Strikes (Minimum Service Levels) Bill

Lord Hendy Excerpts

Committee stage
Thursday 23rd March 2023 Lords Chamber

Moved by

[Lord Hendy]

18A: The Schedule, page 3, line 31, at end insert—
“(5) Regulations may not prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action; or create an offence.”Member’s explanatory statement
This amendment is intended to ensure that the regulations do not breach Article 11 of the European Convention on Human Rights by permitting the penalisation of individuals for exercising their right to strike.

[Lord Hendy (Lab)]

My Lords, I shall speak to three of the amendments in this group; they bring into discussion matters of international legal obligation. Amendment 18A deals with protection against the excessive use of the regulations.

I ought to begin by reiterating something the noble Lord, Lord Allan, mentioned earlier, which is that we are dealing here with fundamental human rights. The right to strike is a fundamental human right. It has been held to be a right protected by Article 11 of the European convention in a series of cases, beginning with Unison v the United Kingdom. It is protected not only by Article 11 but by many other international treaties ratified by the UK. In fact, it is protected in many national constitutions; more than 80 protect the right to strike. Of course, it is not unlimited and there are always restrictions in one way or another, but its fundamental nature is that it is a human right.

So too is the right to bargain collectively, which was held by the European Court of Human Rights to be an essential element of Article 11 in the case Demir and Baykara v Turkey. The significance of that is that the right to strike is fundamental to the right to bargain collectively—in other words, to the protection of workers’ living standards. As was said 70 or so years ago, collective bargaining without the right to strike is effectively collective begging.

The right to strike has been lawful in the UK since at least the Trade Disputes Act 1906. There is no further justification, after the many Acts restricting that right since 1980, for yet further restrictions or limitations on the capacity of workers to defend their living standards. In particular, the European Court of Human Rights guarantees through Article 11 that strikers shall not be penalised for taking part in a strike. There are many cases to that effect, notably Danilenkov v Russia and Ognevenko V Russia.

The purpose of my Amendment 18A, given the breadth of the power to make regulations in this Bill, is to clarify that the Government will not use that power to impose an obligation not to exercise the right to strike or to penalise strikers specifically by creating a criminal offence. If that is what the Government intend or merely contemplate, the noble Lord will no doubt say so. If that is not what the Government intend, then Amendment 18A will cause no inconvenience.

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[Lord Callanan (Con)]

I am happy to give the noble Baroness the commitment she seeks. There is no intention to create any criminal offence within this Bill; it does not do that, and it is absolutely not our intention.

On her follow-up question, the provisions in the TCA relevant to minimum service levels include commitment to ILO conventions, non-regression and rebalancing. Enforcement mechanisms vary, depending on the particular provisions. For the non-regression clauses, enforcement mechanisms include consultation and escalation, involving panels of experts and potential rebalancing measures, all of which would take place at an international level and cannot bring any claims in the domestic courts. I hope that gives the noble Baroness the reassurance she is looking for.

[Lord Hendy (Lab)]

My Lords, I am very grateful to the Minister for the clarity of his answer, and to all noble Baronesses and Lords who participated in the debate. I will not do them the disservice of attempting to summarise their speeches.

Let me deal with two points arising from what the Minister has said. First, he asked whether my intention is to kill the Bill. It would certainly be my desire, but that is not the effect of these amendments, for sure. He says Amendment 18A and the other amendments would prevent minimum service levels being set. That is simply wrong, as a matter of law. There is nothing to prohibit the minimum service levels being set. What the amendments propose is that the minimum service levels be set in such a way that, first, they cannot penalise workers for going on strike—individual workers who are requisitioned to provide service under a work notice should not be penalised, in accordance with the jurisprudence of the European Court of Human Rights—and, secondly, they comply with the standards of the ILO and the European Social Charter.

That brings me to my second point, which is the importance of the ILO. I say this with the greatest respect, but I am not sure the Minister has quite understood the position of the ILO in the hierarchy of international law so far as the United Kingdom is concerned. Before I explain that, I will make one thing clear: the Minister read a passage from one of the supervisory bodies of the ILO—it was in fact the committee of experts—and suggested that I had not quoted it. I read that very passage on to the record earlier this afternoon; I think Homer might have nodded briefly and missed that. The Minister said that the decisions of the ILO are not binding. In one sense, of course, that is true. Britain was the first country in the world to ratify Convention 87, which is the most ratified of all the conventions of the ILO. It is an international treaty and we are bound by it, but I agree that it is not binding in domestic law.

Secondly, ILO conventions and their jurisprudence are taken into account by the European Court of Human Rights in interpreting the various articles of the European convention, particularly Article 11. If you want to know what Article 11 has to say about the right to strike, it is no good looking at the text of that article. What you have to look at are the decisions of the European court. Every one of them refers to the jurisprudence of the ILO and the European Social Charter in defining what permissible restrictions there may be on the right to strike.

The third reason the ILO is so crucial is because of the trade and co-operation agreement. This is the point I was endeavouring to communicate to the Minister, but I think I failed to do so. I read a few words from Article 399 of the trade and co-operation agreement, but let me read a sentence. Article 399(2) says that

“each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions”.

So we are bound by the fundamental ILO conventions. Article 399(5) makes specific reference to implementing the provisions of the ILO conventions ratified by the UK and the provisions of the European Social Charter ratified by the UK.

It is not a question of the ILO interfering in the domestic jurisdiction of British courts or the British Parliament. We have chosen to be bound by the provisions of the ILO—a choice that we repeated in 2021 when we ratified the TCA. The fact of the matter is that we do not comply with the requirements of the ILO in relation to minimum service levels, particularly—I mentioned this earlier, but the Minister did not deal with it—because the ILO requires that minimum service levels are set with the intervention or input of the social parties, particularly the trade unions, and that there should be a specified mechanism for resolving any disagreements. That is not what the Bill provides, so we may well be in breach. Having said all that, I beg leave to withdraw my amendment.

Amendment 18A withdrawn.

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[Lord Callanan (Con)]

They lose their protection only if they do not comply with a work notice. The whole principle of this—as the noble Lord has studied industrial relations, he will understand—is that, for a strike to be lawful, effectively you are breaking the contract you have with your employer. If the strike is lawfully called, you are entitled for the purpose of industrial action to break that contract. This merely reinstates that contract between you and your employer. If a work notice is issued and you do not comply with it, it would be treated as an unauthorised absence. There is no intention to say that that will result in dismissal. I would have thought that that would be very much a last course. As I said at Second Reading, we do not believe it will result in people being dismissed. We believe people will comply with the regulations and the law, and that the Bill will have the effect that we intended.

[Lord Hendy (Lab)]

I am sorry but I did not quite understand the Minister. I can see that dismissal for refusing to comply with a work notice might be a matter of last resort for the employer, but we are dealing here with the potential for bad employers to take the opportunity to sack somebody, and they might sack somebody without notice. If they do that, there is no possibility at all of the worker taking up a grievance. I do understand what other legal avenues there might be for such a worker—I can visualise none.

[Lord Callanan (Con)]

I was responding to the point I was asked about, and I made the point that, under the Bill, it is clear that an employer must not have regard to whether a worker is or is not a member of a union when issuing the work notice. I was outlining procedures that they could then follow if that was the case. Ultimately, they could challenge it in court, and that would be a matter for the courts.

I was going to go back to the point from the noble Baroness, Lady O’Grady, but I see that the noble Baroness, Lady Randerson, wants to intervene.

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[Lord Callanan (Con)]

I do not accept the word “victimised”. A work notice effectively says that somebody has to fulfil their whole working contract as normal, whereby they come into work and get paid for it. That is not victimisation in any conventional sense of the word.

[Lord Hendy (Lab)]

The Minister raises Section 146 of the 1992 Act, which protects against detriment on union grounds, as he rightly says. But “union grounds” means either union membership or union activity, and Section 151 is the same protection against dismissal on grounds of union membership or union activity. Can the Minister explain why only union membership is protected in this Bill and not union activity?

[Lord Callanan (Con)]

It is because, as we already said, Section 146 of the Trade Union and Labour Relations (Consolidation) Act already provides a remedy for workers who are discriminated against on union grounds. That section will remain applicable here, as I said earlier.

[Lord Hendy (Lab)]

I apologise for intervening again. The point is that Sections 146 and 151 specify membership and activities, whereas this Bill protects against discrimination on the grounds of union membership alone. If the same protection against union activity is required in Sections 146 and 151, it should be required here as well. The obvious implication, if you were arguing a case in court, is that that protection is not given under this Bill, otherwise it would have been included.

[Lord Callanan (Con)]

I will seek further legal advice. I am not a lawyer, but it seems to me that if the provision already exists in other applicable legislation, there is no need to duplicate that provision in another statute. I will certainly check that with the lawyers for the noble Lord.

Amendment 29 seeks to require the employers to be satisfied that the work notice does not identify more people than reasonably necessary before giving a work notice. However, as we set out in new Section 234C(5), the employer is already required to not identify more persons in the work notice than are reasonably necessary for the purposes of providing MSLs.

Amendment 30, meanwhile, seeks to require the employer to assess the equality implications of the work notice. Again, in our view, this is not necessary. The Bill does nothing to reduce the existing obligations of employers under the Equality Act 2010. As I said, there is an existing legal provision that continues to apply. There is no need to restate it.

Finally, Amendment 31 seeks to require the employer to assess the health and safety implications of the work notice and consult health and safety representatives. The Government’s view is that the current requirements in the Bill strike the right balance between the views and perspectives of employers and unions to enable a reasonable and fair work notice to be issued. As I have said, the Bill explicitly requires that employers must consult the relevant trade union and have regard to its views before issuing a work notice.

Adding any further steps or requirements to this process will result in disproportionate and costly burdens for employers and could result in delays to the issuing of a work notice by the employer and therefore delays to minimum service levels being applied. I fully accept that this may well be the purpose of the amendment, but I hope the Opposition understand why the Government cannot accept it. Additionally, when drawing up work notices, employers must still adhere to the relevant requirements set out in existing health and safety law. That is unchanged by this legislation.

For these reasons, the Government resist these amendments.

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[Lord Fox (LD)]

My Lords, the Minister may feel a sense of déjà vu in this group, but the point is to turn the focus to the individual worker named on the work order. This is not about the union or the company; it is to amplify the effect that this Bill can have on the individual. That is why I am happy to present Amendment 32 and to support the other two amendments in the group.

Amendment 32 would protect employees from the detrimental action of not complying with a work order. The point here is to amplify that, at the moment, failure to comply with a work notice could be regarded as a breach of contract. This amendment seeks to remove that possibility. Why? Because we are looking at a list that is prepared by an employer, with no sense of what criteria that employer is using to deliver the list. The employer assesses the number of people, and indeed the names of those people, who are required to produce a minimum service level that a Minister has decided with very little recourse to Parliament. It is the individual who is at the end of that chain, over which they have no control or power whatever. That is the point I seek to emphasise here. It is the individual at the end who will carry the can for this Bill, if it becomes an Act.

I have proposed this amendment because I want to emphasise very clearly that, although the Minister says the Bill is not about wanting to sack people, it can, and because it can, it will be used in the future to sack people for not complying with work orders—work orders produced in a process over which employees have essentially no power or ability to appeal whatever. It is an absolute infringement of their freedom. That is why I propose this amendment. Under the Bill, the employee could be sacked for taking strike action that has been agreed by a democratic ballot, it having gone through all the hoops that the Government require such ballots to observe. Because the employer has decided to put them on a list, the employee cannot do that.

From everything that has come from the Dispatch Box so far, I think it will be hard for the Minister to understand this. However, it is something my colleagues on these Benches and I have discussed a lot, and which we find to be a really important element of the Bill. It is about the relationships between unions and their employers, and between the employers and the Government, but in the end, it is about a fundamental individual right, and this Bill removes that right. I beg to move.

[Lord Hendy (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Fox. My Amendment 32A simply amplifies the noble Lord’s amendment and takes it a little further.

As I understand it, and the Minister will correct me if I have misunderstood the Bill, the consequence of being requisitioned and then refusing to work during a strike is that there will be no protection from unfair dismissal. As many other Members of the Committee have already said, if that is the case, bad employers—of which there are some—will use that as an excuse to be rid of people who they regard as trouble-makers, whether or not they are union activists.

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[Baroness Noakes (Con)]

The purpose of the Bill is not to remove protection for unfair dismissal; the purpose of the Bill is to ensure that minimum service levels can be guaranteed for those who rely on the services, and we are trying to find practical ways through that. I was inviting noble Lords to find ways did not simply rip the heart out of the Bill.

[Lord Hendy (Lab)]

I just say to the noble Baroness that there is nothing wrong with conformity being voluntary. The whole basis of the ILO jurisprudence is that minimum service levels and requisitioning should be agreed voluntarily between the unions and the employers. In most of the countries of Europe where they have minimum service levels, volunteers are sought to provide the minimum service. That is also true in this country. We have been hearing for days about the local agreements that are reached in all the six sectors identified here.

That is done on a voluntary basis, and the people who do the work volunteer to do it. They speak to their union, and the union says, “Somebody has to do it; you’re going to do it”, and they say “Okay, fine if that is the price of having the industrial action and bringing pressure to bear to maintain our standard of living, that is the price I am prepared to pay”.

There is nothing wrong with voluntariness. It does not detract from the rest of the machinery of the Bill in setting minimum service levels and issuing work notices, if that is really what the Bill is intended to do.

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[Lord Hendy (Lab)]

My Lords, I shall speak to Amendments 33 and 34. I share my noble friend Lord Collins’s outrage at this proposal. It is one thing to set minimum service levels and another thing to specify requisition notices by way of a work notice, but to require trade unions to organise themselves so as to break their own strike is a step that has never before been taken in this country and, so far as I am aware, is not required in any other country in Europe.

I remind the Committee that the provision in the Bill that we are seeking to discuss says

“the strike is not protected as respects that person’s employer if … the union fails to take reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice.”

So the obligation on the union is to

“take reasonable steps to ensure”

that all members comply with the notice. That is a very heavy obligation to put on unions. In principle it is objectionable, but the extent of it makes it even more so.

I cannot develop the objection on principle further, but there are some practical considerations here that perhaps the Minister can consider. We are envisaging a work notice given by the employer to the union, setting out names of a number of workers who are required to work and the work that they are required to do; we remind ourselves that, at the end of the Bill, it is said that that can be on a daily basis. If you have one employer and one strike affecting a small number of workers, that may be a relatively easy obligation to comply with.

However, I remind the Minister that the Bill applies to the education service. I have just looked up the Office for National Statistics site, which tells me that there are 32,226 schools in this country—although in fact I understand from the National Education Union that it balloted only some 24,000-odd of those. Think of that: even if we assume that only half the employers decide to supply a work notice, on a daily basis the unions are going to get 10,000 or 12,000 emails with a list of teachers who are required to be in. The union then has to set that list against its own membership database in order to determine which of them are members of the union, and then has to communicate with each one of them in order to demonstrate that they have taken “reasonable steps to ensure” that those members comply with the notice. This is just nonsense, is it not? It really must be.

Part of the problem is that the Bill does not define “reasonable steps”—that will be left to the courts to determine. I have done enough of these industrial action cases over the last 40 years to know that employers’ barristers—all friends of mine—are going to use every argument in the book to demonstrate that the union has not taken the “reasonable steps” that the employer says it should have. One of those, of course, will be to say that the union did not threaten to discipline any members who refused to comply with the notice or expel anybody, and to ask what it did do.

All of this is against the background of a union having committed itself, after a vote in favour by the members—a vote which meets all the thresholds—to advancing a strike. All the publicity that goes out from the union’s website and journal and in emails to members will say that it is calling a strike on, say, the 24th of the month, starting at midnight, and calling for members to join the strike, go on the picket line and participate—this is their fight and their struggle for better pay and conditions, or whatever it is. However, the union has to demonstrate that it identified those members appearing on a work notice in order to show that it took reasonable steps to ensure that those members complied. This is simply not realistic, and it is not acceptable.

[Lord Fox (LD)]

Following on from the noble Lord, Lord Hendy—I apologise for butting in—it is not quite as simple as that. What happens if, of the employers list, 30% of them go off sick? Who is accountable for filling in the gap? Is it the union? Does it have to take “reasonable steps” to find substitutes? The Minister shakes his head to say that it does not—that is good. Perhaps when he replies he can explain what happens in the event of a significant number of those people going off sick.

I will not add any more, as I am sure there will be plenty from the Benches of His Majesty’s Opposition.

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[Lord Fox (LD)]

My Lords, this is something of an hors d’oeuvre for the next group, so I will save my comments on this issue—although I thoroughly agree with the noble Baroness—for Amendment 37, which I consider to be a meatier version of the same issue. This is clearly starting the move to the territory where we give Parliament the opportunity at least to scrutinise, if not amend, what comes before it. We will come to more of that in a few minutes.

[Lord Hendy (Lab)]

My Lords, at the risk of saying what I said earlier, if this amendment is not accepted by the Government, that presents a problem to the whole House as to what is to be done about Bills that do not conform to the elementary requirements of various committees, where detail is not published in the Bills but reserved to regulations. That problem will have to be confronted if the Government are not prepared to accept this very modest amendment, as my noble friend Lady Chakrabarti put it.

[Lord Callanan (Con)]

I thank noble Lords for their contributions to this debate. To start with the question from the noble Lord, Lord Collins, about the Government’s response to the reports from the Delegated Powers Committee, the Constitution Committee and the Joint Committee on Human Rights, I am happy to confirm that I expect to be able to respond to those reports before Report.

This amendment tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, requires indicative minimum service levels to be set out before regulations can be made for that service. The Government recognise the importance of relevant parties having sight of a minimum service level before it is applied. That is why Secretaries of State must consult on minimum service level regulations and why Parliament will have an opportunity to contribute to the consultation and scrutinise those regulations, which are subject to the affirmative procedure, as I have said before.

The effect of this amendment is superfluous, given that all parties will be able to know the proposed minimum service levels once regulations are laid in the usual way. This approach ensures that the implementation of MSL is not significantly delayed, thereby not extending the disproportionate impact that strikes can have on the public. I am sure that the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, will understand, if not agree, why the Government cannot accept the amendment.