Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022
(2 years, 5 months ago)
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21:10 - Division on Lord Collins of Highbury’s amendment to the Motion - Ayes: 80 / Noes: 96 - Lord Collins of Highbury’s amendment to the Motion disagreed.
Lord Callanan
That the draft Regulations laid before the House on 27 June be approved.
Relevant documents: 7th and 9th Reports from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument).
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, I will also speak to the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022, which was laid before the House on 24 June 2022. The purpose of the regulations is to lift the current ban on employers bringing in agency staff to help them cope with industrial action. The other instrument makes long-overdue changes to the maximum levels of damages the courts can award against trade unions that take unlawful industrial action.
I will start by explaining why the Government are making these changes. Our trade union laws are designed to support an effective and collaborative approach to resolving industrial disputes. They rightly seek to balance the interests of trade unions and their members with the interests of employers and the wider public. While the Government continue to support the right to strike, this should always be a last resort. The rights of some workers to strike must also be balanced against the rights of the wider public to get on with their daily lives. Strikes can, and do, cause significant disruption. This is particularly the case when they take place in important public services such as transport or education.
It cannot be right that trade unions can, as we saw in the case of the recent rail strikes, seek to hold the country to ransom if their demands are not met. Some trade unions appear to us to be looking to create maximum disruption in a bid to stay relevant, rather than constructively seeking agreement with employers and avoiding conflict. In light of this, the Government have reviewed the current industrial relations framework and have come to the conclusion that change is needed.
The first change we are making is to remove the outdated blanket ban on employment businesses supplying agency workers to clients where they would be used to cover official industrial action. Of course, employers can at the moment already hire short-term staff directly to cover industrial action, but this change will give them the ability to work with specialist employment businesses to identify and bring in staff. This change does not in any way restrict the ability of workers to go on strike. However, it will give employers another tool they can use when trying to maintain the level of service they offer to the public.
This is a permissive change. It will not force employment businesses to supply agency staff to employers to cover strikes, agency workers will still be able to decline any assignments they are offered, and the right to strike is unaffected. This change is simply about giving both employers and employees more freedom and flexibility to decide what works best for them—a freedom that the current outdated regulations deny them.
I have seen some, frankly, rather overblown reports that this will somehow put workers or the wider public at risk. This is absolutely not the case. Employers will still have to comply with broader health and safety rules, and employment businesses will still need to be satisfied that the workers they supply are suitably qualified and trained.
Alongside this change, we are increasing the levels of damages that a court can award in the case of unlawful strike action. It has long been the case that employers can bring a claim for damages against a trade union that has organised unlawful strike action. The upper limits to the damages that can be awarded are set out in the Trade Union and Labour Relations (Consolidation) Act 1992 and are based on the size of the union that organised the unlawful action, but this damages regime has not been reviewed since 1982, so these limits are significantly out of date. As a result, the deterrent effect that Parliament intended has now been significantly reduced.
The Secretary of State is using powers granted to him in Section 22 of the Trade Union and Labour Relations (Consolidation) Act 1992 to increase the existing caps in line with inflation. In practical terms, this means that the maximum award of damages that could be made against the smallest unions will increase from £10,000 to £40,000, and for the largest unions it will increase from £250,000 to £1 million. This is a proportionate change because we are simply increasing these amounts to the levels that they would have been at had they been regularly updated since 1982. We are increasing the limits in line with the retail prices index, which is of course a well-understood measure of inflation.
By increasing the limits on damages in line with inflation, we are sending a clear message to trade unions that they must comply with the law when taking industrial action. Strikes should be called only as a last resort and as the result of a clear, positive and democratic decision of union members. The key point is that unions that continue to comply with trade union law will be completely unaffected by this change.
I am grateful to the members of the Secondary Legislation Scrutiny Committee for the time and care that they have taken in reviewing these regulations. I note their comments about the impact assessment for the changes to Regulation 7. This has now been published in line with our commitments to Parliament. As the committee noted, because this is a permissive change there is some legitimate uncertainty about the extent to which employment businesses will want to take advantage of their newly found freedoms. However, as the impact assessment shows, this change needs to lead to only a small reduction in the number of working days lost for it to make an extremely positive difference to the economy and society.
I have also noted the committee’s concerns in relation to Wales, specifically our commitment to repeal the Trade Union (Wales) Act 2017. In response, I simply say that there is nothing new about this commitment. The Government’s position on this issue has been consistent since the relevant Act was passed in 2017. Although we will of course engage further with the Welsh Government on this issue, it is very clear that labour markets and industrial relations are reserved matters.
The changes we are making will ensure that our trade union and agency laws remain fit for purpose. We are giving businesses the freedom to manage their workforce and we are empowering workers by giving them more choices about the kinds of assignments they can accept. We will continue to protect an individual’s right to strike, where proper procedures are followed, while ensuring that trade unions are deterred from taking unlawful industrial action. I therefore beg to move that both instruments are considered by this House.
Amendment to the Motion
Lord Collins of Highbury
At the end insert “but that this House regrets that the Regulations have been introduced without required or sufficient consultation, are opposed by employer and employee organisations, will do little to address the trained workforce shortfalls, could put workers’ safety at risk, will harm industrial relations, and may breach international law; further regrets that the associated Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 is unnecessary, as there are few if any occasions on which damages have been claimed, and an increase on the cap by 400 per cent is a threat that may inhibit the legitimate exercise of the right to strike; and concludes that the two instruments are simply a political exercise to deflect from the failure of Her Majesty’s Government to engage meaningfully with the organisations affected to resolve the disputes”.
Lord Collins of Highbury (Lab)
My Lords, I thank the Minister for introducing this debate, but what I heard was a lot of gesture politics and nothing about how we improve industrial relations in this country. In moving this amendment, I will focus on the failure to consult, the lack of an impact assessment when the statutory instrument was laid, and whether the instrument will meet the Government’s policy objectives.
The Employment Agencies Act 1973 requires consultation before changes are made. Rather than consult on the new regulations, the Government are relying on a consultation conducted in 2015, when Ministers previously considered similar changes. I do not see how it can be justified for a seven-year old consultation to apply to legislation being laid in 2022. Things have changed considerably in those seven years, both industrially and politically. Even the department itself acknowledged that
“circumstances have altered in some ways”.
However, it did not think that these were
“particularly relevant to the changes”
proposed. Tell that to the employees of P&O Ferries, where agency workers were used to undermine a collective agreement and replace unionised jobs. P&O’s actions were met with condemnation from all political parties—including the Minister’s—unions and employer organisations alike.
Turning to the 2015 consultation, let us not forget that 70% of the respondents were of the view that the changes would impact negatively on employees, yet the Government still believe that they have got the balance right between the interests of individuals—by protecting their right to engage in industrial action—and the interests of the general public.
Despite what the noble Lord says, I think it has the completely opposite effect. They are not defending individuals’ rights. Rather than focus on supporting negotiations to resolve disputes, we have a Government determined to undermine workers and damage good industrial relations. The use of agency workers during a strike would increase tensions between workers and their employers. This is bound to make disputes more difficult to resolve amicably.
Let us not forget: strikes are a last resort, as the noble Lord says, and most negotiations resolve in an agreement. Even where a strike takes place, the resolution requires agreement and this Government are doing nothing to support negotiations and reach settlements and agreements. It will make it far harder for working people to organise collectively to defend their jobs, their livelihoods and the quality of their working lives. This would be a shameful outcome for a Government which only a few years ago promised to protect and enhance workers’ rights.
The Explanatory Memorandum to the draft regulations stated:
“The Impact Assessment will be published in good time before any parliamentary debates”.
That did not happen. The explanation for the delay, given to the SLSC by the department, was that an impact assessment had been produced but needed “final quality assurance checks”. As the SLSC reminded us, every time an instrument is laid without the supporting impact assessment, it undermines the ability of Parliament to scrutinise legislation effectively.
Last week, the Government belatedly published an impact assessment. This featured, as the noble Lord said, vastly reduced costs and benefits from 2015, suggesting that any net benefit for businesses is expected to be below £5 million per year. The impact assessment published in 2015 was declared not fit for purpose by the Regulatory Policy Committee because it did not provide sufficient evidence of the likely impact of the proposals.
Of course, the SLSC rightly drew attention to the Secretary of State’s statement that it is not possible to robustly estimate the impact of the policy due to the lack of evidence. That is where we are: no evidence. This is purely a political gimmick without any consultation with those most affected, including employment agencies and workers. How can we believe the assumptions in this latest assessment?
The lack of robust evidence and the expected limited net benefit must raise questions as to the practical effectiveness and the benefit of the proposed repeal of Regulation 7. I repeat that this change is opposed by employment agency businesses, trade unions and employee organisations alike.
In his letter to noble Lords, the Minister stated that:
“We believe the changes we are making will help mitigate the impact of future strikes, such as those seen on our railways this week, by allowing—
—and these are his words—
“trained, temporary workers to carry out crucial roles to keep trains moving.”
What is clear is that there is not a large pool of sufficiently trained and qualified agency workers able to replace most roles on the railway and in most other sectors. They are simply not there, so what is the purpose of this change?
Neil Carberry, chief executive of the Recruitment and Employment Confederation, says:
“The government’s proposal will not work. Agency staff have a choice of roles and are highly unlikely to choose to cross picket lines.”
In addition to the damage to constructive employment relations, agency workers could also face a terrible choice between crossing a picket line or turning down an assignment and risk not being offered future employment.
Lord Balfe (Con)
My Lords, there is not a lot of competition on these Benches to speak, so I hope I shall be forgiven. We normally begin by making a declaration of interest. Mine is quite simple: I left school at 16 and I joined a trade union straight away. I have been in a TUC trade union ever since, and I am currently the president of BALPA, the pilots’ union. I have been the president of the British Dietetic Association. From being a branch official at the age of 16, I have in some way or other been an active trade unionist for longer than I have been an active politician.
I say that because I just cannot see the purpose of the regulations. They deal with an Act passed by a Conservative Government, the Employment Agencies Act 1973. They do not appear to have had the requisite consultation. I would not be surprised if, at judicial review, they did not manage to stand up. There could be a judicial review that the Government had not fulfilled what the regulations were meant to do. I have had briefings from UNISON, the TUC and the British Medical Association. When you get those three in one pot, you really have trouble, I will tell you—with the BMA, particularly.
My first question for the Minister is this. What has changed since 2015, other than that we have a different Prime Minister and that Prime Minister’s trade union envoy no longer seems to have much resonance around the Conservative Party? In 2015, this was dropped; it was not proceeded with. We have the impact assessment and the report of the scrutiny committee. I should like to read just a little into the record. The fact that the impact assessment of the department was
“unable to ‘robustly estimate the size’ of the policy’s impact because of a lack of evidence raises questions as to the effectiveness of the change proposed by the draft Regulations … The lack of robust evidence and the expected limited net benefit raise questions as to the practical effectiveness and benefit of the proposed”
repeal of Regulation 7. That is fairly clear; there is not much room for disagreement there.
I also ask a question about the Liability of Trade Unions in Proceedings in Tort (Increase of Limits in Damages) Order. When was the last case? It is fine to update it, but when I asked someone, they could not find anything in the past 10 years in the way of a case. My experience of attending TU governing bodies is that they spend a hell of a long time looking at complying with the law. If you were to be privileged to sit in on a BALPA meeting, you would find that before even the mildest industrial action is undertaken there is absolutely rigorous scrutiny of whether it fully complies with the law—there is no attempt to get round it. What are HMG trying to achieve, other than to annoy people? I do not think this legislation is draconian; I think it is pretty useless.
Where will you find signalmen to be recruited by, I do not know, Reed, to send them down to Cambridge station to work the signals? I do not think they are there. You will find plenty of doctors. Indeed, one of Addenbrooke’s biggest problems is that the doctors prefer to work through an agency because they get more money. Will you have the doctors all working for the agency? Of course not. The fact is that there is no great skill pool on the railways. If you go to my local station in Cambridge, you will see that there are signs in all the shop windows for baristas and people to work in the shops. There is no unemployment there to be mopped up by such people, even if they wanted to do it.
The average working person gets no pleasure out of crossing picket lines; it is not a natural thing to do. So I ask the Minister: does he really need this? What does he achieve? One-third of trade unionists vote for the Conservative Party. Why go around sticking unnecessary pins into them? We do not have a crisis. We do not have a major problem. We have a minor problem, and even that minor problem needs addressing in negotiation between the railway unions and the people who run the railways. There is a lot that could be improved there, but it is not going to be improved—sorry, Minister—by little bits of legislation such as this. This, I am afraid, is nearer to a dead letter than a live proposition.
Lord Woodley (Lab)
My Lords, the critique by the noble Lord, Lord Collins, was absolutely stunning. Last month, the Minister told this House that it was “outdated” to talk about workers and bosses because apparently:
“We are all working together for the good of the country.”—[Official Report, 29/6/22; col. 645.]
I say to the Minister: go and tell that to the 3.6 million kids in poverty. Go tell it to them.
The Minister even claimed that the trade unions were a “minority profession”, which “do not represent anybody”. So I ask him again whether this is now the Government’s official position: that 6 million trade unionists do not count. Is this the justification for hobbling trade unions which are fighting for better pay to offset rampant inflation? We are still waiting for the mythical employment Bill—much talked about, but never seen. I remember the Government’s crocodile tears at P&O’s use of agency staff to undermine trade union rights and drive down pay and conditions, yet here they are now, proposing to enshrine such despicable practices into law. I asked the Minister who has been consulted over these changes, and he replied that there had been no consultation—as the noble Lord, Lord Collins, said—since 2015.
My noble friend is right. The economy has changed significantly over the past seven years: Brexit, Covid and now the cost of living crisis. It is “wholly inappropriate” to rely on a seven year-old consultation, especially given
“the wider economic and political context”.
Those are not my words but those of the Recruitment and Employment Confederation, the REC, which represents agency firms—the employers—and of the TUC, representing trade unions. The REC even warned that these proposals leave employment agencies and their workers in an unfair moral position because of the pressure to break strikes. Let us stop pretending that this Government are on the side of working people, especially when they are slipping through major changes so underhandedly, with only a couple of hours of parliamentary debate.
Surely such a significant shift in workplace power deserves “proper parliamentary scrutiny”? Again, that is not just my opinion, but that of the REC and the TUC, which have both written to our Secondary Legislation Scrutiny Committee, as the Minister mentioned, warning against these inflammatory changes being rushed through both Houses. The committee also expressed its concerns with the way the Government have introduced these statutory instruments, especially with their impact assessment—again, as the noble Lord, Lord Collins, said—which was delivered late and recognised as being of very poor quality, with a “lack of robust evidence”. Surely the Minister can see that these proposals deserve primary legislation, not sneaky SIs.
I ask the Minister: why this all-out war on trade unions, which risks breaching not just international conventions but even domestic law? Will he accept responsibility for poisoning industrial relations across this country as a result? I draw noble Lords’ attention to a contribution from the debate in the other place. The Conservative MP—yes, that is right, the Conservative MP—Alec Shelbrooke said:
“This agency worker measure was not in our manifesto, and it seems to have been done very quickly in reaction to what is going on in the public sector.”
After stating the obvious, that the private sector has
“quite a few unscrupulous employers”—
there is one for the record books—he hit the nail on the head:
“If people lose their ability to have an effect when they withdraw their labour, I am afraid they will effectively lose the ability to withdraw their labour.”—[Official Report, Commons, 11/7/22; col. 93.]
Lord Monks (Lab)
My Lords, this SI is the latest in a long line of steps, taken by successive Conservative Governments, to wrap trade unions in ever-more complex and restrictive dollops of red tape. It is almost a rite of passage for each Conservative Administration to slap fresh restrictions on unions. This SI is the latest in a long line. As my noble friend Lord Woodley has said, the Government were supposed to be introducing an employment Bill with new rights for workers—a positive step forward—but where is it? We keep asking, and again I pose that question to the Minister.
The Government were going to tackle the abusive practices of P&O Ferries in sacking staff and replacing them with agency workers, but where has that gone? Instead, they are now encouraging, through this SI, employers in a dispute to replace workers with agency staff. That looks to me like a U-turn, and one that is unacceptable to many of us.
A wiser Government would learn from their own successful experience with the furlough scheme, where they worked closely with unions and the TUC to devise a scheme that did much to see our country through the pandemic in reasonable shape. That degree of wisdom is sadly missing in this exercise we are talking about tonight.
A wiser Government would recognise that the current inflation is not due to wages but to Covid, the war in Ukraine and Brexit-related matters. In fact, our country’s experience is of stagnant wages and soaring profits, with real wages having been pretty flat since 2000, with the exception of executive pay, in the largest companies in particular, which grew during the pandemic alone by 29%. Is it any wonder that there could be an increase in labour unrest in the forthcoming period? Workers have got plenty to be restless about.
A wiser Government would seek to address this situation, not by playing to their own political gallery with this kind of gesture, but instead by seeking to work with unions, employers and all those concerned that might have some way of helping this country through a very difficult economic period ahead. Will the Minister, even at this stage, reflect on the request from many of us here tonight to put this SI in the recycling bin and tackle the real problems?
Lord Hendy (Lab)
My Lords, I support the amendment moved by my noble friend Lord Collins. Wages are rising at 4% per annum and prices are increasing at 11% per annum. It is a sad thing that the Government’s response is to take yet further measures to stop workers exercising the only leverage they have to maintain or even improve their standard of living. The Minister frankly admitted this evening that the purpose of the statutory instrument in relation to damages was to deter unions from striking, and that would be achieved by increasing the cap on damages by 400%. The point that I wish to raise with the Minister is that this further regulation of trade union freedom may well put the United Kingdom in breach of its international legal obligations, and it is to that that I will restrict my remarks.
My noble friend Lord Collins mentioned Article 3 of Convention 87 of the ILO, which is the most fundamental of all the ILO conventions, the international standards of labour. Article 3 guarantees that unions and employers’ associations can organise their activities
“free from any interference which would restrict this right or impede the lawful exercise thereof.”
Among the activities that unions must be free to organise is, of course, industrial action. Consequently, the relevant supervisory committee of the ILO—the quasi-judicial Committee of Experts on the Application of Conventions and Recommendations—has said:
“Provisions allowing employers to dismiss strikers or replace them temporarily or for an indeterminate period are a serious impediment to the exercise of the right to strike.”
My noble friend Lord Collins mentioned a decision of the Committee on Freedom of Association to similar effect. The authoritative interpretation of conventions by these committees is recognised not only by the European Court of Human Rights and other courts, such as the Supreme Court of Canada, but by our domestic courts. Those committees have held for some time that, among other non-conformities, British law currently does not comply with the requirements of Convention 87, Article 3 because workers taking industrial action are inadequately protected.
I hope that the Minister is not going to say that he disagrees with the rulings of those two ILO committees. They are the supervisory bodies of Convention 87, and it would sound like the first-year law student who writes an essay saying that he disagrees with a judgment of the Supreme Court. I am sure the Minister will not be saying anything like that.
I wish to make an additional point before I sit down. Breach of an ILO convention is bad enough, particularly one ratified by and binding on the United Kingdom, of which the United Kingdom was the very first signatory back in 1948. Secondly, the EU-UK Trade and Cooperation Agreement of 2021 involved the Government undertaking post Brexit to comply with various international treaties by which they were already bound. The effect is that non-compliance with these treaties is not only a breach of them but is unlawful on the additional ground that it is a breach of the Trade and Cooperation Agreement. Paragraph 2 of Article 399 states:
“each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions”.
Paragraph 5 states:
“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted.”
The UK has the obligation not only to respect and promote Convention 87, but also to effectively implement it. Those obligations surely prevent the UK adding an additional obstacle to the effective exercise of the right to strike by allowing agency strike breakers.
Lord Paddick (LD)
My Lords, we on these Benches are very concerned about the impact of strikes such as those planned to close down the rail network, preventing hard-working people, including emergency workers already suffering under the cost-of-living crisis, getting to work, but we do not believe these regulations are the answer.
This first statutory instrument appears to be a sham. It is another pretence at doing something instead of what the Government should actually be doing, which is enabling, empowering and facilitating employers to negotiate effectively with their employees and the trade unions that represent them to prevent the need for strikes in the first place. If the Government were taking effective action to mitigate the devastating further increases in the cost of gas and electricity this winter and the associated increases in the costs of essentials such as food and clothing, there would be less of a demand for large wage increases in the first place.
The report of the Secondary Legislation Scrutiny Committee not only casts doubt on the practical effectiveness of the change brought about by this SI, but also points out the weakness of the Government’s own impact assessment, as the noble Lord, Lord Balfe, has said.
Using agency staff to backfill those on strike is likely to prolong disputes—that is, even if employers can get agency workers. As the Trades Union Congress and the Recruitment and Employment Confederation have said, with 1.3 million vacancies in the UK, the number of agency staff available is declining rapidly, the opportunities for them to be employed are increasing and they will choose employment that does not involve having to cross picket lines.
According to UNISON, research shows that, with the best will in the world, agency staff less familiar with the workplace and working practices are more likely to make mistakes, have or cause accidents and cause harm to themselves and others, mainly because of a lack of training, lack of access to protective equipment and lack of supervision. If the Government think there are sufficient agency train drivers, signallers and trained station staff, who, for example, have to assist disabled passengers on and off trains, they are deluding themselves.
Even the British Medical Association is opposed to these regulations. The Government are required to consult before making changes, and yet, as other noble Lords have said, the last consultation was seven years ago, when, as a result, similar proposals were abandoned. Surely, a seven-year-old consultation is not sufficient, as the BMA suggests, and as the noble Lord, Lord Collins of Highbury, has said.
Even in that consultation seven years ago, the majority of businesses supplying agency staff said that the changes would have a negative effect. Some 49% of the respondents said it would have a negative impact on agency workers. On the impact on employers, 40% said it would have a negative impact. Only 24% said it would have a positive impact, as it would worsen the relationship between employers and employees if they backfilled with agency workers.
Despite all of that—despite the majority on all sides saying that this is a bad idea—the Explanatory Memorandum states:
“The Government has carefully considered all these points and remains of the view that removing regulation 7 is the right course of action.”
If that is not the definition of pig-headedness, I do not know what is.
As the noble Lord, Lord Hendy, has set out in detail, doubt has also been cast on whether the change is compatible with international law, for which this Government have scant regard—be it genuine asylum seekers seeking sanctuary in the UK, or their proposed unilateral action on the Northern Ireland protocol. This Government are rapidly moving the UK towards being seen by others as a rogue state.
This statutory instrument is a poor and ineffective substitute for what the Government should be doing: being more effective in tackling the cost-of-living crisis and getting employees and employers around the table to prevent strike action in the first place.
With regard to the increase in the limit for damages for illegal strikes, rarely if ever is industrial action brought by trade unions if it is illegal. Other than intimidating trade unionists, we question the timing of such changes.
We support the amendment in the name of the noble Lord, Lord Collins of Highbury.
Lord Callanan (Con)
My Lords, I thank all noble Lords for their contributions to this debate—which, I have to say, was a bit shorter than I expected. I will start with the amendment tabled by the noble Lord, Lord Collins. I thank him for raising his concerns.
I repeat the point I made at the outset. This is very much a question of getting the right balance between, on the one hand, the right of individuals to strike, and on the other hand the rights of individuals to go about their daily lives, whether it be children taking an exam, people going to their hospital appointments or other workers wishing to go to work to do their jobs. These reforms will ensure that our laws strike the correct balance. In doing so, we are protecting the public from unwarranted disruption while, as I said, maintaining workers’ ability to go on strike, which, I repeat, will remain unaffected by these changes.
The noble Lords, Lord Collins, Lord Woodley and Lord Paddick, all referred to the consultation not having been carried out on the agency regulations since 2015. In response to those concerns, I would say that the consultation that we carried out in 2015 was extremely thorough. Given that, I struggle to see what a further consultation will bring up. Are there any new issues or objections that we are not already aware of? I think the response to that is no. As we said in response to the Secondary Legislation Scrutiny Committee, some things have changed but the fundamental issues remain the same. I think that in their hearts, Opposition Peers know that that is the case. This is about finding that right balance between the rights of individuals to strike and the right of the public to go about their lawful daily business.
The noble Lord, Lord Collins, also referred to the impact assessment. As I said in my opening remarks, it has been published, as we committed to do in the Explanatory Memorandum. As the impact assessment makes clear, this is a permissive change: employers will hire agency workers only if it makes sense for them to do so. There is no compulsion on them; it is permissive and their choice. Our assessment also shows that this change needs to lead only to a small reduction in the number of working days lost for it to have a positive effect on the economy.
The noble Lord, Lord Collins, went on to question why it was necessary to raise the damages cap for unlawful strike action when damages are so rarely claimed—in which case, Opposition Peers’ concerns are ill founded. We are simply restoring the deterrent effect that Parliament intended when the original amounts were set.
The noble Lord also suggested that the increase in the cap would inhibit the ability of unions to take legitimate strike action. He himself made the point that there have been no recent cases on this matter. I also respectfully disagree with the point he makes. As I said, this change applies only to action which a court determines to be unlawful. If, as he suggests, trade unions go to the maximum possible trouble to make sure that their action is lawful, they will have nothing to be concerned about. I am sure that no noble Lord would suggest that unlawful strike action is acceptable in this day and age.
Let me address some of the other points made in the debate. My noble friend Lord Balfe asked whether agency workers would be willing to cross picket lines given current labour shortages. Again, this is a permissive change; nobody is going to be forced to take an assignment that they do not want to take. The point is that the current regulatory framework actually prevents them having that choice, and that cannot be right. The noble Lord, Lord Woodley, raised concerns about the damage that this will do to the reputation of the recruitment sector, and the concerns of the employment businesses and others that have registered about this change. Nobody is being forced; nobody is being compelled; no employment businesses will have to supply workers to businesses facing industrial action. Again, it will be their choice to take part or not, as the case may be; no one is going to force them. We just do not see the point in having the blanket ban that we currently have.
The noble Lord, Lord Monks, drew some I think incorrect parallels with the P&O Ferries case earlier this year. This case is completely different. In the P&O Ferries case, the company has admitted deliberately choosing to ignore statutory consultation requirements when firing staff with no notice. All we are doing in the case of these changes is giving employers more flexibility to help them minimise the disruption that industrial action causes. Where proper procedures are followed, staff on strike should not lose their jobs; they will continue to have exactly the same legal protections that they already have.
The noble Lord, Lord Hendy, questioned whether these changes comply with our international legal obligations, including our commitments under trade and co-operation agreement. We have carefully considered all of these issues and we are confident that the changes are compliant with all of our international obligations—as, indeed, I told the noble Lord, Lord Collins, during Question Time last week. The ability of businesses to use agency staff does not affect individuals’ right to strike, and the protections those striking workers have in law remain unaffected. The Government are adjusting the balance between the right of workers to strike, and the rights of the wider public to go about their lawful business, and this falls well within our margin of appreciation when implementing international conventions.
The noble Lord, Lord Paddick, raised concerns about health and safety. Again, these concerns are not well founded, simply because this change does not change the broader health and safety rules that businesses still have to comply with. Similarly, the obligation on employment businesses to supply suitably qualified workers also remains in place. The aim of our trade union laws is to support an effective and collaborative approach to resolving industrial disputes, one that balances the interests of trade unions and their members with the interests of employers and the wider public. The changes we are making will, in my view, support that balance, and I therefore commend these draft regulations to the House.
Lord Collins of Highbury (Lab)
My Lords, simply asserting something does not make it true, and that is exactly what the Minister has done tonight. In fact, the reason why this debate was perhaps shorter than he expected is that not a single person supported his line of argument; that is the issue here. He talks about strikes as if there is somehow a desire on the part of workers to go on strike; there is no such desire. It is when they face intransigence; when they face Governments who are determined that negotiations cannot take place—that is what we have heard. I have not heard a single word tonight supporting the Minister’s assertion that this Government are in favour of a collaborative approach. When we were collaborative, as my noble friend said, during the pandemic, the TUC worked hand in hand with this Government to make sure that the economy did not suffer long-term distress—and what is the payback? As the noble Lord, Lord Balfe, says, it is simply to have a pop, to have a go, but with no evidence provided that it will achieve anything that the Minister suggests. It will entrench opinions and it will delay settlements.
The employers, the temporary agency firms—and there are many of them—provide a very necessary service. They provide flexibility in very difficult, tight labour markets, as we have heard, and this action will undermine and discredit them and make it more difficult for them to do their job. It has been a very interesting debate. I hope we will be able to read in Hansard what this Government really are about, because they assert something and do something else. I beg leave to move the amendment and divide the House.