Thursday 9th March 2023
(1 year, 9 months ago)
Lords ChamberStrikes (Minimum Service Levels) Act 2023 View all Strikes (Minimum Service Levels) Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 97-I Marshalled list for Committee - (7 Mar 2023)
Lord Allan of Hallam (LD)
My Lords, I rise to support Amendments 3 and 4 in the names of the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady. First, looking at Amendment 3, which seeks to exclude health services altogether, I think the key question remains: who wants this legislation? As the noble Lord, Lord Balfe, who is not in his place, asked in relation to Amendment 1: who is asking for this power that the Government are legislating to grant them? We have the Health Minister in the Minister’s place. I hope he can inform the Committee which bodies within the National Health Service have been knocking on his door, asking to be given the powers that are set out in this legislation.
The noble Baroness, Lady O’Grady, quoted to us from the note that has been sent out by NHS Providers, which represents all the trusts in England, and it could not be clearer that not only is the legislation unwanted but it sees it as actively counterproductive to its efforts to work with the staff that it employs in order to deliver the service both on a day-to-day basis and during industrial action. We seem to be in a situation where the employers are saying that they do not want this, and the employees certainly do not want it, yet the Government are determined to stick their oar in and make a difficult situation worse. This potentially has significant short-term and long-term disadvantages that will be to the detriment of the health service.
I am sure the Government will say that this is about delivering health services to people in the United Kingdom, and we would agree that it is about that. The question is: what framework means that we are most likely to get those health services delivered effectively? It is one in which employers and employees are working hand in hand to deliver health services to people. It is not one in which we create artificial tensions between employers and employees, and it is not one in which we pass legislation and seek to impose measures that will increase those tensions and make things worse.
As well as NHS Providers, I have been contacted by a consultant who works in the health service, who said to me:
“Instead of focusing on minimum service levels on striking days, the Government should be taking action to ensure the NHS is safely staffed 365 days a year.”
We will come to amendments later on where we will talk specifically about that, but that is the prize—a 365-day-a-year service. That depends, crucially, on staff morale, staff recruitment—we all know that we have huge gaps right across the health service—and staff retention, which means making them feel valued. It certainly does not mean press-ganging them into working at times when they have exercised their legitimate right to withhold their labour because of an industrial dispute.
The consultant goes on to say:
“Instead of threatening workers and unions with heavy-handed tactics that put workers’ right to strike at risk, this means ensuring that there is meaningful engagement on pay and a commitment to enshrining and funding safe staffing. This would help stem the tide of doctors leaving the NHS every year for better jobs at home and abroad, in the best interests of the NHS and patient care.”
I asked the Minister this question at Second Reading; I will ask it again: is there anything in this legislation that the Minister can say, hand on heart, will help him and his department recruit more staff to the NHS and stem that flow away from the service?
On the specific consultations that the Government have put out, we now have one on the ambulance service; again, I have been talking to people who work in that service. First, I have to say that the consultation is one of those classics: if you ask people, “Do you want more or less service?”, who votes for less service? When the Government ask, “Do you want category 1 and category 2 or just category 1?”, I think we can reasonably predict the answer. But the consultation does not ask, “Do you want the Government to come to a fair settlement with ambulance workers so that you can have categories 1 and 2 all year round, delivered to a level of performance that would be a significant improvement on today’s level?” I think the Government would freely admit that they are failing on both categories today; again, we have to ask whether anything in this legislation will improve the service delivered by the ambulance service. There is nothing there.
The ambulance service points out that, if you include categories 1 and 2, that covers pretty much the entire service. It is pretty much business as usual that the Government are consulting on. In essence, they are asking, “Should we prevent ambulance workers going on strike?” That is the net effect of saying that the minimum service level is the entire service. Again, I think that there is some confusion there.
The ambulance service also points out that the Government are, in part, driven by the fact that they are failing to meet their targets. Now they are consulting on what should be in categories 1 and 2, so we may end up consulting on a minimum service that will itself have to change as the Government change their definition of what constitutes categories 1 and 2 because of the pressures on the ambulance service; for example, there are suggestions that some people may no longer be categorised as category 2 until a further assessment of their needs has been made. Again, we are consulting on something that may move as the consultation progresses. We have a problem both with the generality of the health service being included and around the specifics on the ambulance service.
I want to raise one further issue, which relates to the speed with which the legislation has been introduced. I am not a civil claims lawyer but I know that their job is to pursue all possible angles in favour of their clients. We also know that the NHS is already paying out more than £2 billion a year in compensation claims, including claims made for failures to deliver on the agreed levels of service for ambulances and emergency care.
This legislation could change that landscape in several ways. First, if the minimum service level has been defined yet there is still a failure, there will potentially be a claim against the Government who set that minimum service level. If I am a claimant lawyer, I am going to go for every angle; one of the angles is to say, “The minimum service level was insufficient so I am going to try to drag the Government into the case”.
If the minimum service level was set but the work notices were insufficient, I would go after the trust and try to bring it into the case, saying that the only reason my claimant suffered was because the hospital trust failed to deliver sufficient work notices. Even the existence of this law could fundamentally change the landscape for those claims. If you fail to exercise that law, which the Government keep saying is a measure of last resort, claims could come in to the effect, “You had a law for minimum service. I suffered at the hands of the NHS because there was no minimum service level in place, but the Government could have done something because the legislation was there”. I see the noble Baroness, Lady Chakrabarti, nodding, which is encouraging given her legal experience.
I hope that the Minister can say in response, “We’ve worked all this out, don’t worry. When we drafted the legislation, we figured out the effect of having law on minimum service levels, questions around work notices of minimum service levels and how the responsibility of the Government, the trust and others would factor into the landscape of compensation claims once all this has occurred.” I fear that the Minister may not have all that to hand and, frankly, that it has not been done. This is another example of what happens when you rush legislation. There are all kinds of consequences to this Bill because it was not introduced in a thoughtful, careful manner but to fill a government communications grid: “We have strikes; we want to show that we are doing something for the public; we will bring this in.” The health service element creates more questions than answers. I appreciate that the Labour Front Bench has tabled amendments that would remove that.
Amendment 4, which lists the different professions that might be expected to be included, is also interesting. The noble Baroness, Lady Chakrabarti, mentioned earlier that we need foreseeability. The fact that there is no foreseeability in a phrase such “health services” makes it hard for any of us, and certainly for those professions, to understand whether they are in or out. I suspect that the Government will say that where the Opposition would exclude a list of professions, they would include it. Even that would be better than what we have today. If they do intend to include physiotherapists, pharmacists and other workers in the legislation, they should list them in the Bill.
It is not acceptable to use a phrase such as “health services”, which does not inform those hard-working professionals. There is not one profession on that list that does not have a staff shortage right now. We have this list of professionals, but we do not even have the decency to say to them in the legislation, “By the way, at some point you may be subject to minimum service levels being imposed and work notices being sent to you as an individual professional in that job.” We leave it open. We leave it for them to guess.
Both amendments make sense, in that they test the Government’s rationale for including health services and they have thought through the implications for health services in the longer term and try to get more predictability and certainty. If a particular group of professionals are to be included, let us see them in the Bill rather than just saying, “Well, ambulance workers, yes, they’re clear; but for the rest, maybe, maybe not.” That is not good enough when we are talking about people’s essential rights and things which may affect them personally, as they will be press-ganged into coming to work against their wishes at some unknown future date.
Baroness Noakes (Con)
My Lords, the noble Lord, Lord Allan, says “Who asks for this Bill?” He then tries to portray that as a binary thing—either workers and unions, or employers, claiming that neither of those groups wants it. However, he and others who oppose this Bill are missing out on a crucial third group: the users of services. This is the Government acting on behalf of the users of services generally. By taking the power to create minimum service levels, they are giving themselves the power to act for the users of services if the need ever arises. Broad terms are used to allow the detailed minimum service levels to be devised within that. Obviously, when regulations are produced they must be very precise, because they will affect whether individual workers will have to comply with work notices.
I should also say that no employer is ever forced under this legislation to issue a work notice; it remains entirely voluntary. Noble Lords should start to see the Bill in a much broader sense, rather than that of trying to create yet more disharmony between employers and their workers.
The Lord Bishop of London
My Lords, I rise to speak to this group of amendments on the inclusion of health services in the Bill. I am sorry that I have not been able to speak before. I declare my interests as set out in the register.
I have been a union member. I joined as a nurse—and as an NHS manager and a civil servant in the Department of Health—because I wanted protection. The relationship with unions was critical; it was the way in which we improved patient care. One of my overall concerns about the Bill is that it has the potential to break down the relationship which is so vital for patient care, as the noble Baroness, Lady Noakes, said.
I am grateful to the Royal College of Nursing, which has helped me in considering the Bill. I am sure that it will not surprise noble Lords to know that it does not support the Bill, for what I see as some good reasons: not least because it curtails the freedom to participate in what otherwise is lawful action.
My right reverend friend the Bishop of Manchester regrets that he cannot be here, but he shares my concern that far too much power is given to the Secretary of State in what we have already heard is only a skeleton Bill, and that there is a complete lack of clarity about how it could be used. It is open to abuse. I am surprised that, as many others have said, the detailed policy that becomes legislation is not there. I am concerned that those who work in the health service probably cannot see whether they are in there or not.
I support the noble Lord, Lord Allan, and the noble Baroness, Lady Chakrabarti, regarding the definition of health services. It is such a wide definition that leaves it to the imagination whether you are covered by it or not. I do not believe that this is for the professional groups, but for the individual. I am also very conscious that we have talked a lot about trade unions, but the health service is about individual nurses, doctors, health visitors and midwives who seek to do their best for patients. One of my great concerns is that the Bill could lead to the sacking of staff for taking what otherwise would be seen as lawful strike action. They are the nurses, midwives and doctors whom we can ill afford to lose.
As has already been said, the reality is that those who work in the NHS do not take strike action easily. They choose to do it only because they are frustrated that their voices are not being heard when they express their concerns about patient standards, workforce levels, recruitment and retention, and the role that fair pay plays in this. In September, the Nuffield Trust reported that 40,000 nurses left the profession last year, and we are still waiting to see the arrival of the workforce plan. Meanwhile, healthcare workers are spread more thinly, at the expense of their mental health and well-being.
It is amazing that the legislation talks about minimum service levels, yet this Government resist setting minimum standards for nursing and other health professions. If we want to ensure standards of patient care throughout the 365 days of the year, the focus should be not on banning strikes but on getting in place minimum staffing levels to ensure that quality patient care is given. For the Government to fire anyone using strike action when they try to raise a concern about the conditions set by the Government is ridiculous and undermines the dedication of staff in the NHS.
I have a question. Rather than passing the Bill, should the Government not be spending more time listening to and addressing the concerns of healthcare staff, to hear the solutions they believe they have to ensure that patients get the care that they require?
Finally, the other concern that has been raised is around trust and staff morale. The reason staff in the health service are striking partly relates to morale, and also to trust. I am concerned that the Bill will undermine the trust that is there and further undermine morale. We saw something of that trust undermined when this Government were seeking for healthcare professionals to be double-vaccinated against Covid. Although I am a great supporter of vaccination, we were heading for disaster. I am concerned that the Bill undermines trust and morale. What risk assessment has been made of the effect of passing this Bill on staffing levels of the NHS in particular?
Lord Hendy (Lab)
My Lords, I have the honour to serve on your Lordships’ Delegated Powers and Regulatory Reform Committee. As noble Lords will know, in our 27th report we dealt with this particular Bill.
There is an issue which arises in relation to these two amendments. I would like to read to your Lordships just three paragraphs from our report. Paragraph 17 says that
“the Government are ‘of the view that the detail required to set the level of service for each relevant service is not appropriate for primary legislation’. But the Memorandum does not explain why setting out any detail on the face of the Bill would be inappropriate. Parliament is not allergic to matters of detail, particularly where it relates to an important matter such as the right to strike.”
Paragraph 19 says:
“The Government have chosen to put no detail in the Bill in relation to minimum service levels, leaving the matter entirely to regulations. Important matters of detail should be included on the face of the Bill, perhaps with a power to supplement those matters in regulations.”
At paragraph 23, in conclusion on this aspect—there are other aspects to be dealt with—we say:
“Given the absence of an exhaustive or non-exhaustive list in the Bill of the matters that can be included in regulations, the unconvincing reasons for this power in the Memorandum, and the absence of indicative draft regulations illustrating how the power might be exercised, the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels in new section 234B(1) of the 1992 Act is likely to be exercised. In the absence of a satisfactory explanation, we regard the power as inappropriate.”
I looked at the consultation paper that emerged in relation to health services, which has already been remarked upon. It is confined simply to the ambulance service. I looked to see what the criteria for setting minimum service levels might be. I can see that, right at the end, there is half a page suggesting to consultees that they might wish to specify category 1 and/or category 2, and that in respect of one service they might be favourable to a percentage of the ambulance service being carried out. But there is nothing, as far as I can see—the Minister will correct me if I am wrong—to indicate what the metrics are. What are the factors to be taken into account in setting minimum service levels?
This is not just for the ambulance service. As has already been remarked, in Amendment 4, my noble friends set out a whole list of potential categories of worker in the health service—and very diverse it is too. What is it that the Government have got in mind to formulate the way in which the minimum service levels will be articulated in respect of each of these trades, professions and subcategories of worker? That is my question to the noble Lord.
Lord Prentis of Leeds (Lab)
My Lords, I support Amendments 3 and 4 in the names of my noble friends Lord Collins and Lady O’Grady. Noble Lords will know that I have already expressed my opposition to the Bill and, in particular, my opposition to skeleton legislation such as this, which gives Ministers unfettered powers to amend, repeal or revoke, calling into question parliamentary scrutiny, which matters.
Amendments 3 and 4 relate to health and would remove health services from the Bill. Quite simply, this Bill has the potential to wreck the partnership working that has been the bedrock of industrial relations in our NHS over 70 years. The workforce is 75% women, as we have heard, and 29% ethnic minority. In relation to health, the Bill is rushed. It is deficient to its core. It weakens protections against unfair dismissal. It flies in the face of ILO labour standards, and it could violate the Human Rights Act. Much of the Government’s argument rests on the ambulance service, which has just been mentioned.
In November, the Government praised the NHS, stating that important factors exist to mitigate the impact of industrial action in that sector. It was put forward as a really good way of working when it comes to industrial action. But by January, the same Government said that ambulance workers had refused to provide a national safety net. What an about-face in only six weeks. Why did it happen? What had been discovered that was not there before? Nothing could be further from the truth. Unions and staff representatives reach direct agreement with their employers. They do it before any action is taken, not on the day. It includes call volumes, rapid mechanisms to bring staff in if needed and constant contact with management. They reflect local circumstances. I do not know how many people have seen the folders of procedures—I would love to give a copy to the Minister—but they are not just two or three pieces of paper; they are whole folders of procedures. The Minister said that a number of ambulance trusts stated that they were not getting agreements to enable them to be satisfied. Where are those trusts? We asked employers which trusts are not happy, and said that we would talk to them, and we were told in no uncertain terms that they did not know where the information had come from.
Looking at, say, the ambulance service, and at whether it needs this additional restriction on taking industrial action, I am not too certain why this should be the case. The Government criticised ambulance workers for guaranteeing only category 1 999 calls. This is misleading. Calls in category 2 are answered if the call has been put through by a clinician, and usually only half of category 2 calls are an emergency. The Government have run two successful pilots where category 2 calls have been directed to alternative services rather than being dealt with by the 999 system. So why does this Bill call for 100% answering of 999 calls—the so-called minimum standard—when in 2022 the figure answered on a normal day was 77% and in 2017 was only 76%?
Baroness Chakrabarti (Lab)
My Lords, it is with a heavy heart that I welcome the Minister—the noble Lord, Lord Markham—to this Committee. That heavy heart is for a few reasons. The first is that in his time in your Lordships’ House I have found him to be one of the kindest and least combative members of the Government, so I can only imagine what he feels about applying this kind of approach to industrial relations in the health service.
That takes me to my second real regret about this aspect of the Bill. Of course I find the Bill objectionable per se, but I find it particularly distasteful in relation to health services. That is because these people have been the heroes of the pandemic. I am personally embarrassed that it feels like a very short time ago that I was standing with my neighbours, practically in tears, bashing pots and pans in gratitude to these people. We in this House are now talking about imposing minimum service levels on them, as if that is necessary.
What is more, some categories of these health workers are highly regulated and ethical professionals. Even outside pandemic circumstances, we all put our lives and those of our loved ones in their hands. We trust them to do things that we do not understand: that is the level of trust that we have in these people. It is, in the words of the right reverend Prelate, a terrible statement of a lack of trust—it undermines a sacred trust—for politicians to be inflicting this on these highly ethical health workers. I really wonder, if we were to have a focus group or a poll of the public, and measure the trust index of different categories of people in public life and in different professions, where nurses, doctors and other health workers would sit, compared to—dare I say it—lawyers and politicians.
That takes me to a further regret, which was put so well by the noble Lord, Lord Allan of Hallam, who, if he is not careful, is going to be competing with his noble friend Lord Paddick for who is the most legally literate non-lawyer. He hit on a very important point that is specific to health services: the litigious possibilities. In relation to the Bill more generally, we have already touched on the dangers of litigation in relation to whether the Secretary of State chooses to make regulations in an area or not. Some people might seek to challenge the making of regulations but, of course, there is also the possibility of judicial review by other groups of the Secretary of State not making regulations. This will come whenever something is effectively delegated to executive discretion. That executive discretion can be subject to judicial review and litigation. Governments of both stripes get annoyed with judicial review, but there it is: it is part of our rule-of-law system in a constitutional democracy.
In addition to that potential for litigation, we then have the negligence lawyers. As the noble Lord, Lord Allan of Hallam, put it so well, we now have oceans of possibility of claims made against particular employers for potentially not issuing these notices in circumstances in which they did not think it was necessary. To be in hospital is to be sick, and there will sometimes be bad outcomes, and we now have this new possibility for litigation about the extent to which issuing or not issuing work notices may have contributed to your loved one’s demise. That needs to be considered.
The Minister was not here during debate on the earlier group, so to help him out I say that he could borrow the script of his noble friend Lord Callanan. In relation to some points, he said, “I can’t explain this point to you because, of course, it is legal advice that I have taken; I’ve taken it very seriously but I can’t tell you what’s in the legal advice.”
When other points were put to the ever-resilient Minister, the noble Lord, Lord Callanan, he said, “The reason why this is in and that is out is a political decision”. It is either legal advice, which he will not comment on, or a political decision as to why these categories are so broad—or why there are six of them and not seven. If we wanted more, he was saying, the Government would give us more, but they would not give us fewer. The point is not about the length of this list of services but about the precision and rationale that went into making these choices.
The noble Baroness, Lady Noakes, says that it is all very well talking about the unions on the one hand and employers on the other, but I think she said that the Government are taking powers for themselves to act on behalf of service users. There are two points there: one is that when we talk about as many people as we are in the context of providers of health services, that is a lot and they are service users and providers at the same time. But the other, which was the crucial element in her remarks, is that the Government are taking powers for themselves. They should not be doing so. If legislation is truly necessary in relation to health services or anybody else, it should be for Parliament to have a Bill before it that is specific enough to provide foreseeability, in accordance with the law, and therefore comply with convention rights.
In the end, I have to hand it to the right reverend Prelate: the issue is about health services being too broad. As my noble friend Lady O’Grady of Upper Holloway asked, will it cover Amazon? I look forward to the answer on that because it would be pretty sweeping and concerning if it did. “Health services” is broad; it is not precise as a concept. My real sadness about health services being attacked in this way is the issue of trust. The Government should be building trust, post pandemic most of all, between people and vital healthcare workers and not undermining it.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
I thank the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, for their amendments. I also thank the noble Baroness, Lady Chakrabarti, for her kind words.
Amendments 3 and 4 seek to remove the health sector and health services from being within scope of having minimum service levels implemented. As my noble friend Lord Callanan said earlier, the key sectors outlined in the Bill broadly stem from the 1992 Act, as amended by the Trade Union Act 2016, as they have long been recognised as important for society to function effectively. Strike action in some areas of health services can put lives at risk or cause serious harm to patients. As my noble friend Lady Noakes rightly pointed out, it is about protecting the patients; that is why we have brought this provision. It has the potential for far-reaching consequences for members of the public who are not involved in the dispute. That is why we are looking to include the health services within the legislation.
I will try to answer some of the specific questions from the noble Baroness, Lady O’Grady, the noble Lord, Lord Allan, and others on why we are including health in the minimum service levels. We need to point only to recent experience in the ambulance negotiations, where there were concerns that many trusts were not sure, right up until the night before, whether derogations would be approved. The thinking behind the need for consultation was that we can have that certainty.
At the same time, the nurses’ and the doctors’ unions said, in their recent strikes, that they would not cover A&E. In those circumstances, noble Lords must accept that there was a real possibility of not being able to provide A&E services, which would obviously threaten the lives of patients. That is why we feel the need to put those protections in the minimum service levels. However, the most important thing in all this is that the Bill is just enabling legislation; our sincere hope is that it is never needed.
Lord Allan of Hallam (LD)
On the recent actions, the Minister talked about how often discussions went to the wire and agreements were reached the night before. Are there any instances he would share with the Committee in which the cover of the voluntary arrangements actually failed, as opposed to going to the wire but getting there in the end?
Lord Markham (Con)
We absolutely try to guard against that possibility and get there in the end. The sincere hope is that none of this is ever needed but, as both the nurses and the unions are saying that they will not provide A&E cover—we are seeing a lot of dates where there might be strike action by more than one union at the same time—I think all noble Lords can see a real possibility that A&E services could not be provided in those circumstances. It is those aspects we are trying to protect here. The hope is very much that it is never needed because the trusts, as has happened to date, will be able to put in place the right voluntary agreements. That is the purpose behind this.
I will try to answer the questions raised by the right reverend Prelate the Bishop of London, the noble Lord, Lord Prentis, and others, about trying to undermine the trust between the hospitals, in this instance, and employees. I go back to the position that it is for the trust to work with local unions to work out what the best level is, in the hope and knowledge that this will probably never be needed. It is just enabling legislation because we can see that there are circumstances, as I mentioned before, where it might be needed.
I will try to answer some other questions. On the point about the treatment of devolved Governments, I go back to the point of it being up to individual trusts.
Lord Collins of Highbury (Lab)
Before the Minister moves away from the trust issue and the point made by the right reverend Prelate, does he think that the threat of this law will impact trust and confidence in the current arrangements? Does he sincerely believe that the threat being introduced will not impact that trust?
Lord Markham (Con)
I believe that the principles are there in the derogations. Again, I believe no one wants to see any circumstances where there is a threat to life. That is felt uniformly by all of us and everyone in wider society. At the same time, the point I made is that, if you have nurses, doctors and ambulance workers all on strike at the same time and all saying that they are not going to provide A&E cover, we can all see the very real prospect that that is going to be a threat to life and limb. Those are the circumstances that we are talking about.
To answer the question from the noble Baroness, Lady O’Grady, if a trust within a devolved Government does not want to take this up, it does not have to. In exactly the same way, a trust in England does not have to take this up if it does not feel that it is needed, but it is there as a last resort.
To further answer some of the questions on whether that could involve private companies, maybe the best example is the case of the train services. That is obviously a different aspect of this, but in some areas of health we know that we are moving towards a digital world. As the noble Baroness knows, it is something I am personally responsible for. We can see digital services being the backbone of the health service more and more. In some cases, their ability to be there will be vital for the protection of life and limb. These may be unlikely circumstances but, in all honesty, I can see circumstances where that would need to be involved if it meant that there was some risk to life and limb.
Lord Fox (LD)
I have not been participating in this group, but I have been for the rest of it. I am intrigued by that answer. I am wondering how a private company would know that it falls within the remit of the Bill. Is the first time it would find out when it is required by the Government to deliver a work order to its employees? Will there be some other form of formal notification that may fall within the ambit of this legislation when it commences?
Lord Markham (Con)
I thank the noble Lord. This again relates to consultation. In all of these circumstances, for services that we think could be critical, we would go through the 12-week consultation process, followed by the 12-week implementation period. That is how the private company in this example would know there was a possibility of becoming involved in this, and there would be the consultation process to consider the matter fully.
On whether this is compatible with Article 4, again, we are talking about only circumstances where people potentially going on strike would cause a threat. We have circumstances like that already: the police and the military are not allowed to strike, and it is not considered that that conflicts with Article 4. So I do not think there is a read-across in the same way—
Lord Collins of Highbury (Lab)
In the two cases that the noble Lord mentioned, commitments were put in place for both the Army and the police. Does he think that those sorts of commitments should be given to our health service workers, who delivered a lot during the Covid epidemic, as he knows?
Lord Markham (Con)
We all agree that they did a huge amount. I do not think that there is a particular difference in circumstances: the principle behind the derogations today is to provide that life cover. That is absolutely there, which is why the hope and the thought is that this legislation might never need to be used. As I said, it is very much a back-pocket thing because, in the circumstances described today, it has managed—
Baroness Chakrabarti (Lab)
“Health services” need not be as broad in the Bill. In his gracious response, the Minister talked about the life and death level of risk. If that is the case, why should the provision not be narrowed from “health services” generally, which is incredibly broad—it covers everything from dental hygiene to nutrition advice—and tightened to the life and limb cover he refers to?
Lord Markham (Con)
We are talking about the absolute minimum services. As I said, we had the consultation process. Clearly, we would be saying that this is an area where there is a real concern over the risk to life and limb—that would not apply to some of the noble Baroness’s examples—and we would then go into the 12-week consultation period to work through that. The burden will be very much on us to show that that risk to life and limb absolutely is there, because that is that principle behind all of this.
Lord Collins of Highbury (Lab)
So is the noble Lord saying that those are the circumstances in which the powers in the Bill would be introduced? If so, can he explain passenger transport to me?
Lord Markham (Con)
I am well versed only in the area of health, and I will defer to my noble friend to deal later with that. I am replying specifically on health.
Lord Fox (LD)
The Minister needs to understand that we are taking the whole Bill in this Committee, not just the health part—we are thankful that he has come to speak to that part. But we are trying to understand how we have train services at one end and resuscitating people on the verge of death at the other, and we are trying to find a common legal structure that fits them all. Does the Minister agree that there is a big difference between the minimum service level on a commuter line from Croydon and the minimum service level in an accident and emergency hospital? Can he explain how we are supposed to square those two issues within the framework of this legislation?
Lord Markham (Con)
I thank the noble Lord. I believe that there will be a group of amendments specifically on transport later on. That will be the opportunity to answer those questions. I have been drafted in—dare I say it—at the last moment, because it is a very important issue and I wanted personally to talk about the health aspects, which I am attempting to do, so please forgive me if I try not to stray into other areas. There will be the opportunity to discuss transport later on.
The noble Lord, Lord Allan, asked who wants this. It is a backstop power. Trusts will never need to use it if they do not want to. I believe that most trusts, and I hope all, have excellent relations and are able to make sure that these provisions are never used or needed.
Lord Allan of Hallam (LD)
It is helpful having the Minister here—we appreciate it—because he will be responsible for those health trusts. I am cautious about the notion that it is a backstop power. It is something that the Minister repeats often, but is he concerned that there will be pressure either for the legal reasons that the noble Baroness, Lady Chakrabarti, and I have outlined—that there will be judicial processes that force trusts to think that they have to impose a minimum service level whether or not they want to—or just political pressure? The Government have brought this legislation in. If trusts say, “Look, we don’t want to impose this, because we think it is bad for our area”, are Ministers really going to sit back and say, “Fine, we’re not going to bother”?
Lord Markham (Con)
As I answered earlier on the devolved Governments, by definition, we accept that different trusts have the ability to work out what is best for their own area. Clearly, devolved Governments will each have their own opinion on how they want to act. The same principle exists in each place. We are not saying to each trust, “Thou shalt enact it in this way”; we are just giving those backstop powers. The most important thing here, which I think we all agree on, is for there to be the ability in all circumstances to protect life and limb. If doctors, nurses and ambulance crews all go on strike at the same time and say as part of that that they do not want to provide A&E cover, that is a circumstance where we are not able to provide those minimum services. I think that most fair-minded people would conclude that there is a risk to life and limb in that case.
The points made about civil claims—I know that they are very much the concern of the noble Lords, Lord Kakkar and Lord Patel—will be addressed in considering later amendments.
Lord Thomas of Cwmgiedd (CB)
I want to take up the Minister’s point in relation to devolved Governments and health services. As I understand him, assuming the Bill goes through and the Secretary of State for Health decides that there is to be a minimum service level, that does not compel the Governments in Scotland and Wales to adopt it; it is completely voluntary for them, just as it is for trusts. Have I understood the Minister correctly? If neither trusts nor the devolved Governments are in any way bound to impose this, it seems to me a matter of such importance that it ought to be dealt with by specific provision in the Bill. Otherwise, one will have problems for the future. The last thing we want ever to do is to have to rely in any actions that follow on an assurance given in this House—not that I am doubting it for a moment; it is just a question of clarifying how this works. It is a matter of such importance that it must be clarified. The Bill can easily be amended to make it clear, both in respect of devolved Governments and of health trusts, that these are the standards set but the devolved Governments do not have to impose them.
Lord Markham (Con)
Again, my understanding is that there will be later groups of amendments where we will talk specifically about the devolved Governments, so there will be further opportunities then to discuss this matter. However, on the principle the noble and learned Lord raises, we are setting down, in consultation, what we think the minimum service levels need to be to protect life and limb in these circumstances. In the case of ambulances, which was mentioned, that covers the ability to answer 999 calls, to categorise whether it is a category 1 or category 2 call—by the way, we are not seeking to change the definitions of category 1 and category 2—and to ensure that those calls can be answered, because they are life-threatening circumstances. To enact that, it is up to the employer—in this case, the trust—to work with local unions to ensure that it is in place, and how trusts decide to do that is up to them. It would be fantastic if they never needed to refer to that, but we, the Government, want to protect these circumstances so that we will not have occasions when A&Es are unable to operate.
Lord Thomas of Cwmgiedd (CB)
It may be that we need to go into this matter in some more detail, but what concerns me is this: I do not really know the detail of health law but let us assume that trusts are under a legal duty to carry, and to provide for, hospital services. So I assume that the Minister is saying that, as this goes forward, there will no comeback from the Government on a failure to exercise a legal duty to follow that, if they decide, “No we don’t want to impose this”. There will be no comeback, because it will be up to them.
This becomes very important when one turns to the liability of trade unions, because if a liability is imposed on the health trust for failing to comply with minimum standards, and it does not do so for various reasons, is there any consequential liability to the trade unions? This is quite a difficult and important subject, but for the devolved Governments, and, in this case, for health trusts, it is critical to know to what extent they are bound, when they take a different judgement on how to deal with the strike, to follow the minimum standards established by the Government. It is a critical question, and I do not want to be unfair to the Minister by making an intervention.
Lord Markham (Con)
I thank the noble and learned Lord for his comments. As I have said, in these circumstances we are talking about putting in place those minimum service levels for the trust to be armed with and to be able to enact. We are not trying to put in place any legal framework that we can use to go back and sue the trust for not holding to it, and we are not trying to put legal obligations on the trust to do it. Instead, we are trying to give an enabling ability, to be used only, as I said, as a backstop in these circumstances, and with the hope that they will never need to take that forward.
Baroness Chakrabarti (Lab)
I appreciate that the framework of the Bill as a whole is not the Minister’s responsibility; he is in Committee to talk about health services in particular. So I will ask him a question specifically on health services. Given his very clear answers that he anticipates the life and limb health provision being a matter only for the Bill, would it not be wise, advisable and appropriate for the reference to “health services” in the Bill to be tightened, so that it is clear that the regulation-making power is only about the life and limb provision he has talked about so extensively and explicitly?
Lord Markham (Con)
Again, I believe that it is trying to work off the 1992 definitions and work. The beauty of these debates, as I have come to appreciate about the House of Lords and the job that it does, even in the short time that I have been involved, is that they make sure, through this good critical challenge, that we can ensure that the legislation is doing exactly what we want it to do. We need to make sure that we get those definitions correct and, clearly, the beauty of where we are at this stage is that we have that ability. I thank noble Lords for that, and I hope that they can see by my responses that this is something that I want to make sure we get right.
I am glancing through the remaining questions—but I hope that I have answered the substance of the questions.
Lord Allan of Hallam (LD)
I appreciate the Minister taking so many interventions. On the question of whether the Government have done any modelling, when they did their analysis of the legislation, was any modelling done to try to understand the potential impact on legal liability, civil claims and claims against the NHS for compensation? It would be helpful for us to have that information, because it will be a material factor as to whether a trust, as the Bill says “may” issue work orders; it says “may” rather than “shall”. Whether the trust feels that it can exercise that discretion will depend very much on whether it is incurring additional legal risk. If there is material on that, it would be helpful for us to have it as we go through the scrutiny process.
Lord Markham (Con)
First, yes, that has been worked through on this. Secondly, that is one of the purposes of the consultation. Thirdly—this is the point that I was about to make—as the noble Lord will know from my contributions, I always like to follow up in writing when there is a detailed question. If I have missed anything or the opportunity to make more thorough points, I shall take the opportunity to do so.
I hope that I have given a good sense of direction of where we are coming from on this and why we feel that this provision is essential in these circumstances to protect the patients.
Lord Hendy (Lab)
I am very grateful to the Minister for spelling out the criterion for minimum service levels in the health sector, which is life and limb. Can I explore that a bit further? Life and limb would obviously have applicability to A&E and, clearly, to the ambulance service. Is not the implication that that means 100% service for the ambulance service? I cannot see how ambulance staff are going to know, until they get a call, whether it is a life and limb situation or simply somebody who has fallen, is uninjured but needs helping up—or whatever the situation might be. Can the Minister assist me on that?
Lord Markham (Con)
Yes, that is very much what happens at the moment, so that is the categorisation process that is entered into—and, from that, they categorise whether it is category 1, 2, 3 or 4, and the response will depend on that.
Lord Markham (Con)
I shall just finish and get the point out, and then happily hear the noble Lord’s follow-up question. In these circumstances, we are saying that it is around category 1 and 2, where we really believe that there are those life-threatening circumstances.
Lord Hendy (Lab)
That is absolutely understood—but is not the implication that the ambulance crews have to be in the ambulances? They cannot be standing on a picket line; they have to be in the ambulances to receive the calls. It is only when they receive the call that they are going to know whether it is category 1, 2 or 3, or whatever the specification is. Surely it follows that 100% service must be provided by the control room and the ambulance service—or have I got it wrong?
Lord Markham (Con)
As I say, we have some good experience, because of course this is exactly what is currently happening. What is agreed between the local trusts and the unions in those circumstances is something along the lines that 50% of calls—that is my figure as an example, and please do not take it as read—are category 1 and 2. The others are not in that category, so because of that we would look for a level of workforce to cover that level of calls. Please do not take the 50% as read; I am just taking that as an example, so that the noble Lord understands the principle behind this.
Lord Hendy (Lab)
I am so sorry to intervene again; this is absolutely my last intervention. If the criterion is life and limb then many of the categories listed by my noble friends Lord Collins and Lady O’Grady—community health services, pharmacists, mental health services, sexual health services and so on—can have no fear that there will be minimum service levels prescribed for them, because they are never in a life and limb situation.
Lord Markham (Con)
Correct. I emphasise once more the process set out here: if it were decided that there was that threat, that is the point at which we would go into consultation. That is the thinking behind the process. We would have to believe that in such an area there would be a threat to life and limb, and would then go into consultation on minimum service levels. I hope that this has been helpful. It has been helpful to me as well, as ever, to see the value of the Lords. I am a big believer in critical challenge.
Lord Markham (Con)
The noble Lord never disappoints me. I always say, from my business life, that two plus two equals five. Whenever you try to develop a new service or product, you need critical challenge along the way; you take points on board and you add to it, and you end up with a better product. I thank noble Lords sincerely, and I think they know me well enough to know that I will continue to take their input as we go through this process. I hope there is an understanding by noble Lords that we are trying to strike a reasonable balance here between the right to strike and the right to protection of life and limb, and that, in those circumstances, we cannot support these amendments.
Baroness O’Grady of Upper Holloway (Lab)
I thank the Health Minister for that reply, especially given that, as he said, he was drafted in at the last minute. I thank him also for his sentiment that he sincerely hopes that the provisions in the Bill will never need to be used.
I must share with the Minister my sincere hope that the NHS will be properly funded and staffed, and that its staff will be fairly rewarded so that they will never need to vote for strike action. However, the truth is that I cannot rely on that, which is why the human rights that have been spoken about are so important. I feel very strongly that the human rights of workers should not be treated as somehow second-class or requiring less scrutiny and parliamentary accountability; they are fundamental to millions of people’s working lives. In the health service, as we have heard, this is going to continue to be a big issue for us to address.
What I did not hear was an adequate answer to the real-world consequences of the Bill on the morale of NHS staff and on the industrial relations situation in the NHS. The Minister will know how burned-out, demoralised and concerned many staff are. This is not a luxury option; it is absolutely core to how people feel they are being treated, whether they are being respected and whether their professionalism is being respected. They are dedicated to the service and any suggestion that they are not is felt to be deeply insulting. I know the Minister understands how important that is.
It is not just unions saying it. As we have heard, the employers have said that they do not want the Bill, and I hope the Government will listen to them too. By the way, there is a third part of the equation, which is service users. As I have already said, we have seen that two-thirds of the public support the nurses and ambulance workers on strike. They understand that those staff are defending the service, as much as themselves, against real cuts in pay.
Member’s explanatory statement
This amendment would remove “education services” from the Bill.
Baroness O'Grady of Upper Holloway (Lab)
Amendments 6 and 7, in my name and that of my noble friend Lord Collins, seek to test the inclusion of education in the Bill.
No doubt the Minister will be relieved to hear that I do not intend to repeat all the arguments that I made on health, but the concerns about compatibility with international law and the protection of human rights are just as pronounced in respect of the education sector. The Government need to justify why education is included in this skeleton Bill.
Under international law, when fundamental rights such as the right to withdraw labour are at stake, it is not sufficient to impose minimum service levels simply because strikes are disruptive, however inconvenient they may be; nor can the Government seek to justify curtailing the right of education workers to withdraw their labour on life and limb grounds.
I would be grateful if the Minister could explain why the Government’s mind has changed so radically in respect of the education sector from the view set out in their human rights memorandum attached to the transport strikes Bill. It said:
“In the education sector, there are various statutory duties on schools (and in particular head teachers or governing bodies) regarding the organisation, management, and control of a school, safeguarding and supervision of children (both on and off site) and health and safety duties regarding pupils which will impact on contingency arrangements needed in the event of strike action. For example, DfE Guidance for school leaders, governing bodies and employers handling strike action in schools provides statutory guidance on using volunteers to cover striking teachers and outlines how schools are often organised into ‘family groups’ enabling them to pool staff to ensure minimum services are delivered, and thus minimising the impact on children … The large number of employers in the education sector would also likely make minimum service arrangements difficult and very burdensome to implement.”
That is what the Government’s own advice said.
Yet again, the Government stand accused of attempting to distract from the causes of the dispute by attacking the fundamental rights of staff. Even using the most conservative IFS figures, between 2010 and 2022 average teacher salaries were cut in real terms by at least 11%. That has led to a recruitment and retention crisis and burnout among those who remain. The public get that the root cause of this dispute needs to be tackled. Polls show that a majority of those who express a view support teachers taking strike action, and anybody who has tuned into Mumsnet will have seen there is significant support for teachers there, too. Yet again, it is regrettable that the Government have failed to launch a consultation so that the views of the public and those most affected can be taken into account by both Houses of Parliament. We also really do need an adequate account from the Minister of how these proposals will work when education is a devolved matter and the consent of the devolved nations is withheld.
I also want to highlight the very real impact of what will happen if the Government persist with this Bill and with attacking teachers and their unions. The consequences for education services could be far-reaching. As I have argued before, suppressing strikes will not deter workers who feel they have a just cause. We know that the current strikes have been prompted by years of real pay cuts and the devastating impact and consequences of recruitment and retention issues. Unless the root causes of the strikes are addressed, if this Bill becomes law, we will simply see an upsurge in other forms of action. Just to give noble Lords an example of how real that is: using ONS data, the TUC calculated that the Government benefited to the tune of £8.6 billion from unpaid overtime by public sector staff last year, with an average of over 8 million hours of unpaid overtime each week.
As we saw in the recent WhatsApp leak, teachers’ work ethic may be described by some Ministers—or former Ministers—in a contemptuous fashion. But it is worth remembering that in that unpaid overtime league, teachers are near the top. Contrary to the view expressed by the then Education Secretary that teachers do not want to work, our schools only survive because staff put in hours and hours of unpaid overtime each and every week. Imagine what would happen if that good will was withdrawn with, for example, a work to rule.
I see no evidence in the Government’s red-rated impact assessment that any of this has been addressed in any serious fashion. There is a very real cost to getting this wrong—all the more reason why this Bill should be subject to proper parliamentary scrutiny and accountability. I beg to move.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, I have to inform the Committee that if Amendment 6 is agreed to, I cannot call Amendment 7 by reason of pre-emption.
Lord Fox (LD)
My Lords, I was hoping that the noble Baroness, Lady O’Grady, would leave me something to say, and I think there is a small window of opportunity. The Minister will be pleased to know that it is a small window, as I note he is on his seventh Haribo and may need further sustenance if we go on much longer. I thank the noble Baroness, Lady Barran, for coming and speaking to this. It is very good to have the portfolio holders to address this, and I really appreciate that.
In the to and fro on Amendment 2, we began to nail what the Government mean by “education services”. The Minister said that it is more than just up to 16 but she did not go further. We are still not clear whether it covers further education and higher education, so Amendment 7 is a useful starting point in trying to set out in some detail what education services the Government have in mind. There are others—cleaning and janitorial services, for example—that are not included in that but are crucial to the safe running of a school. Anything that the Minister can say about what the Government feel is within the scope of the Bill would be helpful.
I am going to focus on schools because that appears to be where the Government are focused at the moment, but I am happy to be guided in other directions by the Minister. As the noble Baroness, Lady O’Grady, said, there was strike action in schools by members of the National Education Union in February and further action is planned, apparently, with strike action from the National Association of Head Teachers taking place in Wales; in Scotland, the Educational Institute of Scotland and two other unions are also planning future walkouts. So this is a serious issue.
We should be aware that there are a number of wide potential implications when there is a teachers’ strike. There are issues around child safety, parental inconvenience and the economic aspect for parents, who may then need to arrange childcare. Of course, there are also the effects on a cohort of children who may be missing out on essential education. There are ballots going on, so this is a real issue.
In order to understand this issue—indeed, to understand it at the micro, school level—I will assume that this Bill has been passed and the Government have established a minimum service level for schools. At the heart of this is the question of how the Bill is going to operate. There are very many schools and therefore a great number of employers in the school sector. I am interested in how the Government expect to enforce a minimum service level in schools. Who will be the employer who may field a work order? Is it the head teacher? Is it the unpaid, volunteer governors? Is it the local authority? If it is the local authority, how will free schools fit into this because they do not have a local authority? Is the governing body of a free school then the accountable employer? Clearly, the Government will have thought through every detail here. I am very keen to hear the details of how the Government expect to manage minimum service level delivery at the school level.
Perhaps the Minister could then tell us how many teachers in a school will make up the minimum service level. I am not aware of any state schools that have too many teachers; indeed, most of them tell us that they have too few teachers and too few classroom assistants. So what will be a minimum service level for teaching children in our schools in the event of a strike? Will it be everything that they are doing now—in which case, as we will discuss in other areas, the strike would, in effect, be banned—or something else, such as childminding? If it is childminding, the noble Baroness, Lady O’Grady, has set out the requirements that already exist under the statutory duties for schools and in the Department for Education’s guidance, which require head teachers to take into account the implications for how children are looked after and safeguarded in the event of a strike.
It is good that the noble Baroness, Lady Barran, is here. I really want to hear about all of that micro detail because it is understanding the detail that will help us to see inside the Bill and bring it to life. Because it is such a skeleton Bill, it is impossible for us really to understand the cogs and wheels that will fit together and deliver a minimum service level for our schools.
Lord Mann (Non-Afl)
My Lords, I am perplexed by this Bill and how it is worded. I am beginning to think that some deal has been done to promote the concept of an elected House of Lords because, if everything goes to statutory instruments and regulations, I am not sure of the purpose of the current revising Chamber. Perhaps some reverse Henry VIII amendments should be put in to assist that process, because this kind of business is as bad as it gets in that context.
In referencing my voluntary rather than unpaid interests, while “morale” has been mentioned, I home in on this question of the practicalities within schools. Can the Minister confirm whether any schools or larger multi-academy trusts have requested the inclusion of education and thereby schools in this legislation? If so, what rationale have they used to request that inclusion? Schools are struggling with the complexity of negotiating the additional contact hours that the Government are requiring of teachers.
My experience is primarily within the red wall. I am bemused at the politics. I have always found a Government of any colour, flavour or party picking on a particular section of the electorate and giving the impression that they are targeting them to be quite bad politics. Therefore, I am perplexed at what this is meant to do. Certainly, the parents within the red-wall areas of the country are in no way antagonistic towards a group such as teachers occasionally taking industrial action. It is very rare, but I have never witnessed or heard any antagonism in relation to that. There is sometimes sympathy, and often an agnostic position, but of the hundreds of thousands of emails that I have ever received, there has never been one on this issue. I have never heard it from a single person, even when such disputes have been in play.
That perplexes me, but something else really worries me. Can the Government confirm that the absentee rates in English schools are at the highest level in our history—27.5% on average? Is it true that in the more deprived areas, which would incorporate the red wall and beyond, it is at 33.5%, so one in three is not attending school at the moment? There are many reasons, particularly the aftermath of the pandemic and lockdown, but the behavioural issues are with younger children rather than older children, in secondary school years 7 and 8, which has not been the norm historically. Do the Government agree that with this absenteeism level, the critical factor is the good will of teachers and the flexibility of teachers to work beyond normal contract hours with those families and pupils to get the pupils back into school or to hold them in school?
That is the experience that I see and hear coming through very powerfully, and it correlates further—to elaborate a little on the point made by the noble Baroness, Lady O’Grady—in that, the more successful a school is, the more motivated the teachers tend to be. The more motivated the teachers are, the more flexibility they have and the more successful the school is. Those little bits on the side that teachers do, assisting individual pupils, are critical to how a school performs in the league tables and to what we deem a successful school.
We are in a crisis of the worst absenteeism in our schools in recorded history. How does that fit into the Government’s strategy on this? It seems to me that the inclusion of education—indeed, the whole Bill—makes no political or legislative sense. From my point of view, the inclusion of education will have the reverse impact to what the Government want on a system that is in crisis, because of the pandemic, in a way that it has never been before.
Baroness Blower (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Mann, in many respects. I began teaching in 1973 and I can count on the fingers of both hands—probably not even using them all—the number of times that I have been on strike. One of the reasons why I was not on strike in the early phases of my career was because we had sectoral collective bargaining: we could make an impact on what was happening with our pay and conditions. I very much regret the loss of collective bargaining in education because it has had a material impact on the way in which teachers are able to pursue issues with their own pay and conditions.
However, let us move on to what the Bill would do. The noble Lords, Lord Mann and Lord Fox, are of course right: there is a very serious situation with regard to recruitment and retention of teachers. That is one of the reasons why there is such a high rate of parental and carers’ support for the action that teachers are taking. To take just one example, one in eight maths lessons in schools in England is taught by someone who has no qualification in mathematics. What chance do we have of providing coherent maths teaching to the age of 18 or 19, as the Prime Minister would like, if we cannot provide it for all the children who have it at the moment?
I cannot tell you how many emails, messages and phone calls I had after people read the WhatsApp messages. The notion that a Secretary of State would say that all teachers were work-shy and did not like or want to go to work beggars belief, to be honest. For anyone who has never been a teacher, I can tell you that teaching is not for everybody, and there are people who voluntarily leave teaching because going into a classroom every day and not being successful is devastating. That is why lots of people leave the profession—because they cannot manage the stress of not just the teaching but all the accountability measures. We really need to hang on to the teachers we have, who are still going to school every day and, for the most part, enjoying their jobs, notwithstanding the terrible levels of pressure that they face. We really need to make sure that we have a proper retention system.
It seems to me that threatening those teachers with the possibility that they will be sacked if they have legitimately voted for and taken industrial action, very much as a last resort—as I am sure everybody in this Chamber knows and as has been said by Kevin Courtney and Mary Bousted, the joint general secretaries of the NEU—will not only risk the possibility of more people leaving teaching, but I cannot imagine that anyone is going to want to come into teaching when there are so many difficulties and challenges that we have at the moment.
On the other issue about cogs and wheels, I am not in favour of the fragmentation that we have seen in our education service, but fragmentation we have. The idea that we can have a minimum service level across 26,000 or 28,000 schools, not accounting for alternative provision and so on, simply is not workable. Much more importantly for me, it is not desirable. It conveys exactly the wrong impression to teachers, and we need to be talking up teaching—I am very prepared to do it—because even on a slightly bad day it is a wonderful job when you are actually in there with the children. It is not so great when you are dealing with Ofsted, and when you look at your pay at the end of the month, but it is fantastic when you are actually dealing with children and young people.
This is absolutely the wrong place to be going. I oppose this Bill in its totality, but I certainly oppose what is being said about education in this.
Lord Allan of Hallam (LD)
My Lords, I just wanted to rise briefly to follow up on a couple of points we made in the previous group that I think are applicable here. In some ways, we are dealing with apples and pears; the Health Minister talked about the legislation as being essential because of life and death situations, and I do not think that any of us, however much we value education, would argue that we are in the same game here. But on another level it is apples and apples, because the problem with both the framings in the Bill is that they just say “health services” or “education services” in this incredibly vague way. I think that some of the same criticisms about foreseeability and predictability apply here, as they did with the previous group.
Specifically in the context of education, I am keen to hear from the Education Minister a similar assurance to that we were given by the Health Minister that these are permissive powers: that affected entities may give work orders, but that they will never be forced by the Government to do so. Even if a minimum service level is established in education, I hope we are going to hear that no school, college or university would be made to give work orders; they are simply empowered to do so. I hope that will be the Government’s position; that would be consistent with the previous group. Even if they agree that this is the case, I still have concerns about the effect in practice, as I did with the previous group.
I have children who are, at the moment, in a school affected by strikes. The school is managing incredibly well; it is keeping the children in exam years in school and finding ways to safeguard the others. The principal writes to us and explains why he supports his striking staff and why they deserve a better deal. That principal is never going to implement these work orders if the Government put them in place, except in two circumstances. I think we need to explore that in the context of all the powers in this Bill.
The first circumstance is that the Government in some way try to make the principal give work orders that he does not want to give to his staff. They can do that through funding mechanisms—“You don’t have to give the work orders but, if you don’t, we’ll kick your windows in”. That is not really a free choice, yet we have to worry that this is the intention of the Government. Certainly if this Government stay in power, that is the way they would handle future disputes: “Now we’ve done the minimum service levels, there is no excuse for any school not to implement it and issue work orders, whether they like it or not”.
The second mechanism was again raised on the health trust situation, and I think it is also relevant here. It is that an educational institution feels legally vulnerable if it does not implement the minimum service levels. It could be the case for schools, but it is particularly a concern for universities. We already see universities being sued by students for alleged failures to deliver the service that they signed up for. I will not go into the rights and wrongs of those cases, but again you can imagine a situation in which a university says, “Our industrial relations are good. Yes, there is a strike. Yes, we can manage it. Yes, there is a government regulation that talks about minimum service levels, but we don’t want to give work orders to our staff because we think that will worsen the situation, not improve it”, and then find itself subject to legal action. With that threat hanging over them, the leadership of our education institutions ends up doing things it does not want to do and has not chosen to do.
The word “may” sits in the Bill and is at the heart of everything. I think this Minister will say, as the previous Minister said, “This is all optional—a backstop power—and we are not going to force anyone”. That only works if the Government can give us assurances that they are not going to run a protection racket—“Issue the work orders or we kick the window in”, name and shame, or whatever mechanism they want to use—and that they have taken the advice that says that even if they have implemented the regulations, our institutions are not required to implement them and cannot be sued through civil claims simply for failing to implement a minimum service level in a regulation under this legislation.
Lord Hendy (Lab)
My Lords, in the previous group I drew attention to the fact that the Delegated Powers and Regulatory Reform Committee report criticised the absence of detail in the Bill in relation to the provision of minimum service levels. In that group, the Minister explained to us that the criterion in setting minimum service levels in the health sector would be life and limb. Will the Minister say what the criteria are for the setting of minimum service levels in the education sector? What factors are going to be taken into account? A second and related point is about how the minimum service level is to be set. Is it going to be some percentage of the hours that teachers do, or something of that kind? What is it that the Government have in mind by way of a metric to measure the minimum service level?
As an associated point, what is the metric that employers will use to identify the workers necessary in a work notice to implement the minimum service level? My noble friend Lady O’Grady pointed out in opening the debate on this group that millions of hours are given by public service workers, and hundreds of thousands of those hours are provided by teachers in unpaid voluntary overtime. Quite clearly, the minimum service level, still more the work notice, presumably cannot specify that teachers have to work a minimum service which includes voluntary unpaid overtime, so the minimum service that could conceivably be specified is limited to the 35 or 38 hours or whatever it is per week specified in the contract of employment of each teacher. Effectively, if the Government implement 100% minimum service levels, there will be a work to rule. All the teachers will do the absolute minimum hours that their contract specifies. I invite the Minister to help us on how that could possibly be exceeded in a minimum service level and on what it is that the Government have in mind, taking that very important factor alluded to by my noble friend into account.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran)
My Lords, it is a pleasure, as my noble friend Lord Markham said earlier, to respond to your Lordships’ critical challenge. I thank the noble Lord, Lord Collins, and the noble Baroness Lady O’Grady; it really is a pleasure to be across the Dispatch Box for their amendments. I put on record the Government’s appreciation for all teachers, teaching assistants and staff who work across our schools and colleges and in higher education for the extraordinary and valuable job that they do.
Amendments 6 and 7 seek to remove the education sector and education services that are within scope of having minimum service levels implemented. As noble Lords know, the key sectors outlined in the Bill broadly stem from the 1992 Act as amended by the Trade Union Act 2016, and they have long been recognised as important for society to function effectively.
The noble Baroness asked why we need minimum service levels in education services. She can probably anticipate my answer, which is twofold: first, they have far-reaching consequences for children, who are potentially denied access to education if their teachers or other staff are on strike, and, secondly, it has an impact on their parents, many of whom work in other critical services but are unable to go to work. It is only right that these essential services, which the public pay for and expect to be there when they need them, are included in the Bill so that there is a reasonable balance between the ability of workers to strike and the rights of the public. The Government therefore cannot support the amendments.
Amendment 7 would exclude the vast majority of education services from the Bill. The Government believe it is right that the detail of specific services and minimum service levels is set out in secondary legislation. I am afraid that is why, in response to the noble Lords, Lord Fox and Lord Hendy, who asked for specific detail on criteria and metrics for minimum service, I am unable to give that detail to the Committee today.
Lord Collins of Highbury (Lab)
Sorry to interrupt, but the Health Minister was able to do that so I do not quite understand why the noble Baroness cannot.
Baroness Barran (Con)
My understanding is that the policy in this area is perhaps more developed in health, where I understand a public consultation has been published in relation to ambulance workers. That is not the case for education.
Lord Fox (LD)
In the spirit of trying to help, I can understand why specific MSLs are not possible, but the department must have in mind what it thinks a school would do and deliver in the event of a strike. Are we looking at essentially safeguarding, as I said, or are we looking at teaching a full curriculum for that school? Or could there be something, such as my noble friend mentioned, in teaching particularly crucial years in the school and then safeguarding the others? Could she give us some sense of what that looks like?
Baroness Barran (Con)
Genuinely in the spirit of being helpful, those are matters for a consultation if the Secretary of State decides to proceed with one.
Lord Collins of Highbury (Lab)
If I may correct the noble Baroness, the Health Minister was not setting out the consultation, which is restricted to the ambulance services. He was specifically talking about accident and emergency and life and limb. So the Department of Health clearly has reached a conclusion that was not subject to responding to a consultation.
Baroness Barran (Con)
I can only repeat that the Secretary of State is currently considering all options. When I am able to say more on this matter, I will be delighted to come back to the House to do so.
Baroness Barran (Con)
I will be delighted to write or take questions on this matter on the Floor of the House.
If I may continue, I will try to address some of the other points that noble Lords have raised. I think I said that on Amendment 7, which would exclude the vast majority of education services from the Bill, the Government believe it is right that the detail of specific services and of minimum service levels is set out in secondary legislation. The Government have no plans currently to move ahead with secondary legislation. Although this legislation gives us the power to introduce minimum service levels within education services, it is not our intention to do so in the short term because it is our strong preference to proceed by agreement and through guidance.
The noble Baroness, Lady O’Grady, asked about consultation. My right honourable friend the Secretary of State is considering all options at the moment. When those become clear, as I said, I would be delighted to update the House. The noble Baroness also asked about the ECHR memorandum and the reference to education. Since the Transport Bill was introduced, we have seen other essential services brought to a standstill. Therefore, the Prime Minister looked again at the issue and felt that disruption had spread beyond transport. Taking account of recent events as well as other evidence, there are a number of important services where the public should be protected, including children’s education, which should be protected against the disproportionate impacts of strike action for the future.
Lord Collins of Highbury (Lab)
If I may interrupt again, I think this is important because we are dealing with a skeleton Bill that outlines six sectors in which the Government will be given powers. What the Minister is saying—I do not want to put words into her mouth—is that, in respect of education, there is a hope that they will never use the powers that this Bill gives them, because it will be inappropriate. Therefore, I do not quite understand why education is there at all.
Baroness Barran (Con)
The noble Lord is obviously entitled to wonder; I think he goes a little far. We have been absolutely clear that we prefer voluntary arrangements.
In terms of employers, obviously local authorities are the employers for local authority schools. For academies and free schools, the academy trust is the employer. The noble Baroness, Lady Blower, and the noble Lords, Lord Mann and Lord Fox, asked if I believed that these agreements would—
Lord Fox (LD)
In the event that the Government eventually implement this, is it the local education authority that would draw up the work order and put the names on it, or is it the head teacher of the school who would draw up the work order and list the names of the teachers who are required to attend?
Baroness Barran (Con)
It is the employer, so the employer in the case of a local authority-maintained school—which is about 60% of our primary schools and about 20% of our secondary schools—would be the local authority. It would be the academy trust in relation to academies and free schools. The specific trust is the employer, and therefore it would be the board of the trust.
In relation to teacher morale and the impact of these potential minimum service levels on teacher morale, I would not want to generalise about that, but there are a number of issues that are clear from surveys, research and talking to teachers that really matter to them. One, of course, is salary; the second is workload, and the third is the behaviour that they deal with in their schools. All three are very important, but some noble Lords—I am guessing that the noble Baroness, Lady Blower, is among them—will have seen the same survey that I saw, which showed very clearly that teacher morale matched very closely to levels of behaviour and/or the calmness within an individual school. Within the department, we are working really hard on all those issues.
Those also connect to attendance, which the noble Lord, Lord Mann, raised. I do not entirely recognise the figures that he quoted. He might have been referring to frequent absence, rather than daily attendance. Most recently, on an average day, in our state-funded primary schools, 93.3% of children were in attendance; in secondary schools it was 92.2% and in state-funded special schools it was 88.3%.
Lord Mann (Non-Afl)
The Minister is absolutely right that those are the government statistics, but are they not the worst in our history? That was my point: through no fault of the Government, but because of the pandemic, we have a major crisis in schools and this has been thrown on top of it. Why worsen the situation?
Baroness Barran (Con)
We absolutely know that the pandemic has had a terrible impact on school attendance. That is why I say that the strikes at the moment are particularly unhelpful for children when we are trying to send a clear message that school is not an optional extra but something that you go to every single day. To have renewed disruption is not helpful for those children or the message that we are trying to send them. I am not confident, but I hope that I have reassured the Committee enough that the noble Baroness will withdraw her amendment.
Lord Hendy (Lab)
Can I just inquire about the Minister’s proposition that all options are being considered? Can she say whether the possibility has been excluded from consideration of requiring teachers under a work notice fulfilling a minimum service level to carry out unpaid voluntary overtime?
Baroness Barran (Con)
I am not aware of the details, but I am not sure that it would be appropriate to comment at this point.
Baroness Randerson (LD)
Is the Minister able to answer a brief question in relation to the role of school governors? They actually employ the staff—that is engage the staff. Do the Government not have concerns that these volunteers could be deterred from taking part in what is already a demanding, onerous and very skilled job by problems such as having to identify those members of staff who are needed for a minimum service level, added to their already onerous responsibilities?
Baroness Barran (Con)
I have already been repetitively clear that the Government would much prefer to see voluntary arrangements in this area. Again, having been a governor of a school, as many of your Lordships probably have, it is not about picking one single thing that is going to make it more or less stressful. We need to be very clear that the role of governors is incredibly important. We appreciate them enormously and offer them the support that they need to do their role.
Lord Collins of Highbury (Lab)
Can I just reiterate this point? The Minister says that she and her department would much prefer voluntary arrangements, as they work and they support them. What is her view, or the department’s view, of the impact of threatening to take these powers on those voluntary arrangements? Does she think that it might undermine the voluntary arrangements that she has been advocating?
Baroness Barran (Con)
We very much hope that it would have the opposite effect.
Baroness Chakrabarti (Lab)
I am sorry to press the Minister once more on my noble friend Lord Hendy’s point, but I do not think it is inappropriate because it goes to an important principle in this legislation. If there are some current services in the public space—education is the specific example given in this context—that are being provided at current levels only through a great deal of unpaid, extra hours of voluntary work, is it part of the policy behind the Bill that it is possible for a Secretary of State to prescribe minimum service level agreements that mandate unpaid voluntary work?
Baroness Barran (Con)
It would obviously depend on the contractual arrangements in place. My understanding is that not every case would be the same.
Baroness Blower (Lab)
One of the issues in teaching is precisely that all the voluntary activity is entirely without contractual arrangements. I am sure the Minister will agree that, if we bear down on people’s arrangements in the way this legislation proposes, good will—which is how we normally describe it—will evaporate as teachers will not feel valued and will certainly not feel properly rewarded.
Baroness Barran (Con)
I think the only thing I can say is that all these matters would be taken into account in any consultation if the Government decide to proceed.
Baroness O'Grady of Upper Holloway (Lab)
I thank the Minister, in particular for her willingness to carry on the conversation, whether on the Floor or through correspondence, as it has become clearer and clearer that there are number of specific major problems with this Bill that people will be looking for answers on.
On why the Government have shifted their position from that set out in the memorandum on human rights attached to the Transport Strikes (Minimum Service Levels) Bill, I felt it was a nice try, but it does not address what the Government’s position was—including the fact that there are already safeguarding and health and safety provisions in place. That is important when considering whether this is a proportionate response to fundamental human rights for workers—liberties that we have long treasured in this country.
The key message from the Minister’s response is that there is an intention to take the power but not to use it. As my noble friend Lord Collins said, it is clear that there would still be a very real impact on voluntary good will and morale. As the Minister acknowledges, that has a direct impact of the quality of the education services provided to children and is important to parents. I still feel very concerned about what scope there might be for undue pressure to come on trusts, governors and other institutions to wield and activate this power, even though it may be against their better judgement. Then we get into that highly dangerous territory, for any government of any stripe, where a strike becomes politicised. That point was made before regarding health, and it is a serious one.
I do believe that the Minister has a wise head. I encourage her to think about what it means in practice if you have an individual teacher, named and issued with a work notice, who is highly likely to be a union member who has voted for strike action. As there is nothing in the Bill to prevent this, they may have been picked on because they are a union rep or activist or because, like millions of ordinary working people in this country, those named teachers may simply hold the strong belief that they should have the individual freedom to withdraw their labour.
The Bill would ensure that, regardless, those teachers would be required to work against their will and their own conscience. They would be required to walk past their workmates, crossing a picket line—the main purpose of which is to persuade workers not to do so. The union must encourage them to comply, even if the notice was issued without the union’s agreement. All of this would be under threat of the sack. Potentially, if these mysterious “reasonable steps” are not taken, all those teachers would lose their protection against unfair dismissal.
I remind the Minister of the words of her colleague, the Conservative MP for Stevenage. He said it was “shameful” that
“individual … teachers & workers can be targeted & sacked if they don’t betray their mates.”
I encourage the Minister to talk to her colleagues and save them from themselves because this would be a disaster for industrial relations, our education service and for our children. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
We now come to Amendment 8 and the noble Lord, Lord Collins, this time.
Amendment 8
Lord Collins of Highbury
Member’s explanatory statement
This amendment would remove “transport services” from the Bill.
Lord Collins of Highbury (Lab)
It is my turn—the noble Baroness and I are a double act today, and it has been very good. I am glad we degrouped the amendments on these sectors to probe the Government on exactly what they intend, because today we heard a range of opinions that I never expected to hear. I am rather disappointed that the noble Baroness, Lady Vere, is not here to respond, because we may have got a third view, different from that of the Minister, who has been clear about the intent of the Bill—
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
I tried to ask the noble Baroness, Lady Vere, but she had prior commitments; otherwise, she would have been here.
Lord Collins of Highbury (Lab)
I hope—I plead with the Minister—that the noble Baroness reads the debate on this in Hansard. If questions arise, I hope he will encourage her to write to us, because we have heard something quite critical: a definition, for the health service, of who might be involved and the issues involved. We could understand what the Minister was saying on health. But of course he was focused on the fact that the voluntary agreements are what works. The noble Baroness, Lady Barran, was even more clear that the better way is the voluntary arrangements, the agreements in place and the good industrial relations, even when there are disagreements that lead to a dispute.
Now we come to transport, where there are obvious questions. Who is the real target of the Bill? One cannot help feeling that there is a target in it, and it is not any of the things we have heard about so far. Of course, the area where we know the Conservative Party had a manifesto commitment on was transport— passenger rail transport. Of course, that Bill did not proceed, and instead we have this omnibus piece of proposed legislation, which includes everything but with no detail, no definition of minimum standards and no proper scrutiny. Every committee that has examined this has criticised it because of that nature. This comes back my noble friend Lady Chakrabarti’s point about proportionality.
So let us focus. I will come on to Amendments 9 and 10, but let us deal with the first amendment. I will focus a bit on passenger rail, because we had a very bad red warning—is that what they call it?
Lord Collins of Highbury (Lab)
Normally that is a good thing in my party, but in this context it is not, because it failed completely. But let us go back to the impact assessment on passenger rail when it was introduced for the Bill that specifically addressed that issue.
In October 2022, the impact assessment for the Transport Strikes (Minimum Service Levels) Bill was tabled. It said that minimum service levels could have a
“negative impact on industrial relations, which could have detrimental impacts for all parties”.
It said that they could increase the frequency of disputes, meaning that
“an increased number of strikes could ultimately result in more adverse impacts in the long term”—
adverse impacts on all the people that the noble Baroness, Lady Noakes, talked about. They could lead to greater use of “action short of strike”, which would have a particularly significant impact in sectors such as fire and rail. The impact assessment further stated that minimum service levels could lead to “increased operational costs” for employers, with a “particularly onerous” burden on smaller operators, and result in lower pay and poorer conditions for union members and non-union members working in the relevant services. It went on to state:
“If terms and conditions are reduced over time relative to the strength of the economy in one sector then there is a potential for employers in other related sectors to be able to offer similarly reduced terms and conditions”—
we have certainly seen that in recent times.
Lord Collins of Highbury (Lab)
The TransPennine Express uses that clause, and that is why the public can see through this legislation. This is not about maintaining minimum service levels; this comes back to the basic, fundamental idea that this is an attack on organised labour and its ability to protect its workers. It is the thin end of the wedge, as it were: we started off with transport minimum service levels and then the Government thought, “It is very difficult to define how that will work, so let’s not do that, because we will be forced to define what a minimum service level is in the rail industry and we will have to account to Parliament for that. So let’s go the whole hog: let’s get a skeleton Bill which simply gives us the powers to set minimum service levels across a whole range of services and occupations.” They say that they are focused on public services, but of course most transport services are well outside the public sector and have been for a long time, including aviation.
How do the Government envisage minimum service levels in aviation? Do we have half a pilot? Do we have half the safety staff in a plane? Do we have half the number of planes? I suppose that most unions would go for that last option in terms of a dispute in the airline industry. It is a nonsense, and it highlights that there is a target in the Bill: it is not necessarily the taxi driver, the aviation industry or any of the other things which could be brought into its scope; it is rail passenger transport. We do not even get a mention of freight transport and other things such as that.
I suspect that, as we lead up to the election, the Bill will form part of the Government’s narrative that they are on the side of the public and passengers and that, according to them, Labour supports strikes and unions. No, the Bill is not about that; that is a false narrative. The narrative is: who defends public services and who supports the commitment of the people who serve us? It is Labour who will support the people and public services. This Government have undermined them, and that is why we have these strikes. I beg to move.
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.
Lord Monks (Lab)
My Lords, it is always a pleasure to follow the noble Lord, Lord Balfe. He followed me as president of BALPA and has done a good job, as I know from all my ex-colleagues in that union. I have long experience of disputes in the transport sector, particularly in railways. In fact, if any noble Lord has a spare half hour and wants to go through the history of flexible rostering and train drivers, I am your man. I may not sell many tickets for that particular gig, I fear, but this is the sector that it is really all about. If the Bill hits the statute book and is used, it is in this sector that the trouble will really start, because it is very strongly unionised, with workers who are no strangers to industrial action. Whether culturally or practically, they have taken it over all their history. It is part of their way of life, and the first person who issues a work notice to them will really be lighting a fire with petrol, because it is incendiary and the cocktail of the dispute will be explosive.
Let us just follow through for a moment what would happen. A work notice is issued. The workers will act collectively, not individually, and refuse it. Individuals might then be selected—this is all provided for under this wonderful Bill—and those individuals will have a choice to make: whether to go along with the work notice or to turn around and say, “We are sticking with the democratically made decision to strike, and with the union”. Then what happens? What is the response likely to be? Will the employer persist and maybe fire some of them? We will get a situation where there are two disputes: the original dispute and the dispute about reinstatement of the workers concerned. This is nowhere near where we should be going as a country, and nowhere near finding a way to improve industrial relations and get people working co-operatively and in a spirit of mutual trust and support.
With two disputes instead of one, the Government need to be very careful and think carefully about employment law. The party opposite has enacted a lot of employment law since the 1980s. Some of it, I have to say, has been well targeted and has hit the mark, and some of it has had counterproductive effects. Even the election of general secretaries of unions has had a counterproductive effect in quite a lot of unions, with the more radical candidate usually winning. A piece of legislation such as this—an obvious candidate to be counterproductive, as well as wasting a lot of time and expense in all this procedure we are going through at the moment—seems to be about a Government taking a step against the unions that is too far. The Government should pause, think again and put it in the waste-paper basket of the noble Lord, Lord Balfe.
Lord Berkeley (Lab)
My Lords, I would like to speak briefly to support what all noble Lords have spoken about so far. I am honorary president of the UK Maritime Pilots’ Association, which is exactly the same, with not quite so many members, as the noble Lord, Lord Balfe, has with his airline pilots. We have the same issue of safety. In piloting an aeroplane, you are going rather faster than a ship, and if a ship gets into trouble, it cannot stop, or stop quite as quickly, as we all know. It is a dangerous job, and the pilotage training lasts several years. You start off with small ships and then they get bigger, and the scale of your local knowledge has to be quite dramatic. In most ports, big ships are now not allowed in without a pilot, for very good reason.
The same comments apply to the railways and railway safety. Noble Lords will have seen the accident in Greece last week—a head-on collision caused by some failure of regulation. We do not have that any more. We have an Office of Rail Regulation and various other bodies that make really sure that whatever operation we do is safe. I cannot see how Ministers, or the owners who will control many of the train operators, will be able to say, “Well, you do that. It is not your decision as to whether it’s safe or not; it is our decision”. I do not think a Minister will ever want to say that they have given an instruction that might be seen to be unsafe, because they will probably be for the high jump if it goes wrong. But many of the issues on the railways exist because the safety rules have built up over the years. Driver training used to take two years; it is a little quicker now but not much, and that is for a reason. You are not allowed to use a mobile phone when you are driving for a very good reason, because you lose your concentration. I cannot see how it can really work when Ministers are effectively giving instructions about someone going to drive the train and being responsible for the safety—closing the doors, making sure everybody is all right, and making sure the track is all right, which is really important.
I support my noble friends Lord Monks and Lord Collins, and the noble Lord, Lord Balfe, in saying “Think again”.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, the Committee may remember that, back in 2022, the TUC commissioned legal opinion from Michael Ford KC on the train operating contracts because there was concern about the role of the Government in obstructing a settlement to disputes. Looking at those contracts, his opinion was that the Transport Secretary has
“very extensive powers over what can be agreed between rail operators and unions, and very significant contractual power to direct how industrial disputes are handled. Rail operators are not free to agree terms and conditions without the involvement of the Transport Secretary.”
Before discussing matters, they have to get a mandate from the Transport Secretary, and so on. If you add to that the issue of minimum service levels, and the very real concerns expressed about undue pressure being brought to bear on employers to make use of the powers that the Government propose to take for the Secretary of State, you can see why there is concern. When you look at the power to direct disputes, minimum service levels and so on, apparently the only thing the Government are not willing to do is renationalise the railway system.
It would be wrong to assume that, even in that context, rail employers and unions have conversations, and certainly I am aware that train operating companies are not keen on this legislation. They have real concerns about what it would mean for health and safety on the railways; you could run 20% of services, but you have 100% of passengers wanting to get on. It is not as simple as some might believe.
I really wanted to ask the question: who is asking for this? It does not appear to be the employers. Who wants this to happen? Is it really passengers if it involves a detrimental impact on health and safety? People are already worried about the cuts to maintenance jobs. I do not believe passengers want an unsafe railway; I believe they want constructive industrial relations that can lead to a good-quality rail service. That is what passengers want, and I am afraid the Bill flies in the face of that.
Baroness Randerson (LD)
I share the disappointment of the noble Lord, Lord Collins, that the noble Baroness, Lady Vere, is not here, but I recall that the noble Lord, Lord Callanan, was Transport Minister back in the day, and I am absolutely sure he has perfect recall of those times and will give us very full answers.
In my Second Reading speech, I emphasised the fundamental differences between life and death services, such as fire and rescue and health services, and their contrast with transport services, which are of course economically important but are not life and death. Fundamentally, there is a whole range of transport services that can be substituted one for the other. If I wanted to go from Aberdeen to London, I could take the train, I could go by long-distance bus, I could fly, I could drive myself in a car, or, if I wanted the luxury route, I could take a ship and have a cruise. There is only one way to put out a fire, but there are lots of ways of travelling. Another key difference between the services we have been discussing earlier and transport services is that fire services, health services and education services are funded from our taxes and provided free of charge, whereas the profit motive is alive and well in transport services. Although I acknowledge that some transport services are subsidised, we still pay for the vast majority.
Amendment 9 from the noble Lord, Lord Balfe, is particularly useful in featuring aviation, which is, as he pointed out, overwhelmingly in the private sector, unsubsidised and not appropriate for this Bill. Amendment 10 is also very helpful because it features the complexity of transport services. I have a very specific example as a question for the Government seeking clarification on exactly what they mean by the term “transport”. For example, will they be setting minimum service levels for local bus services? If so, will those minimum service levels be for just those routes that are deemed socially necessary and are therefore subsidised by public money, or will they also include those local routes which are run by the same bus company but are run commercially and not subsidised by public money? The company that provides the services and some local councillors will know the difference, but I reckon there are very few bus passengers who will know the difference. It is that kind of detailed question that the Government need to be able to answer in order to clarify what they mean by “minimum service level”.
Even Amendment 10 would simplify the situation. At Second Reading, I used the example of cleaners going on strike on the railways. The Government are concerned about rail drivers but, if the cleaners go on strike, the toilets do not get cleaned so the trains cannot be run. I am interested in what level of detail the Government intend to specify in their minimum service levels.
Lord Hendy (Lab)
My Lords, I have four questions for the Minister. First, I appreciate that this ground has been covered to a certain extent—at least, what has been covered provokes me to ask this question again—but the noble Lord, Lord Markham, specified that the criterion for implementing or setting a minimum service level in the health service was danger to life and limb. In relation to transport, what is the criterion, or what are the criteria? Once those are established, how is the minimum service level to be computed? Is it a percentage of existing services that will have to be provided, or is some other metric to be used?
The second issue is the boundaries of the transport sector, a point that my noble friend Lord Collins mentioned in passing. The transport sector can be very wide indeed. Obviously, it could cover road transport, freight, passenger buses and so on, but what about parcel transportation, parcel delivery—post delivery? Does it extend to the Post Office? There are a multitude of examples. I would be very grateful if the Minister could tell us what the boundaries are.
The noble Baroness, Lady Randerson, mentioned a strike by cleaners. If the minimum service level for rail passenger transport requires that a certain percentage of trains run, what is the implication for workers other than those who drive the trains? What is the impact on guards, conductors and signallers? If we run half the commuter trains in and out of London, do we not need a full complement of signallers to do it? Are they to be banned from taking strike action altogether by a minimum service level of 100%? What about the ticketing staff and the guards who are in charge of collecting fares and so on? If they go on strike, what are the implications there for a minimum service level? There is also track maintenance. You cannot have 20% of track maintenance. Presumably you need all the track maintenance to keep the lines open. Is it proposed that there would be a 100% minimum service level for track maintenance staff?
The third issue is overtime, which also arose in relation to teachers. Anybody who knows anything about the railways knows that a rail passenger service runs on voluntary overtime—drivers working on the days that they are rostered to have off. Of course, they are paid, unlike the teachers. Nevertheless, it is voluntary. It is beyond their contractual obligation. How will setting a minimum service level—further, how will setting a work notice—avoid imposing an obligation that those who normally provide voluntary overtime must provide it to maintain the minimum service level? Is that what is being proposed? Is that what the Government have in mind, or can the Minister tell us now that there will be no requirement for rail staff to work voluntary overtime?
The fourth issue is one that the Minister has heard me raise before. This Bill clearly constrains and limits the right to strike. There can be no doubt about that. This has implications under the EU-UK Trade and Cooperation Agreement. Articles 386 and 387 state that where the standards of the International Labour Organization—ILO Convention No. 87 and so on—are diminished by one of the parties, either the UK or the EU, and that affects trade, this will be a violation of that agreement.
The Minister may say that none of these sectors will affect trade. That may be dubious in relation to the transport sector but, leaving that aside, even if that does not apply, Article 399 of the trade and co-operation agreement requires the United Kingdom and the countries of the EU to implement those ILO conventions that they have ratified, including ILO Convention No. 87, which protects the right to strike, and requires them to implement the provisions of the European Social Charter, which they have ratified. The United Kingdom has ratified paragraph 4 of Article 6 of the European Social Charter 1961, which specifically provides that workers have the right to take collective action. The Bill unarguably diminishes that right, which will also lead to a violation of the treaty. Can the Minister explain why he thinks that there is no possible violation involved?
Baroness Chakrabarti (Lab)
My Lords, I will try to be brief to help the Minister. In a throwaway remark, I think, at Second Reading, he said, with his usual flair and panache, something like, “I notice that noble Lords opposite are very quick to invoke the nurses but not the railway workers”. But that was not quite the case, because a number of us, myself included, had happily invoked rail workers. I will not talk only about nurses. I have travelled on many trains up and down this country and I hugely admire rail workers, who are not just drivers but the people who look after us on our journeys. I have seen rail workers looking after people in distress on overcrowded trains in the heat and helping the infirm on and off trains. As a woman often travelling alone intercity late at night, I have been very grateful for there being somebody in that carriage, so I am very happy to invoke the rail workers.
The Minister said that as though that meant we were on weaker ground tactically—a bit more embarrassed about rail workers than, for example, health workers. It made me wonder whether this is not the real target of the legislation. If rail workers generally, or the RMT in particular—perhaps because the general secretary has a certain hairstyle—are the real target for this legislation, why can we not have targeted legislation that includes what the criteria are and what the service level agreement is? That would be better legislation.
My noble friends have pointed out the differences in the approaches of the three Ministers that we have heard so far. A life and limb test was offered in the context of healthcare. There was no test offered in the case of education, but some embarrassment and a real desire to never have to invoke this legislation at all. Is this difference of opinion a difference of policy and approach in the different departments or, to be more charitable to the Government, is it because these services are just too different and it is not appropriate for them all to be bundled into a single Bill to give sweeping powers to the indivisible Secretary of State to legislate by fiat?
Either way, whichever is true, it is not appropriate for legislation. I say once more to the Minister: if this is about rail services, there are ways to tackle that, with or without legislation, given the very influential role the Government have in relation to the private companies through contracts and so on. If this is supposed to be general emergency legislation, we need criteria suggesting that this is a proper emergency—not in healthcare but in getting teachers to do mandatory unpaid overtime in other areas. A real problem of inconsistency has been identified in the varying groups, and that is why I do not think they have been repetitive but a voyage of discovery about what may or may not be the real motivation and about the obvious weaknesses in the Bill.
Finally, if I may say so, the question posed by my noble friend Lord Hendy about whether a potential mandatory requirement for people to do voluntary unpaid work will—or might—feature, is within the vires of the Bill.
Lord Callanan (Con)
I thank all noble Lords who have spoken. First, I apologise to the noble Lord, Lord Collins, that he has me responding to this group. I tried to get the Transport Minister to take it but, unfortunately, she had a long-standing personal engagement and was not able to. I hope that he was grateful that I got the Health Minister and the Education Minister to respond to the other groups, because I thought it more appropriate in those circumstances, lest the Committee get bored hearing from me on all the subjects. As the noble Baroness, Lady Randerson, observed, I was for a brief period six years ago a Transport Minister, but in aviation, not in rail. I have trouble recalling all of the things I did six years ago.
Baroness Randerson (LD)
I understand why the Minister is not going to answer the question about local bus services and the bits that are and are not subsidised within one service, and I realise why he cannot give me a full answer now, but will there be a letter from the Government on that issue?
Lord Callanan (Con)
I am happy to give the noble Baroness a letter, but I am not sure there is much doubt about it. Legislation is not dependent on whether the service is subsidised. Some rail services are heavily subsidised, and some are not. It is about providing the level of service to the public. There is no compulsion on employers to use a minimum service level if it has been set in their particular sector. It is probably quite unlikely that we would want to set minimum service levels in local bus services, but that is a decision for the Secretary of State if Parliament chooses to grant him the power.
Lord Collins of Highbury (Lab)
The Minister keeps repeating the mantra that it is up to employers. As I mentioned, the train operators have a unique relationship with the public and the Government. The Government contract them to provide the service, and I referred to the dispute handling clause within that contract. Will the Minister make clear to us whether in the consultation he has mentioned the Government will put pressure on the train operating companies even if they do not want these minimum service levels statutory powers and notices? Will the Government put pressure on them to use them?
Lord Callanan (Con)
I am sorry if the noble Lord thinks I am repeating a mantra. I am answering the questions that are asked of me. People keep asking me the question, so I keep giving the same answer, which is the legal position that there is no legal obligation on employers to utilise a minimum service level. That remains the case. I am sorry if the noble Lord thinks that is a mantra, but that is the legal position. I was asked a question and I am answering it.
Let me answer the other part of the noble Lord’s question. Clearly, in the case of rail, the taxpayer puts in billions of pounds a year to subsidise the service, so my personal view is that the Secretary of State has every right to seek to manage the service properly and effectively. However, the decision to issue a work notice, if the minimum service level applies and is set by Parliament at a particular level, comes down to the employer.
Baroness Chakrabarti (Lab)
Surely the special point about railways is that the Government are contractor as well as legislator. What is being probed by my noble friends is whether it is appropriate for the Government on the one hand to give lovely contracts to rail companies—who are practically profiteers, in my view, and are not passing on the revenue from increased rail fares every year to the workers or the service users—and on the other hand to compensate them for strike action within the contract, and for the Government then to impose the minimum service level agreement, which is effectively on the trade unions. Is that appropriate? Is it ethical? Is it constitutionally something that we want to see the Government of this country doing?
Lord Callanan (Con)
I am not an expert in the rail industry but my understanding is that most of the train operating companies are owned by the taxpayer now through various takeovers, so in my view the Secretary of State has a duty to run the rail services. Taxpayers are very generous in the support they provide to the rail industry, and trade unions sometimes do not appreciate how much it is subsidised. In my view the Secretary of State has a right to intervene on behalf of the travelling public and the taxpayer. The legal position—the noble Lord, Lord Collins, might think it is a mantra—is that there is no legal obligation in the Bill on employers to utilise a minimum service level if one has been set in their area.
Lord Berkeley (Lab)
The Minister’s answers have been interesting but they have concentrated about 90% on the railways, apart from a little dabble into the bus sector with the noble Baroness, Lady Randerson.
Do we take it that Ministers are not really interested in the issues listed in Amendment 10:
“aviation services, airline services, airport services … car delivery services, road haulage services, parcel delivery services”—
even trams—and
“rail engineering ferry and waterway services”?
Are the Government not concerned about them? Are they not even going to try to come up with minimum service arrangements for them? Is it just really about the railway? I think that is what the Minister is saying.
Lord Callanan (Con)
I am sorry if the noble Lord is disappointed. I answered the questions that were asked of me and most of them were about rail services. That is what we have issued the consultation on, which is why I was answering the questions. The noble Baroness, Lady Randerson, asked me about bus services so I answered that question. I do not know how the noble Lord computes that we are somehow uninterested in other sectors. This legislation will specify transport services as an appropriate power for the Secretary of State to designate minimum service levels for, but the only one that we have issued on transport services at the moment is on passenger rail. That does not mean we are not interested in other transport services.
Lord Hendy (Lab)
I asked the Minister about the trade and co-operation agreement. He did not refer to that. I do not know if he wishes to do so or if he thinks it is completely irrelevant.
Lord Callanan (Con)
I do not think it is irrelevant. We stand completely by the trade and co-operation agreement, but I am not sure how the EU would have a problem with minimum service level agreements, given how many other European countries, including Italy, France and Spain, have minimum service level agreements in place in their legislation. I am not sure how it could accuse us of undermining the TCA.
Lord Hendy (Lab)
I will not repeat what I said earlier today, but it is quite clear that the ILO in particular imposes conditions on minimum service levels that this Bill does not comply with. That is the difficulty for the Government.
Lord Collins of Highbury (Lab)
Those countries do not sack workers in these circumstances. We could end up with nurses and teachers being sacked.
We are led to believe that the Bill is a legal provision that will give incredible powers to Secretaries of State across a wide range of industries. Actually, the Minister did not address the question of aviation that the noble Lord, Lord Balfe, and I raised. It makes no sense that that sector, in this broad way, has been put in the Bill. Surely, as my noble friend said, the Transport Strikes (Minimum Service Levels) Bill would have attracted detailed scrutiny about how minimum service levels would operate and how to legislate for them in the railway industry. I have a sneaking suspicion that it was deemed that, “This won’t work; it will be too politically difficult and have too many legal implications. Let’s just give ourselves the power, and then we can determine through the comfort of secondary legislation how we might threaten this and implement it.”
At the end of the day, we will be able to scrutinise other elements of this Bill regarding how the minimum service levels will be set. It has been an interesting exercise today to scrutinise the generality of why these six sectors were picked but also to go through each one separately; we have been able to better understand the range of opinion within the Government and different government departments. I still think that, while the noble Lord, Lord Callanan, can hide behind the legal definition that it will be the responsibility of the employers, everyone out there knows that it will be this Government who will be telling employers to introduce these minimum service levels. The Government will therefore have to take responsibility and be accountable for the mess that they create. I beg leave to withdraw the amendment.
Lord Fox
“(5) Levels of service set by regulations under subsection (1) may not exceed the lowest actual level of service for the relevant service recorded on any day of the 12 months before the regulations are laid.(6) Before making regulations under subsection (1) for the relevant service, the Secretary of State must lay before each House of Parliament a report showing that the condition in subsection (5) is met.”Member’s explanatory statement
This amendment would prevent the Secretary of State from specifying minimum service levels that were higher than the actual level of service recorded by the relevant service in the year before the new regulations are laid.
Lord Fox (LD)
My Lords, I will also speak in support of Amendment 18, in the names of the noble Lords, Lord Patel and Lord Kakkar. In my view, this is a group of amendments that sets out one of the key issues of this Bill. Both amendments seek to conflate the minimum service level—as introduced by this Bill—with the actual non-strike base service levels that are being achieved. In this case, we will focus on the NHS, but actually, in my case, not exclusively so. This is something that your Lordships have come back to on a number of occasions, both in Committee and during Second Reading, and it was previewed by the Minister in a response to the noble Baroness, Lady Fox, when she was here.
Lord Patel (CB)
My Lords, I will speak to my Amendment 18. Much of what I have to say will resonate with what the right reverend Prelate the Bishop of London and the noble Baroness, Lady O’Grady of Upper Holloway, had to say. I am also grateful to my noble friend Lord Kakkar for adding his name to it. My amendment seeks to explore the logic of defining minimum staff service levels in healthcare, without first having a benchmark of what is an appropriate level of staffing that fulfils the needs of patient care and patient safety.
While this Bill is not about rights and wrongs of strike action, I will express my personal view that, as a doctor, I would never have withheld my service, no matter the circumstances. This Bill grants the Secretary of State powers to make minimum service regulations during a strike across several sectors, including health services. I will speak only regarding health services, as “health services” are not defined in the Bill, which makes the legislation very broad in scope. “Minimum service levels” are also not defined in the Bill but will be defined by the Business Secretary after consultation.
The focus of my amendment is patient safety. Legislation that imposes minimum service levels inevitably means a reduced number of staff expected to provide the same level of care. How can that not compromise patient safety? We seem to have forgotten the lessons from the Francis report, the Kirkup report and the Ockenden review—to mention some—all of which commented on patient harm caused by lack of staff. We are all aware that the health and care service is currently under immense pressure, as has been mentioned several times. There are unprecedented levels of workforce shortfall—around 10% of the total workforce—leading to 130,000 vacancies with over 50,000 vacancies in nursing alone. Staff are exhausted, morale is low and employers are having to pay out huge sums of money in agency fees.
My amendment prevents the Government introducing minimum service levels for health, unless they have, via primary legislation, first set out the appropriate legally enforceable staffing levels for health services on non-strike days. Without this, how can the service or, importantly, the patients know that care with reduced services at a minimum level is safe and will not result in patient harm? Daily, patient safety is compromised as a result of staffing problems. The NHS should be safely staffed every day of the week, as has been mentioned.
Is it even possible that minimum levels of service prescribed at national level could be universally applied? There are huge variations in the intensity and complexity of healthcare provided from one health region to another. Both Scotland and Wales have a legal requirement for services to be safely staffed. Why are the Government reluctant to legislate in a similar way in England? Health professional organisations, including the British Medical Association, the Royal College of Nursing and the Royal College of Midwives, have repeatedly called for this. We have debated this several times in this Chamber. Imposing minimum service levels, defined by the Secretary of State for Business, may end up having an effect that the Government do not want—being forced to legislate by courts for appropriate levels of staffing in healthcare.
While minimum service levels can be defined in some areas of healthcare, it is impractical to do it in clinical areas such as maternity, intensive care, A&E, acute surgical and medical care, to name but a few. In the debate on the group beginning with Amendment 3, the noble Lord, Lord Markham, suggested that health services in this Bill will be interpreted as life and limb services. If that is the case, it needs to be redefined in the Bill by a government amendment. In my 40 years of practice, life and limb situations meant all hands on deck; there was no such thing as a minimum level of service.
What assessment have the Government made of the effect that work notices will have on employer-staff relationships? Who would be blamed if there is a patient safety issue? There are no details in the Bill on what would happen if minimum service levels were not met on non-strike days. I have no doubt that the noble Lord, Lord Kakkar, will speak in greater details about the unintended consequences of this. I hope the Minister will comment on what assessment the Government have made of possible legal consequences if services are staffed below the minimum prescribed level.
I fear that, in a rush to get the legislation through, there has been no thought given to how minimum service levels can be defined in clinical risk areas in the absence of first legislating on what is an appropriate staffing level and the risks to patient safety. As I mentioned, the Minister on the previous group, the noble Lord, Lord Callanan, already referred to the minimum service levels as “life and limb”. I hope the Government give further thought to appropriate safe staffing levels on non-strike days before bringing in any minimum service levels in clinical areas. I look forward to the Minister’s comments on the issues I have raised.
Lord Kakkar (CB)
My Lords, I support Amendment 18 in the name of my noble friend Lord Patel. I remind noble Lords of my registered interests; in particular, that I am a practising clinician. The amendment, and my noble friend’s introduction to it, clearly lay out an important point about the consequences with regard to practice on non-strike days if a minimum level of staffing is defined for clinical areas on strike days. It is possible that, on non-strike days, staffing levels will fall below the minimum defined for a strike day. Under those circumstances, would it be appropriate for the healthcare organisation in question to continue to deliver service in that clinical area where the minimum service or staffing level defined for a strike day has been breached?
What would be the consequences for a clinician—a regulated healthcare professional—offering to work and participate in the delivery of clinical care in a clinical environment whose staffing would, on a strike day, be considered to have fallen below a safe level? What would be the consequence for a regulated healthcare organisation of continuing to promote the delivery of care, on a non-strike day, in an area that it would consider unsafe on a strike day if the staffing level were below that defined? For instance, what view have the professional and system regulators taken of this potential situation?
Would there then be a greater risk for potential litigation associated with the delivery of care in a clinical area that had failed to provide, on a non-strike day, staffing levels that were considered the minimum level to be provided on a strike day? Would that have a chilling effect on the capacity or willingness of clinicians and healthcare professionals to participate in the delivery of care under those circumstances? These are important issues that need to be explored in some detail to ensure that they are not unintended consequences of proceeding with an approach that secures patient safety on strike days but, unfortunately, fails to have determined that appropriate protection of patient safety on non-strike days.
Baroness Watkins of Tavistock (CB)
My Lords, I support the amendment in the names of my noble friends Lord Patel and Lord Kakkar, and I agree with everything they said. I return to the issue of life and limb. We need to recognise that we have people in hospitals and care homes who, if they did not receive compassionate care, would be left in unclean beds, would not be fed and would not receive what we think of as ordinary, everyday care. Therefore, the whole issue of what minimum levels should be needs to be thought about really carefully. It needs to be thought about outside the opportunities of strikes and in terms of ordinary, everyday care.
I am worried that, without the amendment proposed, it is possible that we would have safer, or better, care on strike days than on non-strike days. I am also worried that, unless we tackle the workforce shortage, which has driven staff to their current level of discontent in health and care, we will continue to have problems. This is not just about people striking for an increase in salary; it is about people’s real concern about being unable to deliver the service they wish to deliver.
The Lord Bishop of London
My Lords, I shall speak to Amendment 18 in the names of the noble Lords, Lord Patel and Lord Kakkar, and add my voice to many of the points already raised. I thank the Minister for being much more specific around health. I hope that we can define it much more clearly, rather than having that very broad category, as well as the issue around life and limb.
I remind the Government that, in this Chamber, they have resisted introducing legislation for minimum staffing levels on a number of occasions. It seems incredible that they now want to put in levels of minimum service, which clearly require minimum staffing levels, but are willing to do it only on strike days.
As I indicated earlier, this amendment goes to the heart of one of the key issues with the Bill; namely, that people in the health service who strike do so partly because safe staffing levels are not in place on non-strike days. We have already heard that the healthcare system is under huge pressure, trying to provide quality care with fewer staff, and there are workforce problems. The most recent statistic I have shows that there are 124,000 vacancies across the NHS—that is 13,000 more than this time last year. The Royal College of Nursing published a survey in May 2022 showing that only 25% of shifts have the planned number of registered nurses and 83% of respondents said that there were not enough nursing staff to meet all patient needs safely and effectively on their most recent shift.
Staff on non-strike days are thinly stretched and cannot provide the level of care that they would want to, which puts huge pressure on their health and well-being. The distress that they experience is causing an increase in illness to them. Reporting on the past year, the Healthcare Safety Investigation Branch noted that the additional pressure that staff were under was causing sickness. As a new student nurse put it, “I no longer want the career as it is. The reality feels as though I must sacrifice my own health and well-being for less than satisfactory pay.”
The notion that the Government could legislate to require minimum service levels in healthcare settings, which are already committed to safe strikes, while there is a lack of investment and workforce planning—which is the reason for the action—is unfathomable. I would welcome the Government legislating to ensure appropriate staffing levels on non-strike days that are greater than the strike day cover. That would be welcomed by nurses, because it would mean more resources and more workforce planning than the health service has seen for years. It would also resolve one of the reasons why nurses are taking strike action. I have spoken about trust, as have a number of noble Lords. Accepting this amendment would go some way towards to rebuilding the trust that has been eroded, and will be eroded further by this Bill.
Amendment 13 in the name of the noble Lord, Lord Fox, seeks to make a similar point but through a different route. Along with my right reverend friend the Bishop of Manchester, who is unable to be here, I express my support for that amendment as well.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support both the amendments. I have sat in my office all afternoon listening to this debate. At times, it was difficult to concentrate, simply because there was a degree of repetition. I do not blame noble Lords for that; I blame the Government—as usual. At least I got lots of old paperwork sorted, which was real progress for me.
Despite trade unions sounding the alarm on unsafe levels of staffing in public services such as hospitals for quite some time, the Government refuse to implement legislation ensuring safe levels of staffing on any day other than a day when workers have chosen to withhold their labour by going on strike.
These amendments lay bare the ridiculousness of the Bill. Under this legislation, the Government will force workers to go to work against their will, with the perverse outcome being that strike days could see services with a higher number of staff than on non-strike days. It sounds like slavery to me. Is it not slavery when you force people to work against their will?
The Government propose that this is done by employers writing out a list of names of workers who must turn up and work on a strike day. Unlike on a normal work rota, workers will not be allowed to call in sick, take parental leave, take bereavement leave or even be in hospital having had a major condition of some sort. This legislation drags the workers in and forces them into a temporary state of servitude. That goes against every single principle of common law, contract law and employment rights in this country.
I have a cunning plan which would save the Government on this issue; it would just need a few tweaks in the Bill. If the Government want to make it illegal to go below minimum staffing levels in hospitals and the ambulance service, why do we not do that 24/7 and 365 days a year but, instead of the unions getting fined, we fine the CEOs and Government Ministers? That way, if you want someone to be responsible for old people waiting eight hours for an ambulance, you put the legal responsibility on the people at the top, not at the bottom. This seems eminently sensible and much more practical. Let us have laws that apply to the people in charge rather than target the overstretched staff on the front line, who are struggling for better pay and conditions. The Government will not be able to deliver either my idea or the Bill as it stands. In fact, this Government is too incompetent to deliver a pizza, so why should they be able to deliver a Bill such as this one?
If the next Government have any sort of involvement with the Green Party, they should know that we have committed to repealing this legislation and all other anti-trade union legislation passed since the Thatcher Government—that will be quite an exercise. We can create safe, well-run public services by working together with workers and unions, not by using authoritarian laws to strong-arm them into the workplace no matter how badly their working conditions get. I hope that the Government see sense on this, but I can tell from the looks of noble Lords on the Front Bench that it is not going to work.
Baroness Noakes (Con)
My Lords, it is quite difficult to follow that speech. I do not think that anybody would want to encourage the dissipation of the Green Party in any Government, so the noble Baroness’s ideas will not go very far.
I will not talk about the NHS, which all noble Lords have spoken about so far; I will address only Amendment 13 tabled by the noble Lord, Lord Fox, but not in the context of the NHS, to which he addressed all his remarks.
Baroness Noakes (Con)
The amendment says:
“Levels of service set by regulations … may not exceed the lowest actual level of service … on any day”
in the previous 12 months. Let us take the example of train services. If we have the system closed because there is a lot of snow—which, I gather, there is at the moment in the north of England—the answer under the noble Lord’s amendment would be that the minimum level of service was no service. If one of the days in the previous 12 months had been a strike day, the answer might be no service. If any of the days in the previous 12 months were on a weekend or a bank holiday, which of course they would be, the answer would always be a very low level of service, which would not necessarily meet a minimum level of service for the workday population trying to get to work. I suggest to the noble Lord, Lord Fox, that his amendment is not correctly drawn.
Lord Allan of Hallam (LD)
My Lords, when this subject first came up in the Bill—the idea of talking about minimum service levels around services for 365 days a year—I initially thought that there was a cheeky and a serious aspect to it. The cheeky aspect is that it is an opportunity to make a political response to the Government’s political legislation, and to talk about service levels all year round and the failings we have seen since this party has been in power as our public services have worsened.
The serious aspect, which in a sense is more interesting and which has come out in the debate today, is around the definition of “minimum”. The noble Baroness, Lady Noakes, keeps reminding us to think about what the public see and perceive. There are two quite different ways in which to interpret “minimum”. One version is “comfortable”, when services are at a reasonable and sustainable level and are effective. In the context of healthcare, that would mean that I can see a GP when I need to, or get hold of an NHS dentist. If I am a woman who needs hormone replacement therapy, or if I have a child who needs antibiotics, I can get the drugs. When I call an ambulance, one comes in a reasonable period of time—and when I go to A&E, I can get through it and into a bed. When I need to be discharged, there is a care home for me to go to. Of all those things, I think most members of the public would say that that is a minimum. It is not the gold-standard service—it is the baseline that they expect.
Lord Collins of Highbury (Lab)
My Lords, this has been an excellent debate. Both noble Lords on the Cross Benches have highlighted something that we all knew would happen—that this debate would beg a question about what we can expect from our public services. What is the minimum level of service?
As we have heard, a common theme—not just in debate on this Bill—is about how people who work in the public service are genuinely concerned about its future. That is not just in the health service, by the way; there are lots of examples of people’s expectations. To be cynical, people might look at the minimum level of service set for strike days and think, “I’ll have that”, in certain circumstances. But if you speak to fire brigade members and other public sector workers, they will all give you the same message: there is a lack of investment, and they are worried about safety and their communities. It is not simply about pay and conditions—but when it is about pay and conditions, it is also about the shortage of workers.
In a commercial outfit, if you were not able to recruit, I know what you would do: put the pay up, improve the conditions, advertise it. That is not what we do in the public sector. We have seen cut after cut. I have been reading the BMA brief, and of course the Health and Social Care Committee has made the same point in terms of staffing. It describes it as “the greatest workforce crisis” facing the NHS and social care. There is persistent understaffing that poses a serious risk to staff and patient safety.
That is what the public will note when they hear these debates. They will not hear the Health Minister’s comments about life and limb; what they will hear is why, when someone has a heart attack, they have to wait four hours for an ambulance or, when they are in accident and emergency, they are on a trolley for hours and hours. That is what this debate is about, unfortunately. People want to see what the genuine priorities of this Government are. They will not be fooled by this narrative that is going to be developed about whose side you are on—they will not be fooled. They want proper public services and I think the noble Lords are absolutely right to say, if you are going to talk about minimum service levels, talk about it on non-strike days: how do you improve it? That is what people will be focused on. I hope the Ministers will listen.
Lord Callanan (Con)
My Lords, it is my pleasure to reply on this group containing Amendments 13 and 18, grouped together as they both relate to levels of service on non-strike days. The Government do not support these amendments on the basis that they add unnecessary limitations to and delays in establishing the minimum service levels. Amendment 13 seeks to cap minimum service levels to the lowest service levels recorded for a relevant service during the 12 months before regulations are laid. It would require the Secretary of State to lay a report in both Houses before introducing regulations to evidence this condition.
Before responding generally on that amendment, let me first answer the points made by the noble Lord, Lord Fox, regarding his correspondence with my noble friend Lord Sharpe. The noble Lord is correct to point out that one option within the consultation Minimum Service Levels for Fire and Rescue Services looks at staffing levels being geared to respond to specific risks, including a minimum standard to respond to a major incident. However, this is just one of five options outlined in the consultation, and I do not consider that my noble friend has prejudged that consultation. I know that he is very willing to engage further on minimum service levels for fire and rescue services with the noble Lord if that would be helpful.
Before I turn more directly to the amendments, I will take an intervention from the noble Baroness, Lady O’Grady.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, just on fire and rescue services, does the Minister recognise that at the root of many of the disputes is a concern about what the level of service and staffing is on every other day of the year? Take the fire service, for example: since 2010, it has lost 12,000 posts, nearly 20%; 50 fire stations have been closed. Those firefighters really care about that. Further, and very briefly, my concern about the reference to Grenfell is because I spoke to firefighters after Grenfell. They were brave, they were dedicated and in some cases they were broken by that experience. They put their lives on the line and they saw terrible things. Can the Minister understand how insulting it is to use that as an example in an initiative to weaken what we regard as fundamental workers’ rights? If that is a measure of the Government’s sensitivity in dealing with industrial relations, I really advise the Government that they are better off staying out of it, because it will make matters so much worse.
Lord Callanan (Con)
I readily concede to the noble Baroness that many public services are under pressure, despite the record sums that we are spending on them. Of course, there are pressures on many public services; I entirely accept that. I do not know the details of the fire and rescue services consultation, but I know that the noble Lord, Lord Sharpe, is very happy to continue to engage on that issue.
Baroness Jones of Moulsecoomb (GP)
I am so sick of that line about the record amounts being spent on our public services when a lot of that money goes to private companies, which employ nurses and doctors because the Government have allowed our public services to be so understaffed. Please stop misrepresenting the situation.
Lord Callanan (Con)
The noble Baroness is getting off the debate. I am very happy to debate these points with her another time, but I think I will stick to the amendments.
Lord Callanan
It is the fact that we are spending record amounts on these services.
Lord Callanan (Con)
I appreciate that the noble Baroness has a different opinion on how the money is spent, and with whom. That is an unarguable fact. Perhaps we can save the debate for another occasion when we are not talking about this legislation.
Minimising what the minimum service level could be sets a significant legal restriction on the ability to achieve this balance and would likely result in the public continuing to suffer the disproportionate impacts that strikes can have. Let me again thank my noble friend Baroness Noakes for her contribution; she eloquently highlighted the potential perverse consequence of Amendment 13, and I totally agree with my noble friend.
The Government value employers, employees, trade unions and their members, and members of the public, who pay for many of these services, being able to participate in the process of setting minimum service levels through the consultations that are required by the legislation. This amendment would reduce the importance of that process, and in turn reduce the influence that these important groups have.
The noble Baroness, Lady Chakrabarti, has left us, but it remains the case that any regulations that set minimum service levels in specified services will need to be compatible with the European Convention on Human Rights, including Article 11. Should any regulations go beyond what is necessary to achieve the aims of setting minimum service levels, which resulted in a breach of the ECHR, a court would be able to grant such remedy as it considers just and appropriate, following a judicial review. Levels of staffing on non-strike days will no doubt be one of the factors that they may wish to consider. I hope that this reassures noble Lords that we will act in a way that is proportionate, and so that there are appropriate routes for stakeholders to challenge any MSLs that they believe have been set at too high a level.
Amendment 18 deals specifically with health services. It seeks to delay any implementation of minimum service levels in health services on strike days by first requiring the Government to establish appropriate staffing levels on non-strike days through primary legislation. As always, it was a pleasure for me and the noble Lord, Lord Markham, to meet yesterday with the noble Lords, Lord Patel and Lord Kakkar, to discuss the amendment. I am grateful that both noble Lords took the time to explain their concerns. I bow to their superior knowledge of and service to the healthcare system, and for their contribution to the debate which, as ever, was constructive. Many of the points raised by the noble Lord, Lord Patel, were discussed in the earlier grouping; I know that the noble Lord was listening so I will not repeat all the points made by the noble Lord, Lord Markham, but I am very happy to have further discussions with both noble Lords if they think there are outstanding issues that we have not sufficiently covered.
I would say that the responsibility for issuing work notices is with the employer, rather than the Secretary of State, precisely because individual employers know better what level of staffing is required to achieve minimum service levels. The noble Lord, Lord Collins, will be irritated but I also repeat and emphasise the point that there is no statutory duty in the Bill on an employer to issue a work notice.
As we discussed, however, strike action in some areas of health services can put lives at risk or cause serious harm to patients. In many cases, it has the potential for far-reaching consequences for members of the public who are not directly involved in the dispute. As the consultation for applying minimum service levels in the ambulance services sets out, the aim is to protect life and health, and it is only right that the implementation of minimum service levels, where required, is not unnecessarily delayed.
I will pick up the point on non-strike days. Responsibility for staffing levels, in the Government’s view, should remain with clinical and other leaders at a local level, responding to local needs and supported by guidelines and national and professional bodies and overseen and regulated in England by the Care Quality Commission. People have been unable to access work, healthcare and education and been left worrying whether an ambulance would even be there when they needed one. Businesses have also been severely impacted. It is the Government’s view that these amendments would only delay or disrupt our ability to act on the disproportionate impacts that strikes can have on the public. Therefore, I hope the noble Lord will be able to withdraw Amendment 13.
Lord Fox (LD)
My Lords, first, I thank the Minister for his response on fire and rescue, and I suggest to the noble Baroness, Lady O’Grady, that she and I arrange to meet the noble Lord, Lord Sharpe, to take this further. She better articulated the points that I tried to make on Second Reading on the inappropriate choice of these examples in the consultation. I continue to believe that they are inappropriate, and she confirmed that in my mind.
I am always pleased to take drafting notes from the noble Baroness, Lady Noakes. She has infinitely more experience in parliamentary drafting, and if she could perhaps jot some amendments to my amendment, I would be happy to use those on Report. I was, however, delighted that that was the point she decided to upbraid me on; she did not upbraid me on any of the actual arguments I made. I will notch that as an argument won if all she can call me on is my parliamentary draftsmanship.
I move on to the substantive. It is awful when someone references their own Second Reading speech, which I am now going to do. I welcomed the Government introducing the concept of service levels, because the Government have brought this on themselves. They have opened this Pandora’s box, so they cannot be surprised that your Lordships are now pushing back on what the day-to-day, non-strike service levels in all the services mentioned in the Bill will be. It is the Government’s doing that we are now having this debate. I am afraid I cannot speak without having consulted the noble Lords opposite, but I did not think the Minister’s response on non-strike-day service was even attempted, never mind adequate. There is more work to do in this area, and I hope we can debate this further.
The point that the noble Lord, Lord Kakkar, made—which had been brought up by my noble friend and the noble Baroness, Lady Chakrabarti—about legal jeopardy and the Government or employers opening themselves up to legal redress from potential patients, or other people in other services, is very clear. Again, I do not think that the Government have addressed that issue properly. As soon as there are marks in the sand, there will be lawyers able to exploit those marks on behalf of their clients. We already know how much it is costing the National Health Service, but it will cost the National Health Service a great deal more. It is already costing the National Health Service billions of pounds.
It is clear to me that the Minister did not even address, really, the key issue of this group, which is where the minimum service level approaches or indeed reaches 100% of the workforce in a particular service. With respect to the noble Baroness, Lady Noakes, I made the point with respect to the fire service and signal services as well. It is clear to me, and the Minister has confirmed, that the consultation level could result in 100% of a workforce being required in a work notice, in name, to come to work to meet the minimum service level as delivered with very little consultation and virtually no parliamentary approval. That is, to all intents and purposes, banning strikes. That said—and I am sure we will come back to it—I beg leave to withdraw Amendment 13.