risk.
Chris Stephens
The shadow Minister is being very generous in taking interventions. The heart of the Lords amendment is to protect workers who have been dismissed so that they have recourse to a tribunal. That is a fundamental human right, is it not?
Justin Madders
One would have thought so, and that is probably why the Equality and Human Rights Commission has expressed great alarm at this Bill. If the Government want to give themselves the power to threaten every firefighter, every teaching assistant and every paramedic with the sack when they exercise their democratic right to withhold their labour, they should think very carefully about what they do with that power, because in a free society no Minister should hold that power—not that Ministers seem to understand what this Bill actually does, because the Minister said last time:
“The reality is that nobody will be sacked as a result of this legislation.”—[Official Report, 22 May 2023; Vol. 733, c. 103.]
I know that the Government chose to bypass the normal line-by-line consideration of this Bill, but one would have hoped that the Minister had read as far as the schedule, because it does actually contain the power to sack people for going on strike.
Even if the Government do not understand the powers they are giving themselves under the Bill, they ought to understand the principle of the withdrawal of labour in the event of a dispute. As my hon. Friend the Member for Eltham (Clive Efford) has mentioned, many Conservative Members withdrew their labour the other night. In fact, 200 of them had no difficulty in doing so. Indeed, former Prime Minister Johnson withdrew his labour after he disagreed with the report from the Privileges Committee. So they should understand that the principle of people withdrawing their labour is an important one. It is a basic and fundamental right that every one of our citizens should enjoy in a free and democratic society. We are not serfs required to provide toil to the lord of the manor or conscripts engaged in a war against an invading force; we are citizens of this country, and in a free country the right to withdraw labour should be protected and respected.
Even if Conservative Members believe that the requirement to send someone into work against their will is somehow consistent with a free and democratic society, they should at least consider the fact that the Bill as it stands means an employee can be sacked for failing to comply with a work notice, even if they say they have not received it. Yes, someone can be sacked for not complying with a work notice without any challenge to it legally, and they can also be sacked for not complying with it even if they have never seen it. How is that justice, how is that reasonable and how is that good industrial relations? It is a recipe for injustice, for toxicity and for abuse by employers who want to get rid of the most troublesome employees.
I will not list all the organisations that have condemned this Bill, but two of the main employers in the key rail and health sectors have called this out for what it is, because they know that rather than resolve industrial disputes, this Bill will prolong them. They know that the kind of restrictions this Bill places on people are anti-democratic and not in the best traditions of this country. It is no wonder that even members of the Cabinet have criticised this Bill. Indeed, this week we had the shameful news that the United Nations, through the International Labour Organisation, has called on the Government to respect international law, such is the threat that this Bill poses to it. No, we cannot accept this tawdry, vindictive, unworkable disgrace of a Bill. This Bill attacks the people who keep this country going, and the sooner the Government realise that the politics of division will not work, the better.
Alan Brown
I want to start by simultaneously condemning and praising the Lords, because although I still disagree with the premise of unelected peers for life, I respect the work ethic of some of those who have been trying to improve this God-awful Bill. It also shows that, while the Tories can stuff the place with their cronies and donors, the issue with cronies and donors is that they cannot be bothered to turn up, do their work and vote accordingly, as in the case of Baroness Mone, who is absent after pocketing millions of pounds for selling dodgy personal protective equipment to the NHS. On the Lords as an institution, we have a perfect illustration of the Labour leader’s continued flip-flopping. Overnight he has gone from wanting to abolish the Lords to now planning to stuff it full of Labour peers when he gets into government. It is pretty shameful.
I am disappointed that the Lords did not hold out on an amendment to restrict the Bill’s extent to England only, which would recognise the position of the devolved Governments.
I commend the Lords in their consistency on other matters pertaining to the Bill. Lords amendment 2B would require the Government first to publish draft regulations, and then to undertake impact assessments on their effects and to consult with representatives of trade unions and employees. That is hardly an onerous request—in fact, it is just putting in place basic transparency. Throughout the Bill’s passage, the Tories have been eager to tell us that it is about health and safety, minimum service levels and allowing the public to get to work. If that is the Bill’s real intent, and it is not a draconian attack on the rights of workers to strike, surely the Government should be willing to comply with the requirements of Lords amendment 2B.
Paragraph (c) of the amendment perfectly encapsulates the rhetoric of the Tory Government about balancing the impact of regulations on the general public with complying with workers’ rights to strike. Given all the quotes and speeches from Tory Ministers and Back Benchers, surely they should be content with the amendment and be confident that they can comply with it and set out the aims of any draft legislation, allowing the public to understand its intent and impact. If the Government were true to their stated aims, the amendment could mean them backing trade unions into a corner with transparency. At a stroke, the amendment would take away claim and counter-claim on the impacts of any regulations, as the impact assessments and consultations would be crystal clear to everyone involved. What is it that the Government are objecting to, because the Minister certainly did not make that clear earlier? The Minister said that the consultation is already closed, which means there is no transparency going forward.
In voting to disagree with the previous Lords amendments, the Government said that it was because the Bill already contains adequate consultation requirements. I have already illustrated that the Government are completely at it with that statement. If we look at proposed new section 234F of the 1992 Act, the Secretary of State is required only to consult such persons that he or she considers “appropriate”. That clearly leaves the door open to consult nobody at all.
Subsection (5) of proposed new section 234F advocates that any consultation requirements can be satisfied before the passing of the Bill. How is that even logical? According to the Government, adequate provision takes the form of consulting who they decide they want to consult, and in the absence of any doubt, any past consultation, past Government rhetoric or past announcements will count as satisfying these non-consult requirements. That is certainly a much easier pathway for the Government than having to bother to undertake impact assessments, proper consultation and parliamentary scrutiny in the form of a Joint Committee to review these impact assessments. The reality is that, with Lords amendment 2B, Parliament has a choice to take control or to cede unlimited powers to a Secretary of State.
Turning to Lords amendment 4B, I refer to the Government’s response to Lords amendment 4, which shows their real intent. They have said that the reason for objecting to Lords amendment 4 is
“in order for the legislation to be effective, it is necessary for there to be consequences for an employee who fails to comply with a work notice.”
The Government rationale is clear that the legislation is intended to be the “sack the workers, sack the nurses, sack the doctors and sack the train drivers Bill”, plain and simple. Forget the pretence that this legislation brings the UK into line with other countries that the Government keep telling us have minimum service levels legislation on the right to strike, because this legislation brings the UK into line not with other democracies, but with Russia and Hungary.
Lords amendment 4B provides some protection for workers—protection from malicious employers and protection for individual workers and, in particular, union representatives to stop them being targeted by employers. Surely the Government must agree with proposed new subsection (1) under Lords amendment 4B that a person is not subject to a work notice if they have not received it. This Government demand that people prove who they are before they can exercise their right to vote, but at the same time they seem to believe that a worker can be sacked for not complying with a work notice they have not actually received. It is preposterous. Proposed new subsection (2) confirms that the employer has to prove that the work order was served and received in compliance with subsection (1). Any decent employer would do that anyway, but it makes sense for an employer to have to prove that to ensure no unfair dismissal claims. Otherwise, I return to the point that the sacking of workers is clearly a key outcome and sanction that this Government intend.
No longer is there any need for illegal secret blacklisting, because all employers now have to do is the sack awkward squads for not complying with notices they did not receive. That is how open to abuse the legislation is in its current form, and it is outrageous that the Government are moving against Lords amendment 4B. They are bringing in legislation to make it easier to sack workers when we do not have enough workers to fill vacancies. It is truly perverse that the Government are sticking with such draconian legislation to make it easier to sack key workers.
Richard Burgon (Leeds East) (Lab)
I will briefly touch on the reasons why I think it is important that this elected Chamber does the right thing and rejects the Government’s opposition to the message from the other place. I will focus on two amendments—Lords amendments 4B and 5B—that go to the heart of this matter and the heart of this pernicious Bill. They relate to the protection of employees and protections for unions.
The context for this Bill, as have said before, is that we have a Government who are increasingly desperate, draconian and authoritarian. We have seen that in the restrictions on the right to peaceful protest and on people’s ability to cast a vote at elections, and now we see it with this draconian attack on trade unions. How can anybody in this place believe that it is in any way acceptable for workers to be sacked if they fail to cross a picket line in a strike that has been lawfully called and conducted, even under the restrictive and onerous requirements we have in this country? How can that be viewed as acceptable in any way?
I will conclude on the protection for unions. I do not want to detain the House for long, because a few people want to speak and there is limited time. Lords amendment 5B is fundamentally necessary because the Bill is an unprecedented attack on the role of trade unions in our society and our democracy. The Minister should not need to have it explained to him that trade unions in our society are independent bodies representing workers. Trade unions in our democracy are not meant to be agents of a Government. They are not meant to be agents of an employer. They are not there to ensure that the bidding of a Conservative Government or a big corporation is done. Unless Lords amendment 5B is backed, unions will be required to take steps to persuade their members to cross picket lines and go to work during lawful disputes, or they will face gargantuan fines.
That is truly chilling. It changes the role of trade unions in our society. That is no small matter; it goes to the very core of what the trade union movement in this country has been about for hundreds of years. Failure to support Lords amendment 5B is a failure to stand up for a basic democratic principle. Conservative Members can snigger about it, but there was a time when even Conservative MPs understood the independence of trade unions.
Let us be clear: the Bill allows the Secretary of State or an employer to set minimum service levels and to issue work notices requiring workers to break a picket line and go into work, and unless we back Lords amendment 5B, the Bill will require trade unions to help the Government and the bosses to achieve that aim. It is draconian and anti-democratic. It should be opposed by everybody in the House, whether or not they are a socialist, a trade unionist, a Conservative Member, a Labour Member or a Member of whatever party. It should be opposed by anybody who believes that trade unions in our democracy are there to represent the will of the workers and their members, not that of the Conservative Government or the boss of a company. It is basic democratic stuff that takes us back hundreds of years. The legislation needs to be resisted if we in this place have any respect whatsoever for our democracy and the democratic role of our independent trade unions, which are there to support the workers, not to support the Government or bosses against their will.
John McDonnell (Hayes and Harlington) (Lab)
All I can say about legislation like this is that the Government should be careful what they wish for. This is possibly the most significant piece of trade union legislation introduced in this country for a century—right back to Taff Vale—because it strikes at the basic human right to strike. Because it is so significant, wise people in the House of Lords—I rarely say that—have tabled Lords amendment 2B. All they are saying to the Government is, “This is such a significant piece of legislation that you really do need to consult on its detail and implementation.” Without that detailed consultation, I think that a whole range of problems will be exhibited.
I will give one example from my constituency, which I have raised before. How can there be a minimum level of service for air traffic controllers? It does not exist. Therefore, in effect, the legislation means that constituents who are air traffic controllers will not have the right to strike any more. If that is what the Government want, they should be honest and explicit about that.
Again, the Government should be careful what they wish for. Individuals who are trade unionists will see the Bill as the withdrawal of their right to strike, because at any time an employer will be able to say to that individual, “You have got to work.” If that individual says, “Well, I want to go on strike,” they could be sacked, and they would have no protections left in law. That is an attack on the basic right to strike. What will those individuals do? Large numbers of them will not comply. Then what happens? It will escalate into an even more significant dispute.
The legislation also says to a trade union, completely contrary to three centuries of history, “You will be required to discipline your members for not working.” That basically means that the Government will cause conflict within that particular union, or across the trade union movement overall. Maybe that is what the Government are all about.
When the legislation was brought forward, I thought that the motivation for it was one of two things. The first possibility was that the Government were panicking because of the scale of industrial action taking place, not realising that the vast majority of those industrial disputes would, as always, be settled by negotiation. That is what has happened with most of them. If it was not panic, it was something more sinister. It was Ministers thinking, “Why waste this opportunity? Why not bring forward the legislation that we have wanted for generations to undermine the right to strike?”. If that was the Government’s motivation, I tell them that they cannot implement legislation, no matter how hard they try, if it goes against the grain of our history, which is to respect workers’ rights, because those have been fought for over generations.
The Bill will exacerbate the industrial relations climate in this country. The Government should at least accept the Lords amendments, because they go some way towards establishing a piece of legislation that may be seen as implementable through consultation and through the protection of rights. If they go ahead like this, I can see nothing but further conflict. That will undermine the commitment across the House to try to develop a growth economy again, rather than one held back by disputes, some of which have been engineered in recent times because of the cost of living crisis.
Chris Stephens
I, too, refer the House to my entry in the Register of Members’ Financial Interests. In opening the debate, the Minister skirted round amendment 4B and just said that the Government were opposed to it. A number of us intervened at the time, but I really do think that he needs to consider the Government’s position carefully, particularly on that amendment, because it gets to the heart of the Bill and why so many of us are expressing concerns about the attacks on natural justice and on human rights.
Lords amendment 4B asks that employees receive a work notice in good time. It seems fairly uncontroversial that a work notice should be issued to a worker in good time if they are to attend their work. If we do not accept the amendment, we will end up with a scenario where someone returns to work after a day of industrial action and is told they are being dismissed with no evidence whatsoever that they have been given a work notice. Of course, the Government do not want to give the responsibility for the work notice to the employer, so the employer will have no obligation at all to serve an employee with a work notice, but they could dismiss them the very next day after industrial action.
Let me emphasise that the employee would have no recourse to an employment tribunal. Surely it is a fundamental human right, and fundamental to natural justice, that if a worker is dismissed, they have recourse to a tribunal to challenge that decision. That, to me, seems fairly self-evident and obvious, but the Government are allowing a situation where rogue employers will be able to dismiss a worker for taking part in industrial action with no recourse to a tribunal, and they will not need to evidence the fact that that worker was served with a work notice.
The Government find themselves in a preposterous situation by opposing Lords amendment 4B, so I hope that the Minister will be able to answer some of these questions. Is it really the Government’s position, as I have outlined, that it is okay for an employer to dismiss those on strike and that they will not need to provide evidence that the employee was obliged to go into work? It is ludicrous.
Rachael Maskell
While the Government clearly do not want workers to have access to justice through the employment tribunal, of course those workers’ human rights will have been infringed, so will they not have access to other courts to challenge this egregious legislation?
Chris Stephens
Hopefully the Minister will answer that question.
The Minister did say in answer to my intervention that it happens in other countries. Yes, it happens in Russia and Hungary. Are Government Members really going to justify the Bill by saying, “It happens in other countries like Hungary and Russia”? Is that the Government’s example? Let me name another country—Italy, where workers can be disciplined but short of dismissal. But the Government do not want to follow the Italian model; they want to be in line with Hungary and Russia. It is incredible that the Government have found themselves in that position.
Kevin Hollinrake
I thank Members for their contributions. It is fair to say that we will have to agree to disagree. We believe that this legislation is a proportionate response that gives the Government the power to ensure a safe level of service in areas such as health, transport and border security, so that people’s lives are not put at risk and they can work, access healthcare and safely go about their daily lives.
I will touch on one or two points raised by right hon. and hon. Members. I have a great deal of time for the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders), though perhaps we do not agree so much in this debate. He asked who we govern on behalf of, and he listed very important people in our society—our nurses, train drivers and border security officers. But is he properly representing the many other stakeholders in this debate, such as pub landlords, restauranteurs, hoteliers and people seeking urgent medical treatment or trying to get to work or to see family? There have been 600,000 cancelled appointments as a result of the strikes of recent months and £3.2 billion of economic detriment—much of that to our restaurateurs, hoteliers and pub owners. It is important that their voices are heard, too.
Justin Madders
I hear what the Minister is saying, but that is an argument to ban strikes altogether. Is that not what he is doing?
Kevin Hollinrake
We have been clear that there is a balance between people being able to seek industrial action and being able to go about their daily lives. That is the balance that we are trying to strike. He asked if we fear scrutiny; not at all. What we fear is delay. That is what the Opposition parties are trying to bring about: delay in wrecking amendments.
Andy McDonald (Middlesbrough) (Lab)
Will the Minister expand on the point made by my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) and give us a list of the people whom he thinks should be able to go on strike? Who are the ones he approves of?
Kevin Hollinrake
Any person who is legislated for in these measures should be able to go on strike, subject to minimum service levels. It is quite clear, and we have been consistent all the way through.
In response to the hon. Member for Kilmarnock and Loudoun (Alan Brown), our objection to the amendments is the delay that they will cause. We want to ensure that people can go about their daily lives. The right hon. Member for Hayes and Harlington (John McDonnell) raised some points about reasonable steps. Unions will not somehow have to compel people to go to work; we are asking them to undertake reasonable steps to ensure that people comply with a work notice. In fact, we were willing to set out in the Bill what those reasonable steps would be, but the right hon. Gentleman’s counterparts in the other place rejected such measures.
The hon. Member for Leeds East (Richard Burgon) talked about the independence of unions; of course we respect that. It is true that if a union fails to take reasonable steps, the strike would be unprotected, as it would if the trade union failed to meet other existing requirements in the Trade Union and Labour Relations (Consolidation) Act 1992, such as balancing requirements. This is not a departure from the existing position.
Alan Brown
The Minister keeps talking about wrecking amendments, but how is obliging an employer to ensure that an employee has received a work notice a wrecking amendment?
Kevin Hollinrake
I draw the hon. Gentleman’s attention to other points in Lords amendment 4B: proposed new section 234CA(4) of the 1992 Act is a wrecking amendment because it says there is no contractual obligation for someone to comply with a work notice. That drives a coach and horses through the Bill.
The hon. Member for Glasgow South West (Chris Stephens) talked about how other jurisdictions deal with requiring people to go to work under a work notice. He may be aware that in France, people can be subject to criminal charges if they do not comply with a work notice. These are proportionate measures. We must make the view of the elected House as clear as possible, and avoid any further delay to fulfilling our duty to protect the lives and livelihoods of those we represent.
Question put, That this House disagrees with Lords amendment 2B.
Strikes (Minimum Service Levels) Bill
Tuesday 4th July 2023
(9 months, 4 weeks ago)
Lords ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 152-I Marshalled list for Consideration of Commons Reasons - (3 Jul 2023)
15:45 - Division on Motion A1 - Ayes: 223 / Noes: 204 - Motion A1 agreed.
Lord Callanan
That this House do not insist on its Amendment 2B to which the Commons have disagreed for their Reason 2C.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, in moving Motion A, with the leave of the House, I will speak also to Motions B and C.
The Bill returns to us once again from the other place. That House has been consistently very clear, for the second time now, that it is firm in its position on the remaining three amendments. When we were last here, this House asked the Commons to reconsider its position and, unsurprisingly, it has reached exactly the same conclusion as it did previously. Indeed, it has done so by greater majorities than before and, in some cases, by the greatest majority that we have so far seen on the Bill. Therefore, I propose Motions to accept the Commons position on the Bill and give way to the elected House.
We have discussed these amendments in detail throughout the Bill’s passage. The Government’s position remains that they cannot accept amendments which would delay the implementation of this much-needed legislation or, indeed, render it entirely inoperable. The Government have been clear in both Houses that they are willing to consider providing clarity on the nature of the “reasonable steps” which unions are expected to take to fulfil their obligations under the Bill. This is a significant issue, which I know a number of Members of this House have raised throughout the Bill’s passage. However, as yet, we have not had any indication that this would be widely supported.
Amendment 2D significantly expands on previous versions of Lords Amendment 2 in a way that will not, I believe, add to the effectiveness of the regulations. The Government have already undertaken public consultations on their intentions to bring forward minimum service levels for passenger rail services, ambulance services and fire and rescue services. We will bring forward regulations for approval in Parliament in due course. This is an entirely reasonable legislative approach enabling the Government to consider all relevant factors, including our international obligations, while at the same time ensuring that minimum service levels are introduced in good time.
I remind the House that, as the Government have made clear through the passage of the Bill, employees will lose their automatic unfair dismissal protection for going on strike in contravention of a work notice only if they receive notification from the employer that they are required to work under a work notice and notification of the work that they must carry out. Finally, impact assessments will be published alongside the final regulations.
I am sure that the noble Lord, Lord Collins, will acknowledge that the effect of his amendment would be to delay significantly the implementation of minimum service levels, given the additional and lengthy consultation and parliamentary requirements; I heavily suspect that that is probably its purpose. On behalf of the Government, I must therefore resist it today. I hope that the noble Lord will not feel the need to put it to a vote.
This amendment remains unnecessary and would delay the implementation of this vital legislation, which is designed to protect the public from the disproportionate impacts of the ongoing strike action. I therefore ask noble Lords to support the Government’s Motions on the Order Paper today. I beg to move.
Motion A1 (as an amendment to Motion A)
Lord Collins of Highbury
At end insert “and do propose Amendment 2D in lieu—
“(5) Minimum service regulations may only be made if—
(a) the Secretary of State has published draft regulations;
(b) the Secretary of State has consulted the International Labour Organisation and given due consideration to such advice as it has proffered;
(c) the Secretary of State has conducted an impact assessment of the effect of the draft regulations on the services to which the draft regulations relate, addressing, in particular, the effect—
(i) on the general public;
(ii) on the conduct of these services;
(iii) on the conduct and effectiveness of the exercise of the right to strike in those services;
(d) the Secretary of State has conducted a consultation with the representatives of trade unions, employers and any other interested party on the draft regulations and on the matters to be addressed by the impact assessment and, in particular, on whether the draft regulations should or do sufficiently provide, so far as possible under section 234F(2)(a), for protection of workers who do not receive a work notice or fail to comply with it, and for the identification of the “reasonable steps” which a union must not fail to take under section 234E and those which it is reasonable for it not to take;
(e) the Secretary of State has laid before Parliament a report on any advice proffered under paragraph (b) and the consultation under paragraph (d);
(f) the Secretary of State has placed before a Joint Committee of both Houses of Parliament, convened for the purpose of reviewing them, the impact assessment under paragraph (c) and the report under paragraph (e) and the Joint Committee’s review has been published in a report to Parliament.””
Lord Collins of Highbury (Lab)
My Lords, I am proposing an unusual but reasonable step in relation to this Bill. As noble Lords have heard in previous debates on the Bill, Labour is committed to repealing what we believe to be a very bad piece of legislation. Employers, unions, the devolved nations and service users have expressed opinions against the Bill. However, my argument today will focus on the consequences of this piece of legislation, which have not, I believe, been thought through or properly addressed either by the Government or in the impact assessments.
The consequence of exercising the human right to withdraw labour is now, as the Minister confirmed, the removal of protection against unfair dismissal. The consequence for a union complying with rigorous balloting requirements for an official dispute is now to lose its protection against action in tort. We sort of knew that this was coming because the Joint Committee on Human Rights concluded that the penalties for employees and unions who do not meet the Bill’s requirements are severe. It stated that they
“amount to a disproportionate interference with Article 11”
rights of the ECHR on assembly and association. Of course, as the committee said, the Minister responded on those human rights by saying that the Government rejected the committee’s findings and recommendations. They felt that this piece of legislation was compliant.
Since noble Lords considered this piece of legislation, last month, the ILO’s Conference Committee on the Application of Standards called on the United Kingdom Government to
“ensure that existing and prospective legislation is in conformity with the Convention”—
that is, Convention No. 87, which governs freedom of association and protection of the right to organise.
Baroness Jones of Moulsecoomb (GP)
My Lords, the amendment of the noble Lord, Lord Collins, is absolutely perfect for this situation. The hubris and arrogance of this Government are breathtaking. I do not understand how they can bring a Bill that does three massive things—the noble Lord, Lord Collins, was very generous to the Government because he talked about “unintended consequences”, but I do not think that these consequences are unintended at all.
The first is that it gives Ministers more power. Over the past couple of years, we have seen the Government constantly trying to give more power to Ministers and less with Parliament—less scrutiny and democracy. That needs to be challenged. Secondly, this new law undermines workers’ rights and could even punish workers who are genuinely off sick or in hospital. Thirdly, it forces the trade unions to act on behalf of employers to make workers go to work on strike days, with severe legal consequences if they do not.
I hope the Government see the common sense in this amendment, take a step back and think about the ramifications of what they are trying to do.
Lord Pannick (CB)
My Lords, I support Motion A1 for different reasons. The proposal by the noble Lord, Lord Collins, makes it much more likely that, if implemented, the Bill will comply with the United Kingdom’s obligations under the ILO convention and, therefore, under the European Convention on Human Rights. The Minister expressed concerns about delay in implementing the Bill. There is no point in having a Bill that is speedily implemented if it does not comply with our obligations under the ILO convention and the European Convention on Human Rights. I hope that the Government see the good sense in this Motion and recognise that it is in their interests to have a Bill that is effective and lawful.
Lord Balfe (Con)
My Lords, I will start with three words of the Minister: “much-needed legislation”. I have not had a single email asking me to support this Bill or a single letter. No Conservative trade unionist has come to me and said, “This is a really necessary piece of legislation”. Actually, it is a nonsense of a Bill. It will not work. I support what was said by the noble Lord, Lord Pannick, which is about the only way of ever getting it to work, but then we have to ask whether it should work. The fact is it should not, because it goes too near people’s rights in industrial relations.
I quote from the former Business Secretary, who is not someone I normally quote. Jacob Rees-Mogg said:
“This Bill is almost so skeletal that we wonder if bits of the bones were stolen away by wild animals and taken and buried somewhere, as happens with cartoon characters”.—[Official Report, Commons, 30/1/23; col. 89.]
It is a disgrace of a Bill.
I will not delay the House for long. I am dubious about whether we should send it back yet again, because of the doctrine of the primacy of the lower House, rather than because I disagree with the amendment. But I ask the Government to stop passing legislation like this, which is a nonsense. I seldom welcome what the Labour Party says, but it will certainly be held to that word “repeal”. If it gets into government—and, you never know, it might one day—my first Written Question will be, “When will you bring forward a Bill to repeal this?”
Lord Fox (LD)
My Lords, it is a pleasure to support the amendment, as set out so thoroughly and excellently by the noble Lord, Lord Collins. I have very little to say; I will make just three points.
First, noble Lords who have been observing will remember that on a number of occasions I have proposed amendments that try to give Parliament more say on what is going on. Having got to where we are, I am happy to subsume that objective within the amendment that the noble Lord, Lord Collins, has set forward, but it remains an important and missing element in the Bill. We should not forget that.
The noble Lord also set a lot of store by the recent ILO announcement. He is right to do so, but this amendment is necessary with or without it. The announcement makes it clear to us on these Benches that the Commons should be given another chance to reassess the Bill in the light of the details coming in from the ILO.
Finally, the Minister talks about delay. The first iteration of this Bill was drafted and laid before Parliament about a year ago. If the Government really are that breathless about getting this on the statute book, they could have moved a little quicker. This is about politics, not actually doing anything real out there. The noble Lord, Lord Balfe, is right in that concern. Because of that, we will certainly support the noble Lord, Lord Collins, if he chooses to put this to a vote.
Lord Callanan (Con)
My Lords, as I said in my opening remarks, we have had a very similar debate a number of times, so I can keep my response brief. I have responded to these points previously, but I will make one point on the ILO report in response to the noble Lords, Lord Collins, Lord Pannick and Lord Fox.
The ILO did not say that this legislation did not comply with the convention; it simply said that it should and that we should ensure that it does. In my view it does, as our response to the Parliamentary Question rightly said. I have made the point many times in this House that the ILO has been clear over many years that minimum service levels can be appropriate in public services of fundamental public importance. That is why many other countries in Europe and around the world that are signatories to the ILO have had minimum service levels in place for many years. The Liberal Democrats and the noble Lord, Lord Fox, normally urge us to go the way of Europe and follow what EU countries are doing. In this case, we are doing precisely that.
I therefore hope, although without a great deal of optimism, that noble Lords will cede to the wishes of the elected House and agree to the Government’s Motions, which would then bring this Bill’s passage to a close.
Lord Collins of Highbury (Lab)
My Lords, I will take the unusual but reasonable step of pressing this, for one good reason. The Minister talks about the ILO not saying that the Bill is non-compliant. Part of the problem is that no one knows what this law means. Trade unions do not know what reasonable steps they need to take to protect the right to strike. We heard the Minister confirm that workers who receive a work notice will lose protection from dismissal.
The Minister talks about the ILO and minimum service levels in Europe. Nobody is against minimum service levels. They are essential, but in every European country they work because they are agreed by voluntary agreement and because people consent. As soon as you remove that consent, you are in trouble. That is why employers are so against what the Government are arguing.
I know that it might feel a bit repetitive, but the ILO report is new and the Commons needs to consider it. I plead with all noble Lords: please support my Motion. I wish to test the opinion of the House.
Lord Callanan
That this House do not insist on its Amendment 4B to which the Commons have disagreed for their Reason 4C.
Lord Callanan
That this House do not insist on its Amendments 5B, 5C and 5D to which the Commons have disagreed for their Reason 5E.
Strikes (Minimum Service Levels) Bill
Monday 17th July 2023
(9 months, 2 weeks ago)
Commons ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 17 July 2023 - (17 Jul 2023)
20:51 - The House divided: - Ayes: 302 / Noes: 205 - Question accordingly agreed to.
The Parliamentary Under-Secretary of State for Business and Trade (Kevin Hollinrake)
I beg to move, That this House disagrees with Lords amendment 2D.
This House has been asked these questions before and twice this House has said no with an overwhelming majority. We are asked to consider for a third time an amendment that significantly expands on previous versions that have already been rejected. Members of the other place referenced the report of the International Labour Organisation’s committee of experts as a reason to reconsider. However, I should note that this ground has already been well covered by both Houses. It was argued that Lords amendment 2D requires Ministers to do what the ILO is requesting: to undertake consultation when considering introducing regulations to implement minimum service levels. The Bill already requires Ministers to do just that, as they have done in undertaking public consultations on their intentions to bring forward minimum service levels to passenger rail services, ambulance services and fire and rescue services. Impact assessments were published alongside those consultations and final impact assessments will be published alongside the regulations the Government bring forward for approval in Parliament in due course.
My colleague Lord Callanan was right to say in the other place that the ILO did not say that the legislation was not compatible with ILO conventions. It simply said that it should be compatible and that we should ensure that it is. As stated in Parliament when introduced and throughout its passage, the Bill is compatible with the UK’s international obligations. The Government will continue to uphold their international obligations as the minimum service regulations are introduced.
Lords amendment 2D also seeks to ensure that the “reasonable steps” that unions should take to make sure that their members comply are considered as part of the consultations that are required before minimum service regulations are made. Members will recall that when this House last considered the Bill, I confirmed that the Government were willing to consider whether there was a case for providing further detail on the reasonable steps that unions must take under new section 234E to ensure that identified workers comply with a work notice given by an employer. In the light of the recommendations from the Joint Committee on Human Rights and points raised in both Houses during the Bill’s passage, the Government accept that further detail would give unions more legal certainty and foresight with regard to their obligations than the Bill provides in its current form. The Government will therefore introduce a statutory code of practice on the reasonable steps that must be taken, using existing powers under section 203 of the Trade Union and Labour Relations (Consolidation) Act 1992. These powers enable the Secretary of State to issue a code of practice to promote the improvement of industrial relations.
Rachael Maskell (York Central) (Lab/Co-op)
Will the Minister spell out exactly how trade unions are to comply with and enforce a code that is outwith their jurisdictions in making workers go into work?
Kevin Hollinrake
The code of practice will be consulted on so that all parties are clear about what the obligations of the unions will be. We expect them to be quite straightforward. They have been debated at length, along with various ideas about how this might operate.
Kevin Hollinrake
I want to end my speech shortly, but I will give the hon. Lady one last chance to intervene.
Rachael Maskell
As has been pointed out on numerous occasions, the measures that the Minister is trying to introduce are outside the jurisdictions of trade unions, which therefore do not have the powers to implement them.
Kevin Hollinrake
As I have said, we intend to consult with all parties to make sure that they have a chance to comment on what reasonable obligations a union might be required to take. I think that it is pretty straightforward, and, indeed, unions will be familiar with the code of practice on picketing that was issued under section 203 of the 1992 Act. This code will be subject to statutory consultation, including consultation with ACAS, and to the approval of Parliament. The consultation will give trade unions, employers and any other interested parties an opportunity to contribute to practical guidance on the steps that a union must take in order to make it as practicable, durable and effective as possible.
Alan Brown (Kilmarnock and Loudoun) (SNP)
If the Minister is so willing to consult, why is he rejecting an amendment which confirms that there should be a consultation?
Kevin Hollinrake
We are not happy with a number of other parts of the amendment. We are proposing a measure that we have already proposed in earlier debates. It is, of course, up to those in the other place to decide how they take their amendments forward, but we believe that this is fair. We are satisfied that it is an effective way to provide for clarity, and that the individual consultations for specific minimum service levels in relevant services required by Lords amendment 2D are not needed. The real impact of the amendment would be a delay in the implementation of minimum service levels, given the additional and lengthy consultation and parliamentary requirements which we strongly suspect are its purpose. Unnecessary delays in the protection of the lives and livelihoods of those whom we have been elected to represent cannot be justified.
Justin Madders (Ellesmere Port and Neston) (Lab)
I draw the House’s attention to my entry in the Register of Members’ Financial Interests.
Let me repeat, at the outset, our opposition to the Bill and our intention to repeal the Act that it will become should we be in a position to do so in the future. It is one of the most illiberal, unconscionable and ultimately destructive pieces of legislation produced by any Government. We believe that the right to withdraw labour is a fundamental right, a human right, and one that should not be extinguished. Even if some Conservative Members cannot see past their hostility to trade unions and past the easy headlines, they should see that what they are asking their constituents to do is distinctly un-British, because it infringes on individual freedoms that ought to be—even for Conservative Members—a basic part of any open and democratic society.
Freedom matters, and valuing freedom sometimes means that we protect another person’s freedom to do something even if we do not personally agree with the particular course of action. But our objections are based not just on principles, but on practicalities. Ultimately, we do not think that the Bill will work. The Bill is counterproductive because it will not quell the concerns of many people in the sectors that have taken industrial action. Taking away the right to strike will not take away people’s concerns. We cannot legislate away people’s legitimate grievances about their working conditions. Because the Bill is so ill defined and poorly thought through, Parliament must have a proper opportunity to consider its ramifications.
The measures set out in Lords amendment 2D attempt to address some of those issues. The amendment also provides yet another opportunity for us to raise our concerns about the Government’s lax approach to proper scrutiny during the Bill’s progress so far. Let us go back to when the Bill was first published. It is surely a basic expectation of Government that they should provide an impact assessment before asking hon. Members to vote on a Bill. But no—we were asked to trust the Government that the matter was in hand and that all would be fine. We said it at the time and we say it again: that approach is completely unacceptable.
The Bill had been trailed in the press for months before it was published, so not to have the impact assessment ready at the same time was a failure of basic competence. When it finally appeared, we could see why the Government were so keen to keep it under wraps. The Regulatory Policy Committee said that it was not fit for purpose—it could just as easily have been talking about the Government—and no wonder, given that the assessment contains statements that undermine both the purpose and execution of the Bill.
The impact assessment states that the Bill
“could mean a general increase in tension between unions and employers. This may result in more adverse impacts in the long term, such as an increased frequency of strikes for each dispute.”
When Ministers told us on Second Reading that the Bill would reduce the disruption caused by strikes, what they apparently did not know was that the Government’s own impact assessment would say that it could, in fact, have the opposite effect. The impact assessment also says, on at least half a dozen occasions, that assumptions are being made about the level of service that would be required. That is the point of the Lords amendment: unless we have some idea about what these minimum service levels will be—in the six months since the Bill was published, Ministers have not come to the Dispatch Box and told us—we are legislating in a vacuum.
The point has not been lost on the Delegated Powers and Regulatory Reform Committee, which wrote in its assessment that
“there is nothing in the Bill saying what those minimum service levels are. We shall only know when Ministers make regulations after the Bill is enacted. This is small comfort to Parliament, which is considering the matter right now.”
The Committee’s recommendation was that the Government should publish indicative draft regulations alongside the Bill. As it rightly points out,
“the Government must have some idea how they propose to exercise these powers.”
It is no surprise that the impact assessment got a red rating. Of the 861 Bills assessed by the Regulatory Policy Committee since its creation, just 2.9% have been given a red rating. When legislation represents such a fundamental departure from past practice, the importance of impact assessments increases rather than decreases.
If this all sounds familiar to you, Madam Deputy Speaker, that is because it is. Only last week the High Court said, in relation to the consultation process for the regulations that allow agency workers to break strikes, that
“this is not a case in which the evidence is that the proposal had obvious and undisputed merit based on cogent evidence, and enjoyed strong support from representative bodies in the sector”.
It could have been talking about this Bill—no doubt, in time, it will be.
The pattern is familiar. The Government decide the policy, although “policy” is probably too strong a word. The Government decide the headline that they want to create, rush through ill-thought-out legislation and then ignore all the voices that point out principled and practical objections. That is to treat democracy with contempt. Parliament is not a rubber-stamping process to agree whatever the Government of the day decide. When Parliament is starved of its ability to properly scrutinise legislation, that impacts on fundamental human rights, as it does in this case. It should come as no surprise that there is pushback from the other place requiring that a robust process be followed.
The amendment is important because the International Labour Organisation’s conference committee on the application of standards called on the Government to ensure that existing and prospective legislation is in conformity with the convention that governs freedom of association and the protection of the right to organise. I would not have thought that is too much to ask of a modern liberal democracy. In fact, I am rather ashamed that the ILO has had to point it out at all.
All this amendment does is what the ILO is asking the Government to do anyway, which is to undertake genuine consultation before implementing minimum service regulations. This means that, when regulations are published, they would include an impact assessment and there should be genuine consultation on the regulations, including on the protection for workers named in work notices and the reasonable steps a trade union needs to take to ensure compliance.
John McDonnell (Hayes and Harlington) (Lab)
I am sorry to interrupt my hon. Friend when he is in full flow but, as he is developing his argument on the need for consultation and impact assessments, has he been able to clarify with the Government what happens if an employer refuses to comply? In London, for example, the buses are contracted out, and individual bus companies have had individual disputes. If the Government instruct there to be a minimum service level but the employer does not want to sour industrial relations in the long term and therefore refuses to comply, what then happens?
Justin Madders
That is a very good question. My understanding—no doubt the Minister can correct me if I am wrong—is that it is still up to the employer to determine what work notices it issues, which makes the Bill a little ludicrous.
All these consultation papers, all these impact assessments, and we are still legislating in the dark.
Rachael Maskell
My hon. Friend has just made a valid point, because when NHS Employers and the NHS Confederation came before the Select Committee on Health and Social Care, they said that they did not want any of this legislation. Presumably, following that logic, they will not have to issue minimum service level terms for a strike.
Justin Madders
I thank my hon. Friend for her intervention. That is why it would have been so interesting to see what the consultation responses were to the draft regulations, because those might have told us whether employers were saying, “Don’t do this; we don’t think it is going to work.” We know that a long list of employers’ organisations are opposed to this Bill, and I will come on to that in a moment. They understand that, ultimately, it is not going to help industrial relations but will sour them.
In summary, the Bill’s impact assessment turns up late and is inadequate; no pre-legislative scrutiny or evidence sessions for the Bill took place; the Committee stage is rushed through in one day; and subsequent consultations are incomplete and leave many questions unanswered. Yet the Government still say that this Lords amendment is not necessary. The evidence to date and the opinion of the ILO say otherwise. I referred to the fact that the ILO is not alone in expressing concerns about the Bill. Many organisations have expressed alarm, including the Equality and Human Rights Commission, the Joint Committee on Human Rights, NHS Providers, the rail industry, the Chartered Institute of Personnel and Development, the TUC, and the Welsh and Scottish Governments. The Transport Secretary and the Education Secretary have also done so, and I could give more names, but I have only an hour for this debate and so I will leave it there.
When we have the shameful spectacle of the ILO calling this Bill out, Members need to think again. By rejecting this Lords amendment, the Government are, in effect, saying one of two things: either they do not know whether they break international law; or they do know but they just do not care. We ought to care, we ought not to be trailing behind in workplace protections, and we ought not to be mentioned in the same breath as Turkmenistan. We ought to be leading from the front, as an exemplar for other countries to follow and a leader on the international stage that says, “Yes, good workplace rights and strong trade unions are a key component in any prospering modem economy, and the right to withdraw your labour is a fundamental one.” However, this Bill is the hallmark of a weak Government who have run out of steam, have nothing left to offer but division and want to silence the very people who keep this country going—shame on them.
Madam Deputy Speaker (Dame Rosie Winterton)
I call the Scottish National party spokesperson
Alan Brown
It is a pleasure to follow the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders). I agree with all his comments, but I hope that Labour stays resolute on this. If it comes into government, we do not want to see another U-turn, given what we heard at the weekend.
The Minister put forward the myths again about how this Bill is about saving lives and livelihoods. I do not know how he can talk about saving livelihoods, as he is bringing forward a Bill that is going to allow workers to be sacked more easily. Workers’ livelihoods are at stake because of the Bill and the intentions behind it. I would like to put on record my thanks to the Lords for the fight they have brought on this, but I am a wee bit disappointed that the Lords amendment is only about the consultation. Even if we manage to defeat the Government tonight, the Lords amendment does not provide any additional proper protections for the unions or the workers, because it is all about consulting. At least consulting would draw out some transparency, because the Government would need to publish responses and allow the House or a Joint Committee to debate those. In itself, however, the amendment does not provide any additional protections.
Andy McDonald (Middlesbrough) (Lab)
Does it not speak volumes about the way in which this Government conduct their business that they go through a consultation process and are not prepared to publish the results of that consultation? What have they got to hide?
Alan Brown
That is a fair point. Obviously, I cannot answer on what the Government have to hide, other than to say that we know about a raft of answers that show how unworkable and prejudiced this Bill is.
Subsection 5(b) in the amendment is about consulting the ILO. The Government keep telling us that this Bill brings the legislation in the UK into line with international norms, but it clearly does not; the ILO has said that the UK already has some of the most draconian strike legislation, even before this Bill. So there is no doubt that the Government are frightened to consult the ILO because they are frightened about the answers that will come back and the evidence about how draconian this really is that will be put into the public domain when it is published.
As I say, it looks as if the Lords are going to back down after this. There is no more scheduled business to allow further consideration of the Lords message, which suggests they are not going to push the amendment beyond that. That is disappointing, especially given that the Government have tried to argue before that this is a manifesto commitment. The actual manifesto commitment was to require a minimum service for transport. That commitment is not as wide ranging, so the Lords would be completely justified in continuing to resist for as long as possible.
As the shadow Minister said, because the amendment is to consult, as opposed to what was set out in previous amendments, unions are still at risk of facing big fines. Unions are still going to comply, effectively helping employers disrupt strikes and single out workers. Worst of all, workers can now get sacked for not complying with a work notice that they have not received.
Why the Government would not even consult and publish an impact assessment on that is beyond me. Again, they know that it allows employers to unfairly discriminate, pick out the awkward squad, then discipline and sack them, with no recourse to a tribunal. Welcome, Madam Deputy Speaker, to 21st century authoritarian Britain, where sacking workers like that brings the UK in line with Russia and Hungary, not the international norms, although the Minister and Government try to tell us otherwise.
I will be voting against the Government motion to disagree with the Lords. I hope the Lords do not give up the fight, but I am frightened they will. That is why we want away from this Union, because it is certainly not working for anybody.
Richard Burgon (Leeds East) (Lab)
The Minister has let the cat out of the bag in relation to the Government’s attitude to this dreadful Bill and to amendment 2D from the other place. The Minister objected to Lords amendment 2D because it would delay the implementation of the Bill. Let us be clear: the Bill makes history for all the wrong reasons. It is the biggest attack on the role of our trade unions in our democracy for many a long year. Why are the Government so desperate to rush the Bill through? One almost thinks they cannot stomach the idea of even a small delay because they want it to be presented at the Conservative party conference as a bit of red meat to the party faithful—classic anti-trade union politics and trade union bashing.
Let us think about where we are in terms of industrial relations. The Bill, which the Government do not want to consult on properly, comes shortly after over 100,000 nurses in this country voted to take strike action—the result in that recent ballot was that 84% of nurses who cast a vote did so to take strike action. However, because of the Government’s dreadful Trade Union Act 2016, an 84% vote in favour of strike action does not count, is worthless and does not result in strike action, because the turnout was 43%.
The Government helped drive down the turnout by not allowing people to vote by electronic ballot. The former Prime Minister, the right hon. Member for South West Norfolk (Elizabeth Truss), who made such a mess of this country in her short tenure, was elected by electronic ballot of Conservative party members. Not allowing people to vote by electronic means reveals the contempt the Government have for the biggest voluntary organisations in our society—the trade union movement. They will not even give workers in our country the modern dignity of being allowed to vote online or in the workplace.
The Government object to Lords amendment 2D and do not want to consult on it. Is that any wonder? The greater the consultation that takes place in relation to this abhorrent Bill, the more it becomes clear that the Bill is a complete offence. Let us be clear: the Bill, which the Government do not want to have a proper consultation on, requires trade unions to take reasonable steps to get their own members to break trade union picket lines. This Bill requires trade unions to completely change their function in our democratic society. It is the job of a trade union to persuade trade union members to honour a strike vote, not to break a strike. We see the hand of this authoritarian Government attempting to extend into our trade unions, trying to try to use them as a tool of the state to do the bidding of a Conservative Government, or the bidding of employers. The Bill is rotten and it is no wonder that the Government do not want to consult on it. Any fair-minded person, whatever their politics, would realise that that is not the function of trade unions in our society. We have heard Ministers boasting about how this will result in people being sacked if they do not comply with the requirement to go to work.
Richard Burgon
The Minister shakes his head. If what I am saying is not true, why does he not take that measure out of the Bill, so that workers cannot be sacked for not complying with work notices? That is in the legislation. I shall be charitable to the Minister. Having listened to him in a number of debates, I sometimes thought that he did not realise quite how pernicious the Bill was, but I think that others in the Conservative party do; they know exactly what they are doing.
This anti-trade union Bill, which the Government do not wish to consult on properly, comes hot on the heels of the criminalisation of peaceful protest, which is a democratic right in our society, and hot on the heels of voter ID, when what we should be doing is making it easier for people to vote in our society, not harder. This is an anti-trade union piece of legislation that shames the Government. People can see through it.
The Government cannot even pretend to be up for proper consultation by accepting Lords amendment 2D. They know what the ILO thinks of it, they know what our colleagues in the other place think of it, and they know what the British people think of it. That is why the next Labour Government will repeal this rotten piece of legislation, if indeed it passes, and bring in an important suite of workers’ rights, because workers and trade unions in this country have had enough of being treated like dirt for the past 13 years. Let us stop this race to the bottom in workers’ rights, and instead build a democratic system—a democratic system where we can be proud of the workers’ rights in our country.
Mick Whitley (Birkenhead) (Lab)
May I draw the attention of the House to my entry in the Register of Members’ Financial Interests?
The Lords have been set an unenviable task in attempting to amend a piece of legislation as ill-conceived as this one. As a lifelong opponent of the principle of an unelected second Chamber, I am surprised to find myself now commending the thoughtfulness and diligence that the other place has demonstrated in its many sittings concerning this legislation. It has been a breath of fresh air when compared with this Government’s recklessness in attempting to rush the Bill through Parliament.
I rise in support of Lords amendment 2D. Its purpose is simple: to ensure that perhaps the most significant piece of trade union legislation to be considered by this House in more than a century is subject to appropriate scrutiny before it is added to the statute book. I wish to repeat the comments that I made when we considered the Lords amendments on 22 May. I said that no number of amendments could ever salvage this Bill. It is rotten to the core. It targets a right that should be sacrosanct in any democracy—the right to withdraw our labour.
In sectors such as education and health, the provisions of the Bill will hobble the ability of working people to fight for the dignity and fairness that we all deserve in the workplace, and make the trade unions themselves unwilling accomplices in undermining the effectiveness of their own industrial action.
Worse still, in sectors such as air traffic control or nuclear decommissioning, minimum service regulations will, in effect, amount to a ban on taking any strike action at all. Ministers have repeatedly insisted that their policies towards the trade union movement conform with international standards and our treaty obligations. That was not the view taken by the High Court last week when it quashed the Government’s law allowing employers to bring in scab labour to break strikes. The court’s verdict was damning: that the Government’s approach was so unfair as to be “unlawful” and, indeed, “irrational”.
Despite the claims made by this Government that the International Labour Organisation supports minimum service standards, the director general of the ILO has made an unprecedented intervention in voicing his concern about the effects of the Bill on workers and of the Government’s strategy of imposing minimum service requirements on workers instead of encouraging them to be negotiated between unions and management.
Most embarrassingly of all for the Government, the Bill has been slammed by their own independent Regulatory Policy Committee as being not fit for purpose. The question that all of us should be asking is why the Bill was not withdrawn the moment the RPC slapped it with a red rating in February. Why are we still debating proposals that have been condemned by not only my friends in the trade union movement but a vast swathe of trade associations and the business community? Their verdict is astoundingly clear: they do not think the Bill will work. They are concerned, with good cause, that it will make industrial relations in this country worse. They simply do not want the Bill.
The answer is simple. The Government are aware of their impending electoral oblivion. They are intent on driving through reforms that will realise their decades-long dream of a world in which workers are stripped of all their rights and left helpless at the whims of their employers. It is about time for a little more candour from those on the Government Benches.
Kevin Hollinrake
I thank all Members for their contributions to the debate. I think that it is time to agree to disagree with some of the points that have been made by Opposition Members. The Bill is compatible with our international obligations, which the Government will continue to uphold. We have announced a new code of practice, which will provide the clarity that Opposition Members have been asking for throughout the Bill’s passage. I encourage the other place to take note of the strong view of this House, and that its will should be respected.
Question put, That this House disagrees with Lords amendment 2D.
Strikes (Minimum Service Levels) Bill
Thursday 20th July 2023
(9 months, 1 week ago)
Lords ChamberRead Full debate Strikes (Minimum Service Levels) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 162-I Marshalled list for Consideration of a Commons Reason - (19 Jul 2023)
Lord Callanan
That this House do not insist on its Amendment 2D to which the Commons have disagreed for their Reason 2E.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, the House will be pleased to know that I can again be brief, as we have debated this Bill and the remaining issue at length on a number of occasions. The other place has again considered the Bill, as requested by this House. The House will be unsurprised to hear that it has come to the same conclusion as previously, again with a significant majority. This is now the third time that the other place has made its will clear, and I therefore hope that noble Lords will take that into account today.
Noble Lords last sent the Bill back to the other place with the justification that the International Labour Organization had issued new information. As my colleague, the Minister for Enterprise, Markets and Small Business, noted in the debate there earlier this week, this is ground which has already been well covered by both Houses. I therefore hope that knowing that the other place has considered the issue again, and voted with that in mind, will give noble Lords the confidence that this issue has now been extensively scrutinised.
The Minister in the other place also explained that the Government will provide clarity in respect of the reasonable steps which a union must take to be compliant with the legislation. I know that this has been a concern for the noble Lord, Lord Collins, in our previous debates. I am therefore pleased to confirm that the Government will bring forward a statutory code of practice on the reasonable steps which a union must take. We will do that using existing powers under Section 203 of the Trade Union and Labour Relations (Consolidation) Act 1992. That code will be subject to statutory consultation, including with ACAS, and will of course need to be approved by both Houses of Parliament. This consultation will provide an opportunity for trade unions, employers and any other interested parties to contribute to providing practical guidance on the steps that a union must take to make the code as practicable, durable and effective as possible.
I hope these steps go some way to reassuring the House that the Government’s plans for minimum service levels are within our international obligations and that we will provide clarity where that is required. I hope therefore that this House will now feel able to allow this legislation to pass to Royal Assent. I beg to move.
Lord Hendy (Lab)
My Lords, in form, this skeleton legislation with its Henry VIII powers defies every legislative principle, as the Delegated Powers and Regulatory Reform Committee, the Secondary Legislation Scrutiny Committee and the Select Committee on the Constitution have reported. As to content, the less said the better. Although the Government’s impact assessment was held by the Regulatory Policy Committee to be not fit for purpose, it contains the revealing analysis that, far from obviating the disruption that strikes inevitably cause, the Bill
“could mean a general increase in tension between unions and employers. This may result in more adverse impacts in the long term, such as an increased frequency of strikes for each dispute”.
No doubt that is part of the reason why employers, as well as trade unions, have opposed the Bill.
This House tried to redeem the Bill with amendments to protect workers from unfair dismissal and unions from damages and injunctions, as required by international law, but the Government’s majority in the other place rejected them. This House, in its latest modest amendment, sought to mitigate the Bill’s excesses by requiring consultation before regulations were made, but even this was rejected by the other place on Monday.
The fact is that the Bill abridges the right to strike, a right established by many international treaties to which the UK adheres. A letter written by the general secretary of the European Trade Union Confederation to the Secretary of State the day before yesterday sums it up. She said:
“It is clear that the Bill introduces provisions which weaken or reduce existing law in relation to the protection of the fundamental right to strike and which do not respect or implement ILO Convention 87”.
The Joint Committee on Human Rights said the same thing. The letter points out the specific respects in which the Bill fails to meet ILO conditions for permissible MSL legislation. Among its list of non-compliances, the letter points to the absence in the Bill of: any requirement for trade union and employer dialogue in the setting of MSLs; any obligation on the employer to negotiate an agreement with the trade union about service levels; and any independent adjudication mechanism in the event of a failure to agree.
Your Lordships’ amendment would have gone a long way to rectify these non-compliances without such remedial action. As ETUC points out, the UK will not only be in breach of ILO Convention 87 and paragraph 4 of Article 6 of the European Social Charter, but it will also violate Articles 387 and 399 of the trade and co-operation agreement. However, the Government have a problem with consultation with the social partners. Just a week ago, the High Court held that the purpose of the statutory obligation to consult before making regulations under the Employment Agencies Act was that:
“Parliament can then proceed on the basis that the case for the measure has been tested with interested parties in the sector and that their views and interests have been taken into consideration in fashioning the draft regulations which are laid before it”.
The Government’s failure to consult was, the court held,
“so unfair as to be unlawful and, indeed, irrational”.
Less than a month ago, the relevant ILO committee told
“the Government to provide information to and facilitate the dialogue between and with the social partners with a view to … improve consultation of the social partners on legislation of relevance to them”.
Of course I accept that the undertaking by the noble Lord to introduce a code of practice imports a duty to consult, but such consultation is apparently limited solely to the issue of reasonable steps. It does not require the social dialogue that compliance with international law does. In truth, as was said by Mick Whitley MP in the other place,
“no number of amendments could ever salvage this Bill”.—[Official Report, Commons, 17/7/23; col. 721.]
That is why the Labour Party is committed to repealing it.
Lord Collins of Highbury (Lab)
My Lords, I thank the Minister for his comments. I appreciate his ability to be brief, but sadly I do not think I will be able to be as brief as him on this occasion because there are, as my noble friend Lord Hendy has just raised, a number of issues outstanding.
This House acknowledged, I think from all sides, that this is a skeletal Bill. It is an example of legislating and then determining policy and procedure. It is really the wrong way around. There is not a proper process of consultation, as my noble friend has just outlined. I repeat the intention of a future Labour Government to repeal the Act because it does not have the support of workers’ representatives or employers. It is impracticable and will simply result in not achieving the objectives of the Bill the Government set out, while worsening the situation in industrial relations. Even the Government’s own impact assessments have said it could possibly increase strikes.
The position on the Bill has been one, in this House, of principled objections to the methodology used and the practical application. I stress the importance, when Parliament is starved of the ability to properly scrutinise legislation that impacts on fundamental human rights, as in this case, of the fact that we have a duty in this House to keep reminding Parliament of that situation. My noble friend highlighted that the International Labour Organization’s Conference Committee on the Application of Standards called on the Government to ensure that existing and prospective legislation conforms to the article he mentioned. The Minister has said in the past, “That’s all right because we will ensure that this legislation will conform”. I am not sure, and I do not think employers or union representatives have any confidence, that that will be the case.
What this House asked the Commons to consider was precisely what the ILO is asking the Government to do anyway: to undertake genuine consultation before implementing minimum service regulations. That means that, when regulations are published, they include an impact assessment and there should be genuine consultation, including on the protection for workers named in work notices and the reasonable steps that trade unions need to take to ensure compliance. The consultation on the selected sectors has taken place, which we have not seen the results of. We will not see those results before the Bill is enacted. Again, that is outrageous in my opinion.
On the reasonable steps the noble Lord has referred to, we have, rather late in the day, heard a Minister saying that a new code of practice will be brought forward. This is certainly an improvement on the Government’s previous position that it was for courts to decide what reasonable steps are—so unions would not even know until challenged in the courts what they may be required to do. However, we are told that the code will be subject, using existing powers, to statutory consultation, including consultation with ACAS, and the approval of Parliament. The Minister in the other place said:
“The consultation will give trade unions, employers and any other interested parties an opportunity to contribute to practical guidance on the steps that a union must take”.—[Official Report, Commons, 17/7/23; col. 713.]
What is the timetable for this? I take that Minister’s words as not simply meaning the obligation to consult ACAS without a timeframe. I hope that we will not see a rushed consultation over the August holiday period. If that is the plan, it will make a mockery of that process and people will fully understand the true intent of this Government.
I seek assurance from the Government that there will be a proper timetable. I remind the noble Lord the Minister that, on 23 January the Government announced strong action against unscrupulous employers which use the controversial practice of fire and rehire through a planned statutory code of practice. That announcement followed ACAS guidance to employers a year before. The consultation announced on 23 January ran for a period of 12 weeks, with views sought from not only interested groups but from the public. Parliament has the right to be satisfied that union workers and the public will be given the same consultation rights and period for the statutory code under the Bill as given for the fire and rehire one. We are entitled to know today that this is what the Government will do.
As my noble friend highlighted, last week the High Court said, in relation to the consultation process for the regulations that allowed agency workers to break strikes, that
“this is not a case in which the evidence is that the proposal had obvious and undisputed merit based on cogent evidence, and enjoyed strong support from representative bodies in the sector”.
It could have been talking about the Bill—and no doubt in time it will be. I hope the Minister fully understands the position of these Benches. I hope he also fully understands that the concern I have expressed, and my noble friends have expressed, is not just restricted to this side. All sides of the House fully understand the importance of protecting fundamental freedoms and Parliament having the proper opportunity to scrutinise legislation, which we have not had in the case of the Bill. I will not repeat all the objections made by the committees my noble friend referred to; they are on the record. But I hope the Minister, in his response, will be able to give us a full explanation of what he intends to do in terms of the consultation on the code of practice.
Lord Fox (LD)
My Lords, it is a great pleasure to follow the noble Lords, Lord Hendy and Lord Collins, and I completely associate myself with their critical process and legal analysis of this Bill. From the outset, this was a political Bill and I make no apology at the end of this process for making a political comment.
It may have escaped your Lordships’ notice, but there are three by-elections going on today across different parts of the country. In knocking on those doors, the number one or number two concern of the people in those houses in those communities is the delivery of the health service in this country. I refer to this Bill and the challenge that this Government have in dealing with the industrial disputes going on within the health service. It is quite clear that this Bill will do nothing to bring those disputes to an end and, if it is deployed, it would exacerbate them. Those people answering their doors and talking to politicians as they are being canvassed would love to have a minimum service level every day of the week. The Government need to solve this industrial issue as well as the service delivery within the health service, and this Bill when it becomes an Act will do nothing towards doing that.
Lord Callanan (Con)
My Lords, I thank all three noble Lords who have contributed to today’s debate. The Government always listen carefully to the views of this House.
In response to the noble Lord, Lord Hendy, I have seen the letter from the European TUC, which I read with interest. I am sure the noble Lord will accept that it is hardly an impartial referee on these matters. It is also fair to say that it had nothing new to say. We have been over all this ground many times before and have provided explanations of the type it has sought.
It is also fair to point out that, in our view, this legislation is compatible with the ILO convention, and I am sure the noble Lord will accept that there are many other ILO states that already have minimum service levels as part of their domestic legislation. We will, of course, ensure that any secondary legislation is also in compliance with all our international obligations.
I can also confirm in response to the noble Lord, Lord Collins, that the Government will launch a consultation on the draft code this summer, following consultation with ACAS. The code will be put to both Houses for approval in line with the procedure set out in Section 204 of the Trade Union and Labour Relations (Consolidation) Act, and we will consult for an appropriate period.
Lord Collins of Highbury (Lab)
Can the noble Lord be more explicit? We are just about to go into the Summer Recess. August is a month when many people take holidays. I hope that he will be able to confirm, as with the previous statutory codes, that the public consultation will start in September and run for 12 weeks at least.
Lord Callanan (Con)
I am afraid I cannot confirm that for the noble Lord. No final decisions have been taken yet, but it is our intention to get on with this as quickly as possible, so we will consult over the summer. We will leave an adequate period for responses to that consultation and then, as I said, the code will have to be approved by both Houses.
I understand the Opposition’s principled objection to this Bill. Taking on board the point made by the noble Lord, Lord Fox, I suppose all legislation is political. We are a political House at the end of the day. We are all party politicians, so it should not be a great surprise to find that legislation is also political.
We have thoroughly debated this matter now on many different occasions. The House has asked the Commons to think again on a number of occasions; they have done so and have responded. I appreciate that noble Lords opposite do not like the outcome, but it is what it is. In our view, this is a vital piece of legislation that will give the public confidence that, when workers strike—which they are fully entitled to do—lives and livelihoods are not put at undue risk.
I hope the House, despite the reservations of noble Lords opposite, will now let this legislation pass to Royal Assent.
Royal Assent
Thursday 20th July 2023
(9 months, 1 week ago)
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