Strikes (Minimum Service Levels) Bill

Baroness Chakrabarti Excerpts

2nd reading
Tuesday 21st February 2023 Lords Chamber

[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.

Strikes (Minimum Service Levels) Bill

Baroness Chakrabarti Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

[Lord Cashman (Lab)]

My Lords—

[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.

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[Lord Collins of Highbury (Lab)]

It is not funny.

[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.

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[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.

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[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.

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[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.

Strikes (Minimum Service Levels) Bill

Baroness Chakrabarti Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

I put it to the Government and the Minister that, given the weight of all the evidence that has been put to them in good faith, showing them the whole picture as we know it, it is time for them to think again, especially on the health service, which is delivering so much under so much pressure. The health service does not deserve restrictions of this type imposed on it.

[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.

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[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.

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[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.

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[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.

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[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.

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[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.

Strikes (Minimum Service Levels) Bill

Baroness Chakrabarti Excerpts

Committee stage
Thursday 23rd March 2023 Lords Chamber

[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.

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[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.

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[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.

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[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.

Strikes (Minimum Service Levels) Bill

Baroness Chakrabarti Excerpts

Committee stage
Thursday 23rd March 2023 Lords Chamber

The Bill plainly flouts that because the ultimate arbiter of the minimum service level is of course the Minister—the administrative authority. For those reasons, I beg to move the amendment.

[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.

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[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.

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[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.

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I have another basic question for the Minister: what exactly is meant by “reasonable steps” to ensure compliance? Is it a stern word on the picket line, or down the pub? Maybe it is naming and shaming members who are nervous about strike-breaking—or is it simply the union disciplining workers if they do not comply? What is a reasonable step? We need clarity, or we are flying blindfold.

[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.

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[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.

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[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.

Strikes (Minimum Service Levels) Bill

Baroness Chakrabarti Excerpts

Report stage
Wednesday 26th April 2023 Lords Chamber

[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—

[Baroness Chakrabarti (Lab)]

They said “pariah”.

[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.