Strikes (Minimum Service Levels) Bill

(Limited Text - Ministerial Extracts only)

2nd reading
Tuesday 21st February 2023 Lords Chamber

[Lord Callanan (Con)]

My Lords, I thank all noble Lords for their contributions on what is, in the Government’s view, a very important Bill. There is clearly a wealth of expertise on this topic across the House, not least among the large number of ex-trade union general secretaries we seem to have on the Opposition Benches, who have all contributed well. Of course, I sense the strong feeling on this issue. As is usual in this House, we have had a thorough and engaging debate; most of the speeches have been thoughtful and I certainly listened with interest to what Members had to say.

I start, as many others did, by congratulating my noble friend Lady O’Neill on her excellent maiden speech. Unlike some others, she kept it relatively uncontroversial. It is a pleasure to see her in place today, and I am glad she has chosen this debate to make the first of what I am sure will be many well-informed contributions. I first met my noble friend during a visit to Cory’s Riverside Heat Network a few years ago and I am delighted, as an energy Minister, that we are welcoming someone with such a passion for energy. She has done some tremendous work as Bexley Council leader; she pioneered its decarbonisation vision and made Bexley a flagship Conservative borough. My noble friend and I have many things in common. We both have Irish parents: she has two and I have one. We both started our careers in local government. Hers was considerably more successful than mine: she became a council leader, and I was one Conservative out of 66 councillors in Gateshead. So, she did much better than I did in that respect. Congratulations to her on an excellent maiden speech.

I will do my best to respond to as many as possible of the contributions made and issues raised, but as always, time is limited and I apologise in advance if I do not have enough time to address everybody’s contribution. Let me start with concerns about the design of the Bill, raised by the noble Baronesses, Lady O’Grady, Lady Donaghy, Lady Whitaker, Lady Jones and Lady Kennedy, the noble and learned Lord, Lord Judge, the noble Lords, Lord Strasburger, Lord Monks, Lord Prentis, Lord Whitty, Lord Fox and Lord Collins, the noble Viscount, Lord Stansgate, the right reverend Prelate the Bishop of St Edmundsbury and Ipswich, my noble friend Lord Balfe and probably some others I have missed. I maintain that it is right that the detail of specific services and minimum service levels be set out in secondary legislation—that is not something for primary legislation. As a number of Members have observed, the Government published consultations on establishing MSLs in ambulance services and fire and rescue services on 9 February. Yesterday, we published a consultation on minimum service levels for rail.

It is entirely proper and legitimate for the Government to enable employers, employees, trade unions and their members and, most of all, of course, the public, who are affected by all of this, to contribute to the consultations. We had a lot of contributions from so-called vested interests, but we did not have much on behalf of the great British public. So, they will all be able to contribute and the Government will seek approval from both Houses of Parliament before any regulations come into force. I can also confirm to the noble Baroness, Lady Donaghy, that we would expect to engage ACAS as part of the consultation process.

When it comes to the sectors included in the Bill—mentioned by the noble Baronesses, Lady O’Grady, Lady O’Neill and Lady Randerson, as well as my noble friends Lady Browning, Lord Dobbs and Lord Greenhalgh—as I said in my introduction, the key sectors covered are broadly the same set that were listed as important public services in the Trade Union Act 2016 and which have long been recognised as important because of the far-reaching consequences for members of the public who are not involved in any way in that dispute.

As many other Members have done, I pay tribute to what I thought was a very moving speech by my noble friend Lady Browning. It was a heartfelt contribution, explaining personally how people have to live with the increased anxiety of not being able to get an ambulance during a strike. They have had to adjust their lives accordingly. I totally agreed with her contribution. It demonstrates the disproportionate impact that strikes can have on the public and why, therefore, this legislation is needed, especially for health services. As she said, minimum service levels aim to relieve that mindset. It is therefore only right that these sectors are included within the scope of the legislation.

Many people have been left worrying about whether an ambulance will be there when they need it. The rail strikes have left people unable to access their work, their healthcare and, in many cases, their education. Some people have probably been unable to access their church services, led by the right reverend Prelate, although we would need to consult further on whether that would be regarded as an essential service.

With regard to the specific transport services, as raised by my noble friend Lord Greenhalgh and the noble Baroness, Lady Randerson, the Government have identified passenger rail as a priority to be consulted for implementation first. My noble friend Lord Leicester explained why, quoting the relevant statistics on the impact of rail strikes from the Centre for Economics and Business Research. The direct cost of all strikes and the indirect cost of worker absences due to rail strikes so far is at least £1.7 billion over the eight-month period to January 2023. The Opposition are very keen to talk about nurses and healthcare; I note that they are slightly less keen to talk about rail strikes. Cebr also says that

“unresolved industrial disputes are having an adverse impact on growth”

at a time when many forecasters expect the economy to be in recession.

Before minimum service levels are introduced in any other transport services, we would, of course, consult to ensure that all evidence and stakeholder views are fully considered. This would include employers and industry experts. Obviously, we recognise that each transport service is unique and consultation will be key to ensure that we get this right. As regards other services, I am happy to confirm to my noble friend Lord Balfe that the Government currently have no plans to implement minimum service levels on coffee or sweet shops.

I reassure the number of noble Lords who expressed concern about the powers in the Bill to amend primary legislation, including the noble and learned Lord, Lord Judge, the noble Baroness, Lady Chakrabarti, the noble Lords, Lord Strasburger, Lord Monks and Lord Whitty, and the noble Viscount, Lord Stansgate. Before I turn to Clause 3, I want to be clear that proposed new Sections 234B and 234F contain no such Henry VIII powers. There is no intention or ability to use Henry VIII powers to set the minimum service levels. These powers are strictly limited to Clause 3, and the powers in this clause can be exercised only to make amendments that are necessary to give effect to the Bill; they are therefore truly consequential. It is a standard clause included in much legislation, with standard wording. Drafting includes the references to Acts passed later in the same Session for the simple reason that those Acts might have been drafted before this Bill becomes an Act, and therefore may not take it into account. That is the only reason.

Many noble Lords spoke in a greatly entertaining way about the international comparisons that the Government are using when referring to this legislation. The noble Baroness, Lady O’Grady, referred to this, as did the noble Lords, Lord Allan and Lord Strasburger. As I said in my introduction, most major European countries have some version of minimum service levels for their key public services. In fact, many countries go further. Some, such as the USA, Australia and Canada, go much further and ban strikes completely in some blue-light services. As noble Lords will know, the approach to setting minimum services levels differs from country to country, taking into account their different circumstances; but can we please not have some of the wild exaggerations that some noble Lords made about the consequences of this legislation. This is common across many other perfectly well-functioning liberal democracies.

Many Opposition Peers also accused the Government of focusing on legislating and not on resolving the disputes. We have always said that we wanted to reach an agreement. Ministers across government have been meeting with the trade unions to attempt to resolve these disputes where it is possible to do so and, crucially, where it is affordable to the taxpayer. In some cases, I am pleased to say that settlements are being reached. As the noble Lord, Lord Collins, observed, just this afternoon, while we were in this Chamber, the Government have published a joint statement with the Royal College of Nursing announcing their agreement to enter a process of intensive talks. Both sides are committed to a fair and reasonable settlement.

There is no question that industrial action can have a disproportionate impact on everyone: on members of the public who rely on essential services to get to work or to care for their families; on the NHS trying to get the backlog down; on schools trying to recover the lost learning after the pandemic; and on local businesses whose sales and productivity suffer. We need to have confidence that, when workers strike, people’s lives and livelihoods are not put at risk. It is therefore necessary, in our view, to have the power to act if required.

A number of noble Lords were entirely reasonable to raise the devolved Administrations and their involvement. The noble Baronesses, Lady O’Grady, Lady Chakrabarti and Lady Randerson, were right to mention this important issue. However, the plain fact is that industrial relations is a reserved matter. The Government have a duty to protect the lives and livelihood of their citizens across Great Britain. The disproportionate impacts that strikes can have on the public are no less severe on people in Scotland or Wales, and they have every right to expect the Government to act to ensure that they can continue to access vital public services during strikes. We obviously recognise that, in some cases, this will affect employers operating services which are devolved. The Government have published consultations on the application of MSLs for ambulance services, fire and rescue services, and rail services. As part of the development of MSLs in those areas, and the consultations that are legally required to inform these, we will continue to engage with the devolved Administrations on the geographical scope of the regulations.

A number of noble Lords suggested that this could be a vehicle for firing workers—a point raised by the noble and learned Lord, Lord Judge, the noble Baronesses, Lady Chakrabarti and Lady Whitaker, the noble Lords, Lord Strasburger, Lord Monks and Lord Hain, and the right reverend Prelate the Bishop of St Edmundsbury and Ipswich. Let me once again assure them that this is misleading as to what this legislation will actually do. The Bill equips employers to manage instances where a worker takes strike action despite being named on a work notice for that particular day of strike action by removing the employee’s automatic protection against unfair dismissal for industrial action. It is at the discretion of the particular employer, not the Government, as to what, if any, disciplinary action is taken in these circumstances. We hope that employers are fair and reasonable, and take this sort of action only where it is necessary. It is no different from employers managing instances of non-compliance for any other unauthorised absence.

The noble Baroness, Lady O’Grady, the noble Lord, Lord Allan, and the noble Viscount, Lord Stansgate, all spoke of the use of “reasonable steps” in the Bill. There are a range of steps that trade unions could take, and what is considered reasonable will depend on each specific situation. First and foremost, a trade union should not call a union member identified in a work notice as required to work on a particular day out on strike that day. The trade union could also encourage those individual members to comply with the work notice, and make it clear in their general communication with members that where members are named in a work notice, and therefore required to work on a particular day, they should attend work on that strike day.

A number of noble Lords spoke about our international obligations and considered arguments on this point were made by the noble Baronesses, Lady Blower and Lady O’Grady, and the noble Lord, Lord Allan. As we have said, the Government are confident that the Bill is compatible with our international obligations, including the European Convention on Human Rights. As all Ministers do, I had to sign a statement of compatibility before I introduced the Bill in this House and, as all Ministers do, I did that on legal advice. As the minimum service levels framework is developed, the Government will continue to uphold their international obligations, including those under the TCA.

I was pleased to hear my noble friend Lady Noakes speak passionately in her support of the Bill, and, in particular, about balancing the rights of the public with the rights of the ability of workers to strike. That is fundamentally what the Bill seeks to achieve. Other noble Lords spoke similarly on international labour obligations, including the noble Baronesses, Lady O’Grady and Lady Kennedy, and the noble Lord, Lord Balfe. Some have said that it is wrong for the Government to set minimum service levels via regulation, rather than via negotiation or independent arbitration. That point was also raised by the noble Lords, Lord Whitty and Lord Liddle.

We have consistently said that we hope we do not have to use the powers in the Bill and that, where possible, if unions can agree on voluntary arrangements where they are necessary, that is obviously better than having to legislate. Where we have to bring forward regulations, these will be subject to consultation and scrutiny in both Houses of Parliament. We think that it is fair and reasonable to enable employers, employees, trade unions and their members, and the public as a whole, to participate in the process of setting minimum service levels, and then for them to be approved by both Houses of Parliament before they are applied. This would not necessarily be the case if the minimum service level was simply agreed between the employer and the union.

It was right that the noble Lords, Lord Monks and Lord Fox, and the noble Baroness, Lady Randerson, spoke passionately about the naming of individuals as part of the Bill. To be clear, the Bill enables employers to issue work notices to specify the workforce required to achieve the minimum service level for that strike period. Trade unions are required to take reasonable steps to ensure that members identified in the work notice comply with that notice. Therefore, the trade union needs to see the work notice and know which union members may be named to be able to take those reasonable steps. Individuals named on a work notice will be notified of this as regards themselves only; the work notice will not be a public document. In addition, there are no sanctions or consequences for individuals if the minimum service level is not then achieved.

The impact assessment for the legislation has now been published, as a number of noble Lords observed. Overall, we expect the legislation to be of net benefit to the economy. We have of course noted the RPC’s comments and will consider whether it is possible to revise the impact assessment to address them. Impact assessments will also be published for all subsequent regulations on minimum service levels. We believe that many of the concerns expressed by the RPC will be addressed when those are published.

A number of noble Lords, including the noble Baronesses, Lady O’Grady and Lady Donaghy, and the noble Lord, Lord Hain, expressed concerns that union members would be targeted individually and unfairly by employers in work notices. The Bill is clear that an employer must not have regard to whether a worker is a member of a union, or a particular union, when issuing a work notice. Nor does the Bill do anything to diminish other protections against discrimination, which, I hope, addresses the questions raised by the noble Lord, Lord Sahota.

The noble and learned Lord, Lord Judge, suggested that the Bill enables unilateral variation of employment contracts. It is true that legislation made under the Bill will affect the relationship between some employers and some workers, and that they will be required to comply with it where applicable, but in that respect it is no different from most employment legislation. The Bill does not provide employers with powers to unilaterally vary employment contracts; it merely allows the giving of a work notice which adjusts the circumstances in which workers may lawfully go on strike. I am afraid that I do not agree with the noble and learned Lord that any of that is akin to unilateral variation.

Some noble Lords, including the noble Baronesses, Lady Chakrabarti and Lady Jones, the noble Lord, Lord Prentis, and my noble friend Lady Noakes, raised the existing life and limb law. Disproportionate impacts on the lives and livelihoods of the public still occur during strikes, despite Section 240 of the 1992 Act being in place. The aims of MSLs are to balance the ability to strike with the rights of the public to access the vital services they depend on during those strikes. The purpose of Section 240 is to allow for criminal prosecutions for those who intentionally and maliciously endanger life or cause serious injury to a person by going on strike. In my view, these are two fundamentally different aims, and, as my noble friend Lady Noakes flagged up, the right to access key services clearly goes beyond life and limb.

I will also take on board and consider the point made by the noble Lord, Lord Fox, about the Home Office guidance in the Manchester Arena tragedy and follow that up with him.

Finally, a number of noble Lords rightly raised the issue of the pressure that the cost of living is putting on people and our public services. That is why we have committed to halving inflation and growing the economy, and why we have provided £26 billion to support individuals and businesses. We are investing billions more in schools, the NHS and social care, and all that of course supports those who work in those services. The Government respect the vital work that public sector workers do on the front line to protect the lives of others—a point we have made a number of times and will continue to make.

Once again, I thank all noble Lords who have spoken. I reiterate what I said in my opening remarks: the Government support workers’ ability to strike; it is an important part of industrial relations that is rightly protected by law. The Bill seeks to maintain a balance between the ability to strike on the one hand, and on the other the public’s right not to be subjected to disproportionate impacts as they try to go about their daily lives and access essential public services. My noble friend Lord Patten was right when he said that striking the balance between the ability to strike and the right of the public to be safe and protected is difficult, but we believe that our approach is a proportionate way to provide this important balance. I am happy to confirm to him that the Government have no intention of banning the ability to strike. As my noble friend Lord Dobbs so eloquently put it, the Bill is intended to keep the country working.

To encourage further engagement with the Bill, links to the consultations will be circulated to participating Peers after this debate. In the meantime, I of course look forward to discussing the Bill further with Members in Committee. With that, I beg to move.

Bill read a second time.

Moved by

[Lord Callanan]

That the bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the bill in the following order: Clause 1, Schedule, Clauses 2 to 6, Title.

Motion agreed.