Strikes (Minimum Service Levels) Bill

Lord Judge Excerpts

2nd reading
Tuesday 21st February 2023 Lords Chamber

[Lord Judge (CB)]

My Lords, this is a troublesome piece of legislation. It asks us all a very simple question: when does the right to withhold your labour—that is, to strike—cease to be a right? It answers that question too, and the answer is a bit depressing: the right ceases when, following a ministerial decree, your employer can oblige you to work, and if you fail to do so you can lose your job. That is pretty stark. I am not going to try to discuss the advantages and disadvantages of the proposed legislation or the speeches we have just heard. I am more troubled by the idea that a unilateral change in the contracts of employment of thousands of people can be made by a piece of secondary legislation. That is all this Bill is. Forgive me.

Can we start with Clause 1? That is a good place to start, is it not? Here it goes:

“The Schedule … amends Part 5 and other provisions of the 1992 Act to restrict the protection … where provision has been made in regulations”.


It asserts that this is a Bill about regulation-making. It incidentally overrules legislation that came into effect under a Conservative Government—the 1992 Act. How is it done? The Secretary of State may make regulations; we keep being told that. But before we make any regulations, can we please remind ourselves that whatever regulations a Minister may choose to make, he can change them? Not only that: he can change any Act of Parliament. He can change not only any Act of Parliament but any Act of Parliament that we have not yet seen and may yet come before us before the end of this Session. So it is a power to get rid of legislation that we do not even have. It is a rather strange thing.

Now, what does the Secretary of State do? What is his responsibility? Let us look at it. His responsibility goes this far and—lamentably, I suggest—no further:

“Before making regulations … the Secretary of State must consult such persons as the Secretary of State considers appropriate.”


He does not have to consult anybody. He can consult whom he likes. Even if he does consult people of admirable quality and dispassion, he does not have to take the slightest notice of them. That is an open-ended entitlement of the Secretary of State about how he should act. This is irrespective of overruling primary legislation. This notice which comes into effect will be produced by the Secretary of State as he or she thinks appropriate, without further consultation with anybody in the field of work, the trade union movement or anywhere else.

Having done that, he then happily drops out of the picture. What happens then, when the regulations have been made, within the six services? I declare an interest: my wife spent all her working life as a paediatric physiotherapist in the National Health Service, and my daughter and granddaughter are both teachers working in the public sector. An employer may give a work notice to a trade union, entitling the employer to identify the persons required to work and have at least this much of a consultation process, one step up from the Secretary of State:

“the employer must … consult the union about the number of persons to be identified and”—

good Lord—

“have regard to any views expressed by the union”.

The employer is not bound by them but must just “have regard to” them—that is an interesting phrase in legal terminology, and I do not wish to be the judge who has to decide whether the employer has or has not had regard to the particular views expressed by the union.

Finally, if you do not agree, paragraph 8(2) in Part 2 of the Schedule says that you can lose your employment if you do not go to work. I am not experienced enough to know, but, as a matter of sense, this dictation—from an employer against whom you are striking because the conditions he provides for you are unsatisfactory—does not sound like a recipe for a sensible solution to a difficult industrial dispute.

But, ultimately, it is the way that this legislation is before us. Once again, it deals with very important issues: this is an issue of great principle, and I understand why the Opposition say that, if they come to power, they will repeal this. This is an issue of great principle and moment for hundreds of thousands of people, and it is all being done hidden away in secondary legislation. This will not do.