Strikes (Minimum Service Levels) Bill

Lord Balfe Excerpts

2nd reading
Tuesday 21st February 2023 Lords Chamber

[Lord Balfe (Con)]

My Lords, I first draw attention to my interests as listed in the register.

This is an unnecessary Bill. As Conservative Home, the online daily Conservative newsletter, said last Sunday, it will achieve nothing and should be dropped. I have never before in this Chamber quoted Jacob Rees-Mogg, but he said in reference to this Bill in the Commons that

“skeleton Bills and Henry VIII clauses are bad parliamentary and constitutional practice.”—[Official Report, Commons, 30/1/23; col. 87.]

I ask my own side to reflect that, in a democracy, power changes, and to further reflect whether we would be happy if a Labour Government made extensive use of these fundamentally undemocratic instruments. I think we would not be. I think we would be getting up all the time and protesting about it.

To come back to the Bill, I remind noble Lords that the ILO general secretary and the United States Labor Secretary both deny backing it. They were quoted as being vaguely in favour. They are not—they are both against it. The TUC and the CBI regard it, to put it mildly, as unnecessary and likely to interfere with good industrial relations, not to build them.

I come now to my area. Within the aviation sector the Bill has been greeted with dismay. Noble Lords may remember that I am the honorary president of BALPA, the pilots’ union. The impact assessment for the transport strikes Bill, which was introduced as the initial legislation, said at paragraph 100 that the proposals could lead to greater use of action short of strike. Paragraph 101 says that the proposals could increase the frequency of disputes, meaning

“an increased number of strikes could ultimately result in more adverse impacts in the long term.”

Paragraph 103 says that it could increase operational costs for employers, with a particularly onerous burden on small operators. Finally, paragraph 106 says that it could have a

“negative impact on industrial relations, which could have detrimental impacts for all parties.”

My colleague the noble Baroness, Lady Randerson, pointed out the wide variety of what is meant by transport. What do we actually mean? We have aircraft, we have the Eurostar, we have trains, we have buses and we have school buses. There is no such thing as “transport” and this Bill is far too widely drawn. My contention is that aviation should be excluded altogether; by definition, no air service is ever guaranteed, as the captain of the aircraft must always be satisfied it will be concluded safely or otherwise they do not take off. This is a fundamental principle of aviation.

Are we saying that the Secretary of State, at least a week before a flight in question takes off, is going to assume the authority of the captain of the day and insist a flight is operated? Will they do so despite, first, the weather; secondly, the technical state of the aircraft; thirdly, without knowledge of whether sufficient crew have reported or will report for duty; and, finally, despite all the other things a pilot must consider? It has always been accepted that a pilot can personally say, “I am sorry, I just feel ill. I can’t take off”. That is an excuse. You do not send £300 million-worth of equipment and 300 passengers into the sky at the whim of a Minister. This is a highly technical operation, and, frankly, it has just not been thought through.

When faced with industrial action, airlines often decide on the day not to let aircraft take off because it puts all the aircraft in the wrong places, and trying to break a strike makes for a toxic environment, and an aircraft company does not want that.

Finally on this topic—and my noble friend Lord Greenhalgh mentioned it—we have been approached by Menzies, sellers of jelly babies, asking whether we could

“Probe the government as to whether they could include aviation ground services under the legislation.”


Is the Minister now going to get a list of which sweets can be sold by Menzies, present it with the list and say, “You must find someone to sell them”? What is next? Will Pret a Manger be covered? Will it have to produce the sandwiches?

I suggest to the Minister that it is time to go back to the drawing board. As we all know, it is an offence in English law to waste police time. This Bill is wasting Peers’ time. HMG are going to lose a number of votes on this and they are going to deserve it. When I first came to this House, the then Conservative Chief Whip told me that the difference between the Lords and the Commons was that in the Commons you won votes by numbers whereas in the Lords to win votes you had to win arguments. The fate of this Bill is going to prove her right.

We really are in desperate straits when we come up with a Bill such as this, which, frankly, is not thought through. It is not actually particularly a Conservative measure; it is more a panic measure. People are not pleading for this, and if the Government try to implement it they will soon find that public opinion has drifted away from them. This is a Bill which will never be implemented. I suggest that I am going to put down an amendment that the commencement date be after the next general election, so that we can put Labour on the spot to not implement it at all.

Strikes (Minimum Service Levels) Bill

Lord Balfe Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

[Lord Balfe (Con)]

My Lords, the noble Baroness, Lady Fox, hit the nail on the head: this is a completely unnecessary Bill. It tells us nothing and no one is demanding it, apart from the Government, who seem somehow a bit obsessed with problems which I am not sure exist.

I begin by declaring my entries in the register. I can actually top the noble Lord, Lord Cashman, as I have been a trade union member for 63 years consistently, and I still am today—and very proud of it. I am not also completely dominated by our need to respect international law. Having been in Brussels and Strasbourg, I have seen how sclerotic it often is. On the migrants Bill, for instance, there may well be a need to stand up to some of the international law provisions. But that is not the case here—there is no demand for this Bill at all.

I am not, as the noble Lord, Lord Fox, implied, trying to be Mr Micawber. The Bill is so defective that the Government will need a couple of years to sort out what it means. All the different industries and professions mentioned in the Bill have a quite different profile. Nuclear decommissioning, driving an ambulance and flying a plane are somewhat different occupations; they have different standards and necessities. What is a minimum service level? I had a delightful four hours with representatives of the National Health Service last year—I was in the back of an ambulance because I had had a fall, and I was waiting to be admitted to hospital. The workers said that, if they had more of a reception area, they would not be here, but that it was nice to talk to me as it covered half their shift.

Let us be realistic about this: a minimum service level would be very easy to find if you had a properly organised service in the first place. Yesterday I was talking to a doctor in Cambridge, where I live. Apparently, there is going to be a junior doctors’ strike on Monday, and he said to me, “We’ve cancelled some of the routine appointments so that we have enough capacity to deal with emergencies.” That is on a strike day, and that is a doctor who is covered by that strike but who is also very cognisant of the needs of the community he serves.

There may be a need for some arrangements with blue light services, but there already are lots of arrangements with them. There are not groups of workers saying, “We refuse to talk to you—we want a few people dead.” Most of the workers are very keen on providing minimum services; most workers do not like going on strike. As I am sure the noble Baroness, Lady O’Grady, will be happy to tell us, most workers never go on strike in their whole career as trade unionists. They join trade unions for protection and benefits, and to have someone to help if they run into trouble, as well as to deal with an employer who steps out of line by being racist or sexist or something like that.

I have been active as a trade unionist, and most of the work of trade unions that I experienced was welfare work. You are helping to sort out problems—and more than once people have said to me, “Which side are you on?” You find that things escalate out of any reasonable action, and suddenly you have people saying, “I’m going to get them, I’m going to get them,” and you have to say, “Calm down; you can’t. Let’s just sit down and have a cup of tea and look at what the options are.” Frankly, the trade union movement plays a big part in good industrial relations in this country. It plays a much bigger part in promoting good industrial relations than anything else. Hardly any time in a union organiser’s or member’s life is spent organising or even thinking about going on strike; it is mainly about making the work more pleasant and efficient.

These are the people who create the wealth of the country—that is what I would like the Government to remember—and if they were not there, we would have no wealth in this country. I see that we are going to have nuclear installation inspectors subject to minimum standards; but nuclear installation inspectors, as far as I know, have never been on strike, so what are their minimum standards going to be? Why are they in the Bill in the first place?

My amendment may look like Mr Micawber, but it would give the Government a chance to sort out what the Bill actually means. Apart from that, if the Government are so convinced that this is the right policy for Britain, it will give them something to campaign on at the next election. They can say, “Vote for us and we will bring this Bill into being.”

On a very final point, I served as the president of a trade union for some time; I go to meetings. I am afraid we spend far too much of our members’ money on legal services. There is an absolute demand by the executive that everything is absolutely legal. The profession of the noble Lord, Lord Hendy, makes a huge amount of money out of trade unions because we do not believe in breaking the law; we believe in adhering to the law. All the Bill will do is provide yet more challenges and yet more times when, sitting around the national executive table, we will say to the general secretary, “Are you sure we have got all the bases covered?” The general secretary will say, “I am pretty sure, but I will go back to our KC and absolutely finally check before we take this action.”

I therefore do not really think that this is necessary. It will not add to relations; in fact, it will sour them because it is an unnecessary piece of legislation. It will not be respected. Most employers do not want it. I have not got any letter from an employer saying, “Dear Lord Balfe, you are a Conservative, please go in and support this legislation”—not one letter. The Minister should think about pressing the pause button on this, because the Government have far more important things to do.

[Baroness Donaghy (Lab)]

My Lords, we have had a reference to Charles Dickens; I am going to mention Lewis Carroll, because I think this is straight out of Alice in Wonderland: you are wandering through a maze, you do not know what questions to ask, you ask a question and all of a sudden the answer is, “Off with his head”—or “Off with her head” in my case. It really is very difficult to pin things down to common-sense questions and to pin the Minister down as to what he may or may not finally include in either the Bill or the statutory instruments. I will have a go, however, because I think the noble Lord, Lord Henley, is quite right that the report we have been referring to is quite a mild report.

I was particularly drawn to the conclusions and recommendations, one of which said—I think the noble Lord, Lord Fox, has already referred to it—

“We do not consider that the Government has given clear … reasons why the current legal protections that apply to strikes and the current practice of establishing voluntary minimum service levels are no longer sufficient to balance the rights of the wider public against the rights of the employees and unions concerned.”


I think that pinpoints exactly why the Bill is just an antagonistic approach to unions, rather than a sensible set of proposals. I have a specific question for the Minister is, the report suggests several amendments in its annexe: will the Government consider its amendment 4? I am not proposing it; I am just asking if this is something that would be considered. The recommendation is:

“In deciding whether to identify a person in a work notice and in specifying the work required to be carried out by them, the employer must not have regard to whether the person is or is not a member of a trade union (or a particular trade union) or any trade union activity the person has undertaken or otherwise been involved in.”


Are the Government minded to accept that amendment from the report?

Strikes (Minimum Service Levels) Bill

Lord Balfe Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

[The Deputy Chairman of Committee (Lord Haskel) (Lab)]

My Lords, if this amendment is agreed, I cannot call Amendments 9 or 10, because of pre-emption.

[Lord Balfe (Con)]

My Lords, you could make almost the same speech on every amendment in this group, because, frankly, the Bill is ill thought-out.

I remind noble Lords of my position as the honorary president of BALPA, the pilot union, so I thought it appropriate to speak on aviation. Most of aviation is governed by safety laws which are completely irrelevant to the Bill, but which must be followed—including those established by the International Air Transport Association—and we still have some EU laws that I hope will not disappear when the retained EU law Bill is passed. The fact of the matter is that you cannot have minimum levels of service in aviation. What do you do? Do you say, “The plane to JFK must take off because it has some businessmen on it”? Do you say that of an EasyJet plane to Spain? You cannot distinguish between them.

The other fact of the matter is that airline companies do not have strikes. The whole aim of BALPA and the industry is not to have strikes; they want to solve things. The strapline of BALPA is, “Every flight a safe flight”. It sees itself to an extent like the BMA, which is also a trade union, though we often forget; it is also a professional body that comes together to provide the safest level of service possible. If you think about it, a pilot who takes a jumbo jet up into the sky has £300 million-worth of equipment and probably 300 lives sitting behind him, so the need for safety is the most paramount need of all, and it is always followed—there is never any compromise.

As far as I can gather from the Bill, the Minister would be able to prescribe a week ahead that a flight had to take off. Under the current regulations, a pilot can pull a flight right up to starting the engine on the tarmac. He can say, “I’m sorry, I just don’t feel very well—you’d better get another pilot”, and it is accepted that he can self-certify, because the last thing we want is a pilot endangering the lives of the passengers. That is also the last thing the pilot wants. The pilot and the plane are subject to a raft of safety regulations far in advance of this legislation.

If a Minister a week ahead is going to say that a flight has to take off and that they will designate a pilot, are they going to become experts in rostering? Are they going to know which pilot to put in which plane? As I am sure noble Lords will readily grasp, every plane is slightly different, and every pilot has to be trained to be the pilot of that particular make and style of plane. So you cannot just go and say, “Right, we’re going to have Pilot Jones or Pilot Smith”. You have to get the right pilot, which is what the airline industry and airline unions are very good at, because they both have the same aim.

The Bill as drafted is a total nonsense; it does not make any sense whatever. Why is this provision in the Bill? I am baffled by this, as I can see the need for some laws, but I cannot see a single shred of evidence that this law is going to do anything whatever to improve industrial relations, the productivity and wealth of the country, or any other single objective that we all have.

I am not going to speak again in the course of these amendments, because we are effectively making the same speech. You go to an industry and look at how it works and you work out that the Bill has absolutely nothing to offer. Please could the Minister bring this Government down from where they are and realise that the wealth of this country is created by the workers of this country? Those workers need a decent standard of living, which is why they go to work every day—they go to work to look after their families. Most of them are very proud of the companies for which they work, such as BA and easyJet and all the other airline companies, and this applies across the line.

Strikes (Minimum Service Levels) Bill

Lord Balfe Excerpts

Committee stage
Thursday 23rd March 2023 Lords Chamber

[Baroness Donaghy (Lab)]

Yes—“Come into my parlour”.

I attended the Wales TUC and the Scottish TUC for well over a decade—some might say I do not have a home to go to. That helped me to understand the completely different cultures of those countries and the completely different relationship that the workforce, the trade unions, employers, Governments and successive Administrations had with each other, and the respect that successive Governments had with the trade unions. It is not just that this is a damaging Bill; it is an affront to those countries that there should be some imposition of power. That is what we are talking about, not whether employers should be forced to issue a work notice but that there will be an overall power, the details of which are not known, which the Welsh and Scottish Administrations will have to accept.

We are talking here about the tone of employment relations, which has always been completely different. It has been conducted in a non-legalistic way. There have been as many strikes, and I am not saying that the services are particularly better in Wales or Scotland, but the tone of the relationship is what could be so badly damaged.

It was most interesting at Question Time today for those noble Lords who were here to hear the noble Baroness, Lady Vere, talking about the distinction between the workforce and the trade unions. I have been trying to make the point all along that this Government are doing their best to separate trade unions from their workforce. The noble Baroness was very keen to assure the House that she was not blaming the workforce for people not doing non-contractual rest-day work; she was blaming the trade unions for those members not doing non-contractual rest-day work. That in any case is a bad practice that has grown up over the years, which has really been because members have wanted a better standard of living, but are we really saying that a minimum service level will have to include this non-contractual rest-day working, or will it not include it? Or will it not be mentioned at all in any document?

The Minister is shaking his head and smiling. I realise that he must be getting very fed up of listening to all of this. Maybe that will help the Government next time to bring forward a Bill that actually has some content in, and then he will not be so bored.

I do not know how many people here watched “Boys from the Blackstuff”—some Members are certainly too young for that—but I am reminded of the character called Yosser Hughes, who went around saying “Gis a job”. In this case it is the Government saying, “Gis a power. We don’t know what we’re going to do with it, we can’t tell you yet, we promise to consult you, but gis a power.” I think the Government are hoping that, if they carry on repeating that for long enough, everyone will sit back and say, “Oh all right, let’s see what they do with it”. As far as I am concerned, that is the main principle: the Government are asking us to give them a power and not telling us how they will use it.

[Lord Balfe (Con)]

My Lords, there is a feeling growing up or being put around this House that somehow the Conservative Benches are historically against trade unions. These Benches are not historically against them. I spent 25 years in the European Parliament, and my noble friend the Minister spent some years there. I spent some time on the European Economic and Social Committee, which, as with Scotland and Wales, bases itself on trying to get a consensual view of industrial relations. If you want to improve the wealth of the country, that is the way forward. That is what made the German economy as successful as it is today: the works councils and the compulsory consultation. We seem to be in danger of drifting in the opposite direction, but I remind the Minister that the great tradition of Christian democracy in Europe, which has a much wider following than conservatism, is based on working between social partners.

This legislation is, let us say, imperfect. It has great difficulties and is almost unworkable, and I do not know why the Government are pursuing it. I hope that maybe at the end of this series of debates they will decide to pause it and not go forward. As these amendments show, it is going to be very difficult to implement, even if the Government wanted to. Set aside the local mayors, which I think are impractical; railway trains run between our countries and planes fly between them, while I am told that some services, such as organs and blood in the health service, are organised on a national basis so that people can get the best service wherever they live. We are after all in a United Kingdom, as this party often says.

I ask the Minister to look at hitting the pause button on this piece of legislation because even if it is passed it will not work, and it is not good government to pass legislation that just will not work.

--- Later in debate ---

If Ministers will not listen to the noble Lord, Lord Balfe, who is very experienced in this area—by the way, I agree with his assessment that, historically, Conservative leaders and Ministers have not always been so anti-trade union; I will not bore noble Lords again with references to Disraeli and Churchill, but they are all over the history books, so it is a shame that the Government are going down this path—and if the Government insist on the Bill and will not pause it, surely they should welcome pretty much every amendment in this group, or some version of them.

[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.

Strikes (Minimum Service Levels) Bill

Lord Balfe Excerpts

Report stage
Wednesday 26th April 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, I support the amendment in the name of the noble and learned Lord, Lord Thomas, to which I have added my name. A benefit of the Committee stage in this House is that it allows us to identify concerns that may not have been apparent when a Bill was first introduced. It is through that process of analysing how legislation will work in practice, informed by the experiences that noble Lords bring to this place, that we can flush out those unintended consequences. On a good day, the House having flagged something that is a reasonable area of concern, the Government will provide us with clarifications that show that our fears are misplaced and that all will be well. On a really good day, a Minister will acknowledge that we have identified a genuine problem and set out a path to fix it. We have just had an example of that on the previous amendment.

I believe we have done our job and identified a real gap here between the Government’s rhetoric that employers will not be mandated to issue work notices and what may happen in practice, yet the Government have so far failed to provide either a clarification that our concerns are unfounded or an acknowledgement that we have identified a real issue that they intend to fix before the Bill becomes law. In this amendment we are presenting a way to demonstrate the kind of fix that we think is needed, not to undermine the Government’s intentions in respect of the legislation writ large, but rather to ensure that it works as they themselves have said they wish to happen.

My concern is quite specific. It is that employers will be advised that they expose themselves to significant legal risk if they do not issue work notices, even where they feel that they would be counterproductive to their efforts to negotiate with their employees. The circumstances under which they may feel this compulsion are not fantastical but all too apparent if we look at broader trends in litigation. We do not have to stretch our imagination too far to see somebody suing an NHS body that chose not to issue work orders, alleging that their treatment could have been delivered if it had; a student taking action against an educational institution on the basis that it did not order teaching staff to turn up during strike days; or businesses suffering disruption as a result of transport strikes going after train operators, claiming that more service could have been provided.

Some noble Lords may have sympathy with this approach and think, “Good; if employers feel compelled to issue work orders, the Bill is working”, but the Government have said repeatedly that the work order should be voluntary and that this is not what they intend. If they wish to make work orders compulsory, they should have the honesty to say that in the Bill. They would be de facto mandated because of the threat of litigation, and if the Government do not wish that to happen, they should agree to our amendment to make that clear to employers.

It seems far from ideal to leave this confused, with the extent of compulsion in practice decided on the basis of an assessment of the threat of legal action. I fear that the Government will argue, as the noble and learned Lord, Lord Thomas, has already indicated, that this is an acceptable state of affairs and that they do not intend to change the legislation, but I hope that noble Lords will see the force of our arguments and will support Amendment 3.

[Lord Balfe (Con)]

My Lords, many people in this House will know that I have a firm belief that the best industrial relations are conducted by two parties that are trying to achieve objectives in common and are not clashing with each other. This amendment basically helps that to happen because it says that an employer will not be under an obligation to give a work notice if it does not want to. Surely the reason it would not want to is because it would worsen the industrial relations within the company or body concerned. That cannot possibly be a good objective to pursue.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

I support Amendments 4 and 5. The issue Amendment 4 addresses is a bit odd, as it creates a situation of servitude for key workers. That slightly puzzles me, because I am sure that the Minister clapped for nurses and the NHS during the lockdown and supported them then—so why not now? Perhaps he can explain that to me. It looks to me as if the Tories are taking a bad situation of their own creation and making it worse. This amendment is extremely important. I hope that the Minister, when he clapped for those nurses, realised just how important they were.

[Lord Balfe (Con)]

My Lords, this amendment really shows what a ludicrous Bill this is. The clause that we are dealing with is unworkable. As noble Lords know, I have to declare an interest as an executive honorary president of the British Airline Pilots’ Association. I have talked in this House before about the fact that this Bill allows the Minister for Transport, our good and noble friend Lady Vere, to identify a pilot and order him, a week before the plane takes off, to fly to Washington. That is ludicrous. If you live in the real world of aviation, you will know that a plane is not cleared for take-off until the pilot certifies that it should take off, something like two hours before it leaves. You have to consider weather and whether the level of staffing is correct—and then the pilot is the captain of the plane, responsible for ensuring that the alcohol levels of the staff are not breached. Unless you let people make a decision, you are just running yourself into trouble.

Aviation is about 70% unionised. Is the employer going to identify some people who are not in the union and tell them to go to work, rather than people who are in the union? You have the same group of people, and some of them are in and some are out. How are you going to decide that, and how will you decide matters such as illness? What happens if someone rings up and says, “I think I’ve got Covid”? Are you going to be able to withdraw their protection from unfair dismissal? Of course not.

This clause, above everything else, demonstrates the weakness and stupidity of the Bill. The idea of naming people in a work notice could come only from the desk of someone who has never had to do it, frankly.

I want to look at Amendment 5. The reason put forward in a note to me for the proposal in the Bill was that the minimum service levels would be far less likely to be achieved as trade unions may attempt to persuade workers not to comply with work notices. That is fairyland. Trade unions spend more of their time and money on our friend the noble Lord, Lord Hendy, and his colleagues in the law than is probably sensible. At every stage, they look at the law and say, “We must not break it”.

In my experience, the executive of a trade union, and particularly the local branches, will spend more time persuading the hotheads not to do stupid things than they will encouraging them to do so. It is, for instance, a regular occurrence that a number of British Airways staff believe that they can take actions that are clearly in contravention of the law. It is the job of the executive to say to them, “You will damage the union”; it is not the job of the executive—it never has been—to say, “Behind the scenes, do you think you could do this?” That is not the way that trade unionism works.

I say that as someone who has been involved in trade unionism, for my sins, for over 60 years. It is 60 years since I first became a branch official. Throughout a lifetime of serving in different trade union branches, executives, and now as president of a TUC union, I have always been impressed with how the workers we represented wanted to get it right. They have often had very good reasons for feeling annoyed with the employers, but the job of the union, as a structure, has been to canalise the dispute in such a way that it is within the law and is a compliant dispute that attempts to achieve the objectives that the workforce is looking for. One reason we have trade unions in this country is to provide a bit of balance.

The Bill is not even sensible. It will not work. I hope that, when it goes down the corridor, our new Prime Minister will look at it and say, “For God’s sake, let’s just bury it”. There are far more important challenges facing Britain today than passing an unworkable Bill to annoy one section of the population—not to mention the 1.5 million trade unionists who voted for the Conservative Party at the last election. They will probably vote for it again because they do not vote according to their union; they vote according to their class interests. Most of my union members vote for the Conservative Party.

Let us be aware that this is not a matter where a Conservative Government have to stand up to the unions—they are standing up to their own supporters. Ordinary members of trade unions have worked hard to help the country become the prosperous country that it is. This sort of legislation is just the sort of damn nonsense that people look at and say, “My God, they just do not understand, do they?” They do not say that the Government are trying to do something. The general reaction to this Bill, I am afraid, among my trade union friends is that the Government do not understand what they are doing. I urge the Minister to send it back down the corridor and ask them to bury it in a nice big box somewhere.

[Lord Collins of Highbury (Lab)]

My Lords, I thought that I had better interject and speak to Amendment 5 in my name and that of the noble Lord, Lord Fox.

I reiterate what my noble friend Lord Woodley said. The Minister has said on every occasion that we have considered the Bill that this is not about banning the right to strike, which is a fundamental right. I have no doubt that the Minister will repeat that when he responds to this debate. We face in this country some of the most onerous processes and procedures in order for people to exercise that right through their trade union. The statutory ballot requirements are pretty rigorous and, as the noble Lord has said previously, they can be challenged in court. Unions are very concerned to make sure that they do not breach the law, that they act within the law and that strikes are lawfully conducted.

Here we have a situation where a clause in this Bill could place trade unions in a position where they would be asked to ensure that the members who vote for industrial action—who go through that rigorous process—do not take part in that action. That is not the responsibility of a trade union. A union could face an injunction or be forced to pay damages if it is deemed not to have taken “reasonable steps”.

The noble and learned Lord, Lord Thomas, talked about the definition of “may”. Well, what is the definition of “reasonable steps”? What situation are we putting trade unions in with this vague requirement that could result in them facing legal action? If a union is deemed not to have followed the legislation, the strike could be regarded as unlawful and the protection for striking workers, such as automatic unfair dismissal protection, could be removed from all striking members, including those not named in the work notices. So, employees will not know before participating in the strike action whether they have protection, and unions do not know what amounts to “reasonable steps”, as no detail has been provided in the Bill. I think that is an unacceptable situation. We should not be passing laws that put individuals and trade unions in that position.

Of course, this is not simply my view. The Joint Committee on Human Rights concluded:

“We find it hard to see how it is compliant with Article 11 ECHR to expose any participant in industrial action to the risk of dismissal simply because a trade union fails to take unspecified ‘reasonable steps’ required in respect of those subject to a work notice. In our view, the Government has not provided sufficient justification for this consequence or explained why the minimum service scheme could not be effective without it”.


I think those are the words—I do not need to say any more. I hope the House will support Amendment 5.

--- Later in debate ---

[Lord Wigley (PC)]

I am glad of the opportunity to support these amendments and to thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for introducing them and noble Lords for the supporting arguments that have been put forward so far.

Wales has a long and honourable tradition of trade unionism. It has been constitutional trade unionism. There has been an interesting situation over the past 20 years where mainly Labour-led Governments have had to negotiate with trade unions in Wales. Of course, there have been differences of opinion, and give and take, but generally the attitude and the atmosphere have been positive. The last thing we want is to see legislation from Westminster or anywhere else cutting across that and becoming an excuse for things that then go wrong. We want the responsibility for these matters to lie with our Senedd in Cardiff and no doubt likewise in Edinburgh. For that reason, I very much hope these amendments will be passed.

[Lord Balfe (Con)]

My Lords, I point out that Scotland and Wales have separate trade union organisations. Perhaps the noble Baroness, Lady O’Grady, would like to tell us of some of the divisions, difficulties and challenges that she faced within the TUC in getting a common position. One should not underestimate the fact that both these countries have a separate tradition and, importantly, a separate structure. So if orders are going to be given and trade unions are going to be disciplined, they are going to have to be disciplined in more than one jurisdiction. I would be very interested to hear from the noble Baroness the difficulties that she sees in trying to make this work, when quite rightly the trade union movements in Scotland and Wales have separate structures, often separate policies, which may be congruent but are separate, and separate ways of existing and negotiating.

[Lord Kerr of Kinlochard (CB)]

Speaking as a Scotsman and a unionist, I strongly support the point made by the noble and learned Lord, Lord Hope. It seems to me that if one is to maintain the union, it is important to maintain the devolution settlement. This Bill undermines the devolution settlement.

Strikes (Minimum Service Levels) Bill

Lord Balfe Excerpts

Consideration of Commons amendments
Thursday 8th June 2023 Lords Chamber

[Lord Balfe (Con)]

My Lords, can I make a simple point? This is nonsense, because all the services are devolved, as has been said. I am not totally in agreement with the noble and learned Lord, Lord Thomas, but these are probably not reserved powers. Even if they were, how on earth can a Secretary of State for Health in Elephant and Castle or wherever he now lives make rules about hospitals in Glasgow, fire engines in Edinburgh or education establishments in Aberdeen? It just will not work. For that reason, I am very dubious about this legislation. It does not apply to Northern Ireland anyway. Putting it into a Bill is silly—that is the only word for it—because we are being asked to pass legislation which manifestly will do no good and will not work, and I am sorry that the Government are pursuing it.

[Lord Collins of Highbury (Lab)]

My Lords, it is a sad fact that this Bill so casually breaches the Sewel convention, which exists to uphold democratic accountability and provide for stable provision of public services. Wherever you live in the United Kingdom, nothing should interfere with those basic considerations. They dictate how services are designed and delivered and who has a say over them, whether that be in the hospital you are rushed to or the school you take your children to. In overriding Parliaments in Wales and Scotland, United Kingdom Ministers are treating those services as incidental or of lesser significance and weakening the say of patients and parents.

This is a problem not just for Wales and Scotland; it is a problem for England and the entire United Kingdom when the Government so regularly choose to sow confusion and division by breaching a convention that exists to help prevent both. We should not be in a position where a former Lord Chief Justice for England and Wales is forced to spell this out in relation to so many Bills. It is a measure of the Government’s consistent course that the noble and learned Lord, Lord Thomas of Cwmgiedd, is put in such a position. I hope that the points he made will be taken on board, because the road that is going to be continued with is very dangerous for the union. That is why it is so important that Ministers listen.

I want to speak also to the other Motions in this group, which I had hoped the noble Lord from the Lib Dem Benches would move because I was intending to quote him. Nevertheless, on Motion B1, on which we are to hear from the noble Lord, across this House there is serious concern that, once again, Parliament is being sidelined. It is a fundamental issue of accountability and democracy. The Regulatory Policy Committee said that the impact assessment for the Bill is “not fit for purpose” and

“makes use of assumptions in the analysis which are not supported by evidence”.

Again, policy comes later and legislation first; it is ridiculous. We should not have that sort of situation, especially as it impinges on fundamental rights, particularly the right which the Minister constantly says he is prepared to protect: the right to strike.

Employers as well as unions share concerns that the provisions are unworkable and have the opposite effect to that claimed by the Government, will damage co-operation and will undermine voluntary agreements that deliver minimum service levels, the very thing that the Bill is meant to address. This is an imposition and simply will not work. The Delegated Powers Committee said that ministerial powers to set minimum service levels through regulations and define what constitutes a relevant service are inappropriate in the absence of convincing explanation by Ministers. Throughout Report, we heard no convincing arguments on this. The fact of the matter is that, when we heard from Ministers responsible for relevant sections of the Bill, they all said that voluntary arrangements are best and that they work. But, when you undermine those voluntary arrangements, you put the public—the thing that you want to try to protect—at risk.

As the noble Lord, Lord Fox, said on Report—I will have to quote his speech from then rather than today—

“This amendment seeks to bolster Parliament’s oversight. It would require a consultation to be carried out and … reviewed by a committee of each House of Parliament”,—[Official Report, 26/4/23; col. 1223.]


prior to regulations being made. This is absolutely essential if we are to see good legislation rather than simply negative narratives. Those consulted would include relevant unions, employers and other interested parties across the United Kingdom. This is vital to ensure consistency. I conclude by saying that I hope the noble Lord, Lord Fox, will seek the support of the whole House.

--- Later in debate ---

[Baroness O’Grady of Upper Holloway (Lab)]

My Lords, this Motion seeks to uphold a principle long established in British law: that workers on strike are protected against the sack. Noble Lords will recall the concerns of the noble and learned Lord, Lord Judge, at Second Reading. He said that

“this is a troublesome piece of legislation. It asks us all a very simple question: when does the right to withhold your labour … cease to be a right? It answers that question too … the right ceases when, following a ministerial decree, your employer can oblige you to work, and if you fail to do so you can lose your job”.—[Official Report, 21/2/23; col. 1568.]

Not since the Second World War have a UK Government taken power to facilitate the requisitioning of people to work against their will. This would make the UK an outlier in Europe and flies in the face of human rights, equality and ILO conventions as reaffirmed by the Government in the EU–UK Trade and Cooperation Agreement. The Government have succeeded in uniting employers, unions, the devolved nations and service users against them. In the interests of transparency, I repeat that Labour is 100% committed to repealing this bad Bill.

My Motion returns to the core concern: that striking workers selected by the employer they are striking against can be forced to work or face the sack. Remember, this legislation would unilaterally change the employment contracts of potentially millions of people—and all through secondary legislation with no proper parliamentary scrutiny or accountability. Minimum service levels determined by a Secretary of State could be set up to 100% and require staffing levels to match. The union may have jumped every hurdle to secure a lawful ballot and the worker may have democratically voted to strike, but protection against the sack will be whipped away by an employer simply putting their name on a piece of paper. The worker may not even have received the work notice; there is no obligation on the employer to make sure that they do. Their automatic protection against dismissal will be annulled. This is manifestly unjust.

Remember, too, that minimum service levels apply only to strike days. For the rest of the year, a Secretary of State can close fire stations, see rail services fail, see asylum seeker backlogs grow, increase class sizes and let NHS waiting lists—shamefully now at 7.3 million—soar. I have listened carefully to the debates in both Houses. Ministers are trying to sweep the issue of sackings under the carpet.

On 10 January, the then Business Secretary Grant Shapps said it was wrong to frighten people about their jobs. The Minister has said on many occasions, including on 21 February:

“This legislation is not about sacking workers”.—[Official Report, 21/2/23; col. 1563.]


On 22 May, the Under-Secretary of State told the House of Commons that

“nobody will be sacked as a result of the legislation”.—[Official Report, Commons, 22/5/23; col. 103.]

The official reason from the Commons for rejecting my original amendment is that

“for the legislation to be effective, it is necessary for there to be consequences for an employee who fails to comply with the work notice”.

So the consequence of exercising the human right to withdraw your labour is the removal of protection against unfair dismissal. In a free society, that is chilling. The very workers Ministers thanked for their heroism during the pandemic and stood on doorsteps to clap can be punished for striking with instant dismissal.

Key workers have already sacrificed so much for the rest of us. Unless the Government accept this amendment, Ministers now expect them to sacrifice their right to strike, or pay the price with their livelihoods. I sincerely hope that my amendment will be supported in this House and that it will give the opportunity for the Government to listen and think again. I beg to move.

[Lord Balfe (Con)]

Noble Lords will not be surprised that I agree with the amendment as tabled. I have been a student of history for many years. You do not requisition labour except in times of dire national emergency. We did not even requisition it at the outbreak of the Second World War. Conscription did not come in until half way through the First World War. To deprive a person of the liberty to decide whether they go to work is something that is done carefully and very seldom. I think this goes far too far. It is an imposition not only on the workforce but on the trade union movement.

We spend a lot of time saying how much we want to build a prosperous Britain, but I remind noble Lords that 60%-plus of trade unionists have a higher education degree or more. We are not dealing with the trade union movement of the 1920s. We are now dealing with a trade union movement on which Britain depends for its prosperity. The people who look after the skies, fly the planes, run the National Air Traffic Service, keep our nuclear power plants going and manage our railways are highly skilled people who are in trade unions because they see a trade union as being a way of defending their interests.

Sadly for the party opposite, some one-third of them do not see that party as being the one that will deliver their political future. But that is a good thing, because I do not believe that we want sectarian trade unions. I want people to join trade unions because they want to better the welfare of their country. Taking steps such as this will just alienate people. They are not the sort of steps where people are going to be happy and say, “Oh it’s a really good thing”.

As for minimum service levels, I live in Cambridge. We seem to have had lots of strikes this year, but there has never been one that prevented me getting here, because many of the unions have a harder job keeping their people out on strike than getting the original ballot to put them on strike because, when push comes to shove, a lot of them do not wish to lose the money that they lose. So I think we need to be realistic about this.

All we are doing here is heating up the atmosphere and making it harder for the reasonable people in trade unions to make this country work. Every trade union has within it a group of people who hate strikes; they regard them as being the last thing they want, because it is a sign of failure. So I say to the Government as a whole—because it is not just this Bill—for goodness’ sake, make peace with organised labour; it is fundamentally on your side. It is much more on your side than some of the people who are contributing to the political parties of this nation and doing so for reasons which I would not say are particularly honourable. So please, Minister, send this back to the Commons and look for a compromise. I certainly will not vote for it to go again because I believe that the Commons must, in the end, have its primacy; that is why we have it. But it is quite legitimate to send this back and I ask that, when it gets there, our Ministers on our Front Bench say, “Look, there are very genuine reasons for this. Please try and give us some concessions”.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I will say very briefly I have no doubt that the Government do not want to lead to the sacking of workers through this Bill. However, when the Minister seeks to reassure us with the conclusion that it will be left to the discretion of the employer, I say to the Minister that those are dread words for anyone who is an employee of said employer if you are in dispute. As this Bill is about enforcing consequences, nay punishment, I do not care whether the Minister intends that people are sacked, I simply point out that that could be the consequence even against what the Government want. I hope the Government will reconsider this and bear in mind that it is to do with freedom, rather than coercing people: the freedom to go on strike and withdraw your labour, which is something that all sides of this House should support.

Strikes (Minimum Service Levels) Bill

Lord Balfe Excerpts

Consideration of Commons amendments
Tuesday 4th July 2023 Lords Chamber

[Lord Pannick (CB)]

My Lords, I support Motion A1 for different reasons. The proposal by the noble Lord, Lord Collins, makes it much more likely that, if implemented, the Bill will comply with the United Kingdom’s obligations under the ILO convention and, therefore, under the European Convention on Human Rights. The Minister expressed concerns about delay in implementing the Bill. There is no point in having a Bill that is speedily implemented if it does not comply with our obligations under the ILO convention and the European Convention on Human Rights. I hope that the Government see the good sense in this Motion and recognise that it is in their interests to have a Bill that is effective and lawful.

[Lord Balfe (Con)]

My Lords, I will start with three words of the Minister: “much-needed legislation”. I have not had a single email asking me to support this Bill or a single letter. No Conservative trade unionist has come to me and said, “This is a really necessary piece of legislation”. Actually, it is a nonsense of a Bill. It will not work. I support what was said by the noble Lord, Lord Pannick, which is about the only way of ever getting it to work, but then we have to ask whether it should work. The fact is it should not, because it goes too near people’s rights in industrial relations.

I quote from the former Business Secretary, who is not someone I normally quote. Jacob Rees-Mogg said:

“This Bill is almost so skeletal that we wonder if bits of the bones were stolen away by wild animals and taken and buried somewhere, as happens with cartoon characters”.—[Official Report, Commons, 30/1/23; col. 89.]


It is a disgrace of a Bill.

I will not delay the House for long. I am dubious about whether we should send it back yet again, because of the doctrine of the primacy of the lower House, rather than because I disagree with the amendment. But I ask the Government to stop passing legislation like this, which is a nonsense. I seldom welcome what the Labour Party says, but it will certainly be held to that word “repeal”. If it gets into government—and, you never know, it might one day—my first Written Question will be, “When will you bring forward a Bill to repeal this?”

[Lord Fox (LD)]

My Lords, it is a pleasure to support the amendment, as set out so thoroughly and excellently by the noble Lord, Lord Collins. I have very little to say; I will make just three points.

First, noble Lords who have been observing will remember that on a number of occasions I have proposed amendments that try to give Parliament more say on what is going on. Having got to where we are, I am happy to subsume that objective within the amendment that the noble Lord, Lord Collins, has set forward, but it remains an important and missing element in the Bill. We should not forget that.

The noble Lord also set a lot of store by the recent ILO announcement. He is right to do so, but this amendment is necessary with or without it. The announcement makes it clear to us on these Benches that the Commons should be given another chance to reassess the Bill in the light of the details coming in from the ILO.

Finally, the Minister talks about delay. The first iteration of this Bill was drafted and laid before Parliament about a year ago. If the Government really are that breathless about getting this on the statute book, they could have moved a little quicker. This is about politics, not actually doing anything real out there. The noble Lord, Lord Balfe, is right in that concern. Because of that, we will certainly support the noble Lord, Lord Collins, if he chooses to put this to a vote.