Thursday 23rd March 2023
(1 year, 7 months ago)
Lords ChamberStrikes (Minimum Service Levels) Act 2023 View all Strikes (Minimum Service Levels) Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 97-II Second marshalled list for Committee - (21 Mar 2023)
Lord Hendy
“(5) Regulations may not prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action; or create an offence.”Member’s explanatory statement
This amendment is intended to ensure that the regulations do not breach Article 11 of the European Convention on Human Rights by permitting the penalisation of individuals for exercising their right to strike.
Lord Hendy (Lab)
My Lords, I shall speak to three of the amendments in this group; they bring into discussion matters of international legal obligation. Amendment 18A deals with protection against the excessive use of the regulations.
I ought to begin by reiterating something the noble Lord, Lord Allan, mentioned earlier, which is that we are dealing here with fundamental human rights. The right to strike is a fundamental human right. It has been held to be a right protected by Article 11 of the European convention in a series of cases, beginning with Unison v the United Kingdom. It is protected not only by Article 11 but by many other international treaties ratified by the UK. In fact, it is protected in many national constitutions; more than 80 protect the right to strike. Of course, it is not unlimited and there are always restrictions in one way or another, but its fundamental nature is that it is a human right.
So too is the right to bargain collectively, which was held by the European Court of Human Rights to be an essential element of Article 11 in the case Demir and Baykara v Turkey. The significance of that is that the right to strike is fundamental to the right to bargain collectively—in other words, to the protection of workers’ living standards. As was said 70 or so years ago, collective bargaining without the right to strike is effectively collective begging.
The right to strike has been lawful in the UK since at least the Trade Disputes Act 1906. There is no further justification, after the many Acts restricting that right since 1980, for yet further restrictions or limitations on the capacity of workers to defend their living standards. In particular, the European Court of Human Rights guarantees through Article 11 that strikers shall not be penalised for taking part in a strike. There are many cases to that effect, notably Danilenkov v Russia and Ognevenko V Russia.
The purpose of my Amendment 18A, given the breadth of the power to make regulations in this Bill, is to clarify that the Government will not use that power to impose an obligation not to exercise the right to strike or to penalise strikers specifically by creating a criminal offence. If that is what the Government intend or merely contemplate, the noble Lord will no doubt say so. If that is not what the Government intend, then Amendment 18A will cause no inconvenience.
Baroness Chakrabarti (Lab)
My Lords, it is a pleasure to follow my noble friend Lord Hendy and to see the noble Lord, Lord Soames, in his place, because this group is about international law and a settlement that his grandfather had a great role in promoting, not just in this country or Europe but in the post-war world.
My noble friend Lord Hendy’s suite of amendments begins with his attempt to ensure that regulations would comply with the European Convention on Human Rights. I hope that the Minister will have no problem at all with that, because, in relation to this Bill—not some others in the current programme—the Government’s position is that the European convention is to be complied with. My noble friend’s Amendment 18A gets a little more specific in ensuring that Article 11 is complied with and people are not penalised for their trade union participation. It would give a more specific effect to what is clearly the Minister’s intention by giving a Section 19(1)(a) statement of compatibility under the Human Rights Act. I am grateful for that.
The Government’s current position and approach to international law is complex, if I can put it like that. Sometimes we are told that Bills definitely comply with this or that requirement of international law and sometimes we are told that the Government do not care about the ECHR and might even leave it if the Strasbourg court does not like us, and so on. In relation to this Bill, everything I have heard so far here, at Second Reading and in Committee, suggests that the Government want to comply not just with the European convention via our Human Rights Act but with international law more generally. I welcome that. However, the statement in the Bill, as required by Section 19 of the Human Rights Act, deals only with the European convention and, as we have heard from my noble friend—who is an expert; perhaps the leading expert there has ever been in labour law in this country—there are other equally important international agreements and conventions, not least the ILO, which is particularly important in this area of employees’ rights and trade union rights. If, as I suspect, the Minister is going to say that of course the Government want to comply with those conventions, he will have no problem at all with putting that commitment in the Bill.
Why should he agree to do this? Because it will mean that, assuming that this legislation passes, future Minister who have not actually taken the advice that he has, or made the promises he has made and the commitment in the Bill, will be bound, when they make regulations—which are easy to make by ministerial fiat—to the commitment that he has made in relation to human rights. It is also important to put these commitments in the Bill because it will make our courts the ultimate referees of whether future Ministers, when exercising these broad regulatory powers, are actually complying or not.
Lord Woodley (Lab)
My Lords, I support this group of amendments. I first apologise for my non-attendance at Second Reading, having had a hospital appointment that I could not get out of, following my serious illness last year. Had I been there, I would have said that the Bill is vindictive, unnecessary and undemocratic, as well as unworkable and unsafe, and likely to be unlawful As it stands, it represents a grave threat to trade unionists, trade unions and trade unionism, and the fundamental right to collective action, as my noble friend Lord Hendy said.
Undermining the right to strike in the way the Bill does, and giving employers the power to compel striking workers to cross their own picket lines, would poison industrial relations across vast sectors of the economy. As my noble friends Lord Collins and Lord Cashman said earlier, the point was made by the Government’s own impact assessment on the Bill’s predecessor, the aborted transport strikes Bill, which admitted that industrial action short of strike, such as overtime bans and work to rule, would rapidly increase as a result. I am sure that none of us would want to see that happen.
My noble friends Lord Hendy and Lady Chakrabarti have made the main arguments for these amendments, but I would like to say a few words about the importance of keeping to our international obligations and our international standing. This is especially true as we were founding members of the International Labour Organization, a cornerstone of building a better world for working people. Many countries still look to the UK as an exemplar in human rights. It is also important that, in the light of Brexit, we are not seen to be on a race to the bottom, undermining workers’ rights in other countries, particularly as we have relationships and supply chains across Europe and beyond.
The Minister is well aware that, as part of the trade and co-operation agreement with the EU, we made commitments to maintaining our current standards of workers’ rights—the non-regression clause mentioned earlier—and commitments to fundamental rights at work that are grounded in the ILO core conventions, including ILO Convention No. 87, the Convention on the Freedom of Association and Protection of the Right to Organise, which the Bill clearly violates.
The report from the Joint Committee on Human Rights also cast numerous doubts over the Bill’s compliance with Article 11 of the European Convention on Human Rights, including the difficulty for trade unions to foresee its consequences, its insufficient protection against arbitrary interference with Article 11 rights, and the Government’s failure to provide evidence establishing a “pressing social need” for most of these changes.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, I will speak to Amendment 32B in my name and that of my noble friend Lord Collins, and to support my noble friend Lord Hendy’s amendments too. Amendment 32B is all about ensuring that regulations made as a result of the Bill’s provisions do not conflict with protections in the EU-UK Trade and Cooperation Agreement. There is a real concern about this; we have already heard several times that the impact assessment received a red rating from the RPC. Looking at that impact assessment, there is a question about whether the Bill would have an impact on trade and investment, and the answer given by the Government is no. That concerns many of us, as we know that the EU-UK TCA is our most important trade agreement with our closest trading partner.
I declare my interests in that, when the TCA was being negotiated, I was the general secretary of the TUC and a member of the steering committee of the European TUC. We had some very simple priorities on jobs, protecting workers’ rights and protecting the Good Friday agreement, so we were very keen to secure what we called a level-playing-field clause in that trading agreement to ensure that workers’ rights, conditions and jobs could not be undercut. That was really important to us; we worked really hard on it in the four years it took to secure the agreement. I met Monsieur Barnier a number of times, as well as David Frost—now the noble Lord, Lord Frost—and parliamentarians from the EU and the UK. Together, we campaigned for that clause to prevent unfair competition on the back of lowering labour standards. That was not an academic concern; there were real concerns that, in some quarters, the Brexit dividend was discussed as being one that would involve worsening workers’ rights, especially in respect of the working time directive, which put safe limits on working hours, paid holidays, rest breaks and equal treatment for agency and temporary workers.
At that time, we were also very conscious that several members of the Cabinet were co-authors of that now-infamous pamphlet Britannia Unchained, which specifically described opportunities to worsen workers’ rights. That level-playing-field clause is vital: it provides for non-regression and for no weakening of what are described by the ILO as “fundamental rights at work”, including
“health and safety standards … fair working conditions … information and consultation rights”
and protections for the “restructuring of undertakings”. If the UK breaks that commitment, it would have an impact on trade and investment.
The EU can impose temporary remedies, including trade sanctions. Of course—I hope the Minister is aware—the ETUC, of which the TUC remains a member, can raise a complaint directly with the European Commission. That is why the recent European Commission report saying that it was monitoring very closely developments in respect of fundamental workers’ rights, including the right to withdraw labour, should be taken so seriously. It is not covered in the impact assessment, as I have said, but I think that the Minister at one point said—correct me if I am wrong—that he would consider looking at whether that impact assessment needed to be revised. If he is willing to consider that, this is a key area that is vital for trade, investment and jobs, and it would be worth looking at it again. I very much hope that he will consider this amendment in that light.
Lord Fox (LD)
My Lords, I fully expect the Minister to stand up and tell us that none of these amendments, which have been put so well by noble Lords, is necessary. I expect him to say that there is no possibility of the Bill, once it becomes an Act, breaking or impairing our relationship with the international organisations that noble Lords have mentioned. I wonder how he will be able to say that, given the nature of the Bill.
We come back to its skeletal nature and the answer which nobody seems to know to the question “What is a minimum service level?” Until we know, we do not know whether the Bill breaks any agreements that we have with organisations in this country or around the world. I refer your Lordships to our previous debate in Committee, in which we discussed correspondence with the noble Lord, Lord Sharpe, in which he represented the issues around the fire and rescue services. I remind noble Lords that, after I prompted him on why the consultation had raised the issue of the Grenfell Tower fire and the Manchester Arena bombing, the Minister—the noble Lord, Lord Callanan—said that one thing the consultation sought to probe was that the minimum service level would include the ability to cope with issues on that scale. He did not disagree with me when I came back and said that that implied that 100% of the fire and rescue services in an area would need to have been named in the work order under a minimum service level. In effect, that would ban striking.
In the event of such a minimum service level, that calls into question our relationships with the ILO, the EU under the TCA and others, because it is a de facto ban on striking. It may or may not upset those relationships, but I want the Minister to be able to say what minimum service level is being modelled when he tells us that we do not need to worry.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, I sometimes wonder when I listen to the noble Lord, Lord Fox, whether I need to bother replying to these debates, because he has written my speeches before I get up. For the benefit of the House, I will go through this anyway.
Amendments 18A, 18B, 32B and 36C all relate to the UK’s international obligations. Before I deal with the amendments in detail, it is worth reiterating, as I have previously and as we debated last time round with the noble Baroness, Lady Chakrabarti, that the Government firmly believe that the Bill is compatible with our convention rights and complies with all international conventions that the UK is signed up to. I signed a statement to that effect.
Amendment 18A in the name of the noble Lord, Lord Hendy, looks to ensure that the Bill does not prevent people from taking strike action and cannot be used to create an offence. I oppose this amendment because its effect would be to prevent any minimum service levels from being implemented at all. He will understand my reservations, given how the Bill is drafted in respect of the operation of work notices and where an employee would lose their automatic protection from unfair dismissal for industrial action if they participated in a strike while being named on a work notice. To be clear, our Bill does not prohibit strikes or other industrial action, but it does enable employers to continue to deliver a minimum service level to their users and stakeholders during and notwithstanding that action.
The Bill is about balancing the ability to strike with the rights and freedoms of others. Preventing minimum service levels being implemented does not strike a balance; it would merely maintain the current disproportionate impacts that strikes can have on the public—although I expect that that is a cause of legitimate disagreement between us.
Amendment 18B would ensure that the regulations did not compromise our obligations under the trade and co-operation agreement. However, given the reiteration I made earlier, we believe that this amendment is duplicative and unnecessary. The Government remain committed to our international obligation and respect the process of the respective governing bodies in providing any rulings that are required concerning compliance. I recognise that the noble Lord, Lord Hendy, has a desire for relevant international conventions and treaties, and their associated governing bodies, to have a greater role in respect to minimum service levels in Great Britain. But my argument here is that incorporating decisions by supervisory committees into domestic primary legislation, as this amendment seeks to do, goes way too far.
Amendment 32B, tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, seeks similarly to prevent minimum service regulations being made where they could be said to be within scope of the trade and co-operation agreement and other international obligations. As I stated at the outset, the Government firmly believe that we are entitled to bring forward this legislation—many other European countries already have similar legislation—which I remain satisfied is compatible with all the international conventions the UK is signed up to. The noble Baroness will, of course, be aware that there are existing mechanisms for monitoring adherence to the trade and co-operation agreement—if indeed there are concerns from EU member states or the European Commission, although I do not believe there will be.
In any case, I am surprised if anybody thinks that ensuring that the public are able to access some level of service in key sectors, including emergency services, during strike action goes to the heart of the TCA, not least because many EU member states already have minimum service level arrangements in place. Indeed, in some of the services we have mentioned, some member states ban strike action completely in those areas. As drafted—and perhaps not intentionally—this amendment would prevent minimum service levels regulations being made at all, which, given that is the purpose of the Bill, we clearly cannot accept.
Finally, on Amendment 36C from the noble Lord, Lord Hendy, and to respond to the points the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Woodley, made, as I have stated previously, the Government firmly believe that the Bill is compliant with convention rights and international conventions. The Bill also enables regulations to be made in a way that is compliant with the convention rights, and on making those regulations, Secretaries of State will need to carefully consider the relevant articles of the ECHR, alongside international conventions, if they choose to suggest minimum service regulations to Parliament. So they will also have to make similar statements.
I highlight that this amendment seeks to restrict minimum service levels so that they can be made only where they are necessary to provide protection for the life, personal safety or health of the whole or part of the population. While the protection of life and health are indeed important aims of minimum service levels in areas such as healthcare—
Baroness O’Grady of Upper Holloway (Lab)
I apologise to the Minister—it took me a while to find this on my system. He referred to minimum service levels being common in other European countries. I submitted a Written Question on this, to which the noble Lord, Lord Johnson, replied:
“The Government does not believe that direct comparisons with other European countries are particularly helpful because of the different administrative and legal frameworks governing industrial action.”
The Minister will also be aware that the overwhelming majority of the other countries in Europe that are cited provide for negotiated minimum service levels, not state diktat.
Lord Callanan (Con)
I did not say that they were particularly common, just that they exist in some European member states. Of course, provisions, agreements, labour relations, laws, relations with trade unions, et cetera, are different in other member states. The example I cited last time was border service provisions; many member states prohibit, in effect, strikes by border service personnel because those services are delivered by police, army or military services. The arrangements are different in other member states, but that goes to my point that we are entitled to do what we believe appropriate for the United Kingdom. However, similar provisions—albeit in different circumstances—exist in other member states of the European Union and other democracies worldwide. Noble Lords will remember from the previous Committee day the reasons we have given for believing that the six sectors in the Bill are correct.
The amendment would incorporate into domestic law decisions of supervisory committees of the ILO. These committees’ conclusions and recommendations are non-binding; they are intended only to guide the actions of national authorities. The only body with explicit competence to interpret ILO conventions is the International Court of Justice. I highlight to the noble Lord, Lord Hendy, that the ILO supervisory committee has stated that minimum service levels can be made in services
“which are not essential … but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population … and … in public services of fundamental importance.”
We do not believe that we are in contravention of our ILO duties. The amendment does not provide for minimum service levels in those circumstances, and I am therefore puzzled as to why the noble Lord did not include them in it, given that they were referenced previously in Committee and today.
I hope that, with these reassurances, I have been able to persuade noble Lords to withdraw and not move their amendments in this group.
Baroness Chakrabarti (Lab)
My Lords, I have two quick questions about the Minister’s answer to my noble friend Lord Hendy. First, I think I understood from his answer that he thinks that Amendment 18A would drive a coach and horses through minimum service level agreements. This may be an argument about “prohibit” or “prohibition”, because my understanding of the Bill as drafted is that, where a minimum service level agreement is imposed by regulations, that will remove some of the existing protections in trade union law. The Minister clearly wants that to be the case, but surely he is not suggesting that, for example, regulations should be able to impose criminal or civil penalties on workers. If that is not his intention, could something like Amendment 18A not be welcomed to make sure that regulations could not create that level of penalisation in the Bill? If regulations cannot criminalise workers, it is important that that is on the face of the regulation-making power.
Secondly, on the ILO as opposed to the ECHR, I think I heard the Minister say that the only body competent to determine compliance with the ILO is the International Court of Justice. That is hardly taking back control, and it is completely inconsistent with this Government’s permanent position on the Strasbourg court and the ECHR. What would be wrong with a domestic court having the ability to scrutinise whether or not regulations made by a future Secretary of State comply with the ILO conventions?
Lord Callanan (Con)
I will deal with the noble Baroness’s two questions. First, the reason I opposed Amendment 18A from the noble Lord, Lord Hendy, is that we believe it would effectively kill the Bill—indeed, this may be the noble Lord’s intention. This is because where a person is named on a work notice, they are effectively prohibited from striking for the day that they are identified to work; they would lose their automatic protection from unfair dismissal for industrial action if they did participate in the strike. This means that regulations for minimum service levels could not be made within the current drafting of the Bill. They would enable the prohibition of participation in a strike, and therefore the minimum service level could not be implemented—thus killing the Bill. I am sure the noble Lord, Lord Hendy, would be very happy if that were the case, but noble Lords will also understand that that is why the Government oppose the amendment.
Supervisory committees of the ILO are not entitled to interfere in UK law. There are conventions that we are signed up to, but the only way to interpret the decisions of the ILO is through the provisions of the ICJ. I am not a legal expert, but I can get legal clarification that it is possible for the ECHR to take into account the rulings of the ILO when adjudicating the relevant provisions in the ECHR.
Baroness Chakrabarti (Lab)
Please forgive me; I do not mean to be difficult, but these are very important points and I do not think I made myself clear in the way I put the questions to the Minister. I will try just one more time.
I do understand that the Minister intends that once minimum service level agreements have been imposed by regulation, employees who breach work notices will lose their protection from dismissal. I understand that as the ultimate sanction against them in the Bill. But my understanding of Amendment 18A is that it is also trying to deal with things such as regulations being used to create new criminal offences or new civil penalties—things that are not just removing protection from dismissal. Is the Minister prepared to say, in Committee, that this is not the intention behind the regulation-making power? Accordingly, will he consider amendments at a later stage to that effect?
I was not suggesting that it is about the Strasbourg court adjudicating on the ILO. I was suggesting that in our domestic public law, our courts are normally capable of second-guessing the legality of regulations. If that is to be the case, will our courts be able to determine whether regulations comply with the ILO?
Lord Callanan (Con)
I am happy to give the noble Baroness the commitment she seeks. There is no intention to create any criminal offence within this Bill; it does not do that, and it is absolutely not our intention.
On her follow-up question, the provisions in the TCA relevant to minimum service levels include commitment to ILO conventions, non-regression and rebalancing. Enforcement mechanisms vary, depending on the particular provisions. For the non-regression clauses, enforcement mechanisms include consultation and escalation, involving panels of experts and potential rebalancing measures, all of which would take place at an international level and cannot bring any claims in the domestic courts. I hope that gives the noble Baroness the reassurance she is looking for.
Lord Hendy (Lab)
My Lords, I am very grateful to the Minister for the clarity of his answer, and to all noble Baronesses and Lords who participated in the debate. I will not do them the disservice of attempting to summarise their speeches.
Let me deal with two points arising from what the Minister has said. First, he asked whether my intention is to kill the Bill. It would certainly be my desire, but that is not the effect of these amendments, for sure. He says Amendment 18A and the other amendments would prevent minimum service levels being set. That is simply wrong, as a matter of law. There is nothing to prohibit the minimum service levels being set. What the amendments propose is that the minimum service levels be set in such a way that, first, they cannot penalise workers for going on strike—individual workers who are requisitioned to provide service under a work notice should not be penalised, in accordance with the jurisprudence of the European Court of Human Rights—and, secondly, they comply with the standards of the ILO and the European Social Charter.
That brings me to my second point, which is the importance of the ILO. I say this with the greatest respect, but I am not sure the Minister has quite understood the position of the ILO in the hierarchy of international law so far as the United Kingdom is concerned. Before I explain that, I will make one thing clear: the Minister read a passage from one of the supervisory bodies of the ILO—it was in fact the committee of experts—and suggested that I had not quoted it. I read that very passage on to the record earlier this afternoon; I think Homer might have nodded briefly and missed that. The Minister said that the decisions of the ILO are not binding. In one sense, of course, that is true. Britain was the first country in the world to ratify Convention 87, which is the most ratified of all the conventions of the ILO. It is an international treaty and we are bound by it, but I agree that it is not binding in domestic law.
Secondly, ILO conventions and their jurisprudence are taken into account by the European Court of Human Rights in interpreting the various articles of the European convention, particularly Article 11. If you want to know what Article 11 has to say about the right to strike, it is no good looking at the text of that article. What you have to look at are the decisions of the European court. Every one of them refers to the jurisprudence of the ILO and the European Social Charter in defining what permissible restrictions there may be on the right to strike.
The third reason the ILO is so crucial is because of the trade and co-operation agreement. This is the point I was endeavouring to communicate to the Minister, but I think I failed to do so. I read a few words from Article 399 of the trade and co-operation agreement, but let me read a sentence. Article 399(2) says that
“each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions”.
So we are bound by the fundamental ILO conventions. Article 399(5) makes specific reference to implementing the provisions of the ILO conventions ratified by the UK and the provisions of the European Social Charter ratified by the UK.
It is not a question of the ILO interfering in the domestic jurisdiction of British courts or the British Parliament. We have chosen to be bound by the provisions of the ILO—a choice that we repeated in 2021 when we ratified the TCA. The fact of the matter is that we do not comply with the requirements of the ILO in relation to minimum service levels, particularly—I mentioned this earlier, but the Minister did not deal with it—because the ILO requires that minimum service levels are set with the intervention or input of the social parties, particularly the trade unions, and that there should be a specified mechanism for resolving any disagreements. That is not what the Bill provides, so we may well be in breach. Having said all that, I beg leave to withdraw my amendment.
Lord Fox
Member’s explanatory statement
This amendment seeks to ensure that work notices are only issued where all options to avert a strike are exhausted.
Lord Fox (LD)
My Lords, this is a slight change of gear from where we just were. This is a probing amendment, and it uses the idea that work notices can be used only after all other avenues have been exhausted. It returns a little to the thought experiment I was trying to have, which is the applying of the Bill, or the Bill if enacted, to what we have witnessed in the Government’s management or mismanagement of the public sector strikes that we have just been going through.
No matter what the strike and no matter which the sector, disputes are settled only when there is negotiation. The Government seem to have taken a long time to understand this with the disputes that we have just come through. The rail strike has been going on since June, and the nurses’ strike started in the autumn, but only in the last few weeks have these strikes begun to end, thanks to negotiation. Why did it take so long? Why were so many operations delayed? Why were so many people’s lives, as the noble Baroness, Lady Noakes, pointed out, disrupted by service delays in, for example, the train services?
Strikes are an extreme action for all workforces—workforces do not willingly go in for them—and that is certainly true in the health service. We have to remember that in the 106-year history of the Royal College of Nursing, this is, as far as I know, the first time that nurses have balloted and decided to strike. This is in a sense a very hard decision for those employees. I wish to probe the Minister in that context. Had these measures been available—had a minimum service level for the health service or the train services been in place—when and how would they have been deployed? Indeed, would they have been used differently in the two different services, one being essentially an emergency service and the other a transport service?
There has been no clarity on how these minimum service levels could and will be used. The noble Baroness, Lady Bloomfield, and I think the Minister, the noble Lord, Lord Callanan, himself, have said that they would be a matter of last resort. However, negotiating is in fact the last resort that brings people to the table and ends strikes. Where does the minimum service level fit in the pantheon of industrial relations here? That is what this amendment seeks to probe.
What we saw with the strikes that have been going on is that the decision to negotiate can only have been a political decision. The launch of the Bill was associated with that political decision and designed to shift the blame or the balance of blame to other sources. The only reason we saw movement is because in the end the Government decided that they had to negotiate with the health unions and started to gradually lift the blockers that they had been using on the train employers in order to move things forward. This is the evidence of how we see the Government operate. They are the ones who brought forward this measure, so how does this measure fit into that sort of behaviour? I beg to move.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, it is worth reminding ourselves why it is necessary to scrutinise this Bill in such detail. The RPC’s latest Independent Verification Body Report confirms that, since 2021, there has been an alarming increase in the number of impact assessments that have been red rated—not fit for purpose—and, of course, this Bill is one of them. There were no red ratings between 2016 and 2021; since 2021, there have been eight.
Turning to the amendments, which I am very pleased to support, one of the other fundamental flaws of the Bill is that it takes a provocative, one-sided position on industrial relations. Its partisan approach fundamentally offends people’s sense of fair play. The public are all too aware how real-terms cuts in pay and underfunding of public services have led to a crisis in staffing levels and service backlogs. Strikes are merely a symptom of worker discontent and, as all the polls show, that discontent is often supported and shared by service users.
As many noble Lords have observed, workers never take the decision to vote for strike action lightly and unions always want a negotiated settlement, but sometimes it seems that the only way some employers understand the true value of labour is when that labour is withdrawn. The task of government should be to help prevent disputes, or at least to help resolve them when they happen, not to throw fuel on the fire, but this Bill is based on the premise that strikes are the fault of workers and unions, as if they were never caused by the failure of employers to listen, compromise or negotiate, by years of government underfunding and cuts, or by the frustration that arises when the Government take so long to put more money on the table when, had they acted earlier, the dispute could have been settled months before without any need for a strike.
The Bill imposes yet more draconian requirements on unions, but no commensurate obligations on employers or government. Ultimately, it gives the Secretary of State the whip hand to weaken workers’ bargaining power and attempt to render a strike meaningless.
The partisan stance of the Bill is a fundamental flaw, but the naming of individual workers in work notices is the provision that many find most shocking. Why is it necessary for the Secretary of State to require that work notices list the names of individual workers who will be required to work, rather than just numbers—as I am aware that a number of employers have suggested? In response to a Written Question I asked, the noble Lord, Lord Johnson, said that the Bill provides:
“enforcement mechanisms to maximise the assurance that Minimum Service Levels (MSLs) will be achieved on strike days”—
in other words, naming of individual workers is necessary in order that they can be threatened with the sack.
How will the Secretary of State ascertain whether that list of individual names has been chosen without bias, discrimination or a vindictive attempt to target trade union activists? What will be the process and additional Civil Service resources needed to do that effectively? I genuinely do not know. Can the Secretary of State add or remove individual names, should a legitimate complaint be made? In the 2019 Queen’s Speech, when minimum service legislation for transport only was first planned, the Government pledged to ensure that
“sanctions are not directed at individual workers.”
What changed?
At Second Reading, the Minister asserted:
“This legislation is not about sacking workers”—[Official Report, 21/2/23; col. 1563.]
but of course it is precisely about sacking workers. The legislation expressly provides for the power that workers—nurses, firefighters or teachers—who disobey a notice to work during a strike for minimum service levels, perhaps unilaterally imposed by an employer and sanctioned by the Secretary of State, can be sacked. Crossing fingers and hoping that it will never happen is no comfort to those workers whose jobs are on the line. Key workers who kept Britain running during the pandemic and who were lauded as heroes now look set to become martyrs. Why is that, when emergency cover, where genuinely needed, is already arranged through mature agreement rather than diktat?
It has been so difficult to secure answers to many of the questions raised in this Committee, but nevertheless I will repeat another one. If a named worker calls in sick on the strike day that they have been notified to work, can they be sacked too—yes or no?
The Lord Bishop of Manchester
Amendment 21 seems to be just common sense. Surely it is appropriate that if a work notice is to be issued, it is issued only when all the options to avert a strike have been exhausted. As we keep hearing today, work notices bring serious consequences with them. As the Bill stands, it could lead to an individual employee losing their job. Beyond that, if trade unions do not take “reasonable steps” to comply with the work notices, they could face significant financial damages and the strike could be classified as illegal. If that happens, all the workers taking part in that strike risk losing their livelihoods.
Therefore, it is not clear what these “reasonable steps” are. The Joint Committee on Human Rights is not clear either, saying that
“the provision requiring trade unions to take ‘reasonable steps’ may fall foul of the requirements of Article 11”.
What assurances can the Minister give us that whole swathes of workers will not lose their livelihoods through this? Work notices should never be used lightly, especially in their current form. Amendment 21 provides some safeguards to ensure that this does not happen.
We can see from recent weeks and months, as other noble Lords have said, that trade unions want dialogue. They want to discuss matters of concern. They want to find mutually agreed solutions, which are the only solutions that actually work in practice. But if the Government adopt a more heavy-handed approach to strike action in those sectors where they have what elsewhere might be called coercive control, or if employees feel pressed to do so under fear of civil action, as we have heard today, this risks further division and delays agreement. If we allow work notices to be issued when other avenues to settle a dispute have not been fully explored, perhaps for political reasons of the day, that will, in my view and in the view of many others, extend and escalate disruption.
In its present form, the Bill will not reduce the short-term destruction caused by strikes; rather, it will lead to longer and more damaging strikes. That is not in what the Minister referred to earlier today as my parishioners’ best interests. It is not in anybody’s best interests.
Baroness Randerson (LD)
My Lords, my noble friend Lord Allan referred earlier, in relation to Amendment 15, to the key issue of human rights. The amendments in this group look at other aspects of this concept. Amendment 23 in my name seeks to examine the practicalities of an employer specifying a minimum service level. Other speakers have referred to the problems associated with this. It is going to be an invidious process. Let us look at how this will work.
The Secretary of State grandly specifies a minimum service level, then washes his or her hands of the practicalities and the personnel implications of it, because employers will have the job of implementing it. The Government will say that it is voluntary, as the Minister said earlier today, but at the same time, she made it clear that employers will be under some level of pressure from the Government to implement minimum service levels. This simple Amendment 23 makes it clear that employers need to specify only the number of employees in each role rather than by name in their work notice.
Lord Callanan (Con)
My Lords, I will now reply to the debate on Amendment 21, tabled by the noble Lord, Lord Fox, and Amendment 23 in the name of the noble Baroness, Lady Randerson, which have been grouped. These seek to limit how and when a work notice can be issued by an employer.
Amendment 21 seeks to place an additional and, in our view, burdensome requirement on employers in relation to issuing a work notice. Amendment 23 seeks to alter, fairly fundamentally, how a work notice operates. Both amendments would create unnecessary uncertainty for employers, unions and workers around their respective obligations for work notices.
Amendment 21 requires the employer to exhaust all options to prevent a strike before they issue a work notice. However, it is my submission that employers are already incentivised to avoid strike action due to the substantial cost and disruption that it causes them. If a trade union has given notice of a strike under Section 234A of the 1992 Act, which must happen before any work notice can be given, it seems reasonable for the employer to assume that the options to avoid a strike have, in fact, already been exhausted for the purposes of producing a work notice.
It is also not clear what the test would be for an employer to show that all the options had been exhausted to prevent a strike, creating significant uncertainty for employers and trade unions. The Bill does not prevent employers and unions continuing to negotiate to reach a settlement on the broader trade dispute and, we would hope, for the strikes to be called off. However, we know that negotiations can be complex and can cause uncertainty, so all parties, especially the public, need the fundamental reassurance that the minimum service will operate on a particular strike day. Therefore, the Government resist this amendment.
Amendment 23 seeks to alter how work notices are to operate by specifying that the work notice must identify only the number of persons required to work during a strike rather than actually naming them. There are a number of problems with this approach. First, trade unions are required under the legislation to take reasonable steps to ensure that members identified in the work notice comply with that notice. For that to be true, the trade union would need to see the work notice and to know which union members have been identified as required to work in order for it to take those reasonable steps to ensure that those members attend work rather than going on strike. Secondly, this amendment could lead to confusion between employers and workers about who exactly is required to work, particularly in instances where a large number of individuals are employed to deliver essentially the same duty—for instance, call handlers. There would no longer be workers
“identified in a work notice”
for the purposes of paragraph 8(3) in Part 2 of the Schedule. Consequently, the provision removing the automatic protection from unfair dismissal would presumably also not apply, and therefore cannot be accepted.
I reassure noble Lords that individuals named on a work notice will be notified of this as regards themselves only. They will not be issued with the work notice itself, and the work notice will not be a public document. Unions will be bound by data protection law in the usual way, and there will be no sanctions or consequences for individuals if the minimum service level is not then achieved.
Identifying individuals to work in advance of the strike day helps to provide clarity for workers, unions and employers about who exactly is required to work and the arrangements for that particular working day, as well as strike. Without this we believe it will cause confusion and would potentially lead to minimum service levels not being achieved, continuing the disproportionate impact strikes can have on the public, as well as potentially costly and unnecessary litigation between unions and employers.
Finally, let me pick up on the questions asked by the noble Baroness, Lady O’Grady.
Lord Monks (Lab)
Would the Minister accept that there is tremendous scope for victimisation in the provision that he is talking about, which this probing amendment is opening out? If the work notice is imposed on union officials—convenors, shop stewards, secretaries or whatever—they are in an extremely vulnerable position. They may have been doing the negotiation. They may have been regarded by the employer as awkward. All of a sudden they are put in the frame to say that you are coming into work, regardless of the role they may have played in the origins of the dispute. Is this not a victimisation permit for employers to use in all kinds of circumstances?
I worked in a place where the senior steward had been sacked and was victimised, and it is quite a common occurrence—other colleagues here will perhaps know more about that than me. It seems that the Government are giving a blank check to employers to take on individuals who are prominent in the union, and putting them in an impossible position of being summoned in by the employer at the same time as they may well have been leading the workers in the particular dispute that is taking place. What would the Minister say about that idea that he is giving a charter for victimisation?
Lord Callanan (Con)
I understand the noble Lord’s concerns but I do not believe he is justified in his worries. The Bill is clear that an employer must not have regard to whether a worker is or is not a member of a union when issuing a work notice. If an employee feels that they have been unfairly targeted then they can raise a grievance with their employer or ultimately take legal action to challenge whether the work notice complied with the law. That would then be a matter for the courts to decide.
Lord Blunkett (Lab)
I have listened with great care to what I think has been an analytical destruction of the very heart of this Bill. If, as the noble Lord has already enunciated, the right to take action for unfair dismissal is automatically removed by this Bill, how on earth can an individual take a grievance?
Lord Callanan (Con)
I do not understand the point the noble Lord is making.
Lord Blunkett (Lab)
I used to teach industrial relations a long time ago—I may be rusty. The purpose of unfair dismissal protection is that the employer cannot arbitrarily take away the right of a person to their employment unless they have good cause. If they have declined, and have taken a grievance following the notice they have been given, and unfair dismissal protection has been withdrawn, how can that grievance procedure be proposed and implemented?
Lord Callanan (Con)
They lose their protection only if they do not comply with a work notice. The whole principle of this—as the noble Lord has studied industrial relations, he will understand—is that, for a strike to be lawful, effectively you are breaking the contract you have with your employer. If the strike is lawfully called, you are entitled for the purpose of industrial action to break that contract. This merely reinstates that contract between you and your employer. If a work notice is issued and you do not comply with it, it would be treated as an unauthorised absence. There is no intention to say that that will result in dismissal. I would have thought that that would be very much a last course. As I said at Second Reading, we do not believe it will result in people being dismissed. We believe people will comply with the regulations and the law, and that the Bill will have the effect that we intended.
Lord Hendy (Lab)
I am sorry but I did not quite understand the Minister. I can see that dismissal for refusing to comply with a work notice might be a matter of last resort for the employer, but we are dealing here with the potential for bad employers to take the opportunity to sack somebody, and they might sack somebody without notice. If they do that, there is no possibility at all of the worker taking up a grievance. I do understand what other legal avenues there might be for such a worker—I can visualise none.
Lord Callanan (Con)
I was responding to the point I was asked about, and I made the point that, under the Bill, it is clear that an employer must not have regard to whether a worker is or is not a member of a union when issuing the work notice. I was outlining procedures that they could then follow if that was the case. Ultimately, they could challenge it in court, and that would be a matter for the courts.
I was going to go back to the point from the noble Baroness, Lady O’Grady, but I see that the noble Baroness, Lady Randerson, wants to intervene.
Baroness Randerson (LD)
In order to reassure me on the issue of names becoming public, the Minister said that names would not be made public and—I assume this is what he meant—would remain private between the employer and the employee. I just want to tease out how this will actually work. Apart from the fact that the person concerned would turn up at work on that day and so it would no longer be private, how would trade unions and other workers be able to challenge any of this legally? How would they challenge the overall balance of the decision-making of the employer and the fairness in the way in which all this has been carried out, particularly if someone were to end up losing their job as a result of the whole process? How would there be any legal assurance about this if the whole thing is cloaked in mystery?
Lord Callanan (Con)
Let me outline the procedure for the benefit of the noble Baroness. The work notice will not be a public document. The Bill makes it clear that current data protection legislation applies, while allowing the employer to provide the work notice to a trade union so that the Bill can be effective. Under the Bill, trade unions are required to take reasonable steps to ensure that their members who are identified in the work notice comply with that work notice. The trade union therefore of course needs to see the work notice and to know which union members may be named, in order to enable it to take those reasonable steps. Unions will otherwise be bound by data protection law in the usual way. Additionally, while those named on a work notice will be notified about that regarding themselves only, they will not be issued the work notice itself. Naming individuals to work in advance of the strike day helps to provide clarity to the workers, to unions and to employers regarding arrangements for that working day as well as the strike.
If the Committee will now permit me to move on and answer the question posed by the noble Baroness, Lady O’Grady, that may provide some clarity on the Government’s thinking in this respect. The first question the noble Baroness asked was whether Secretaries of State have a say in who is identified in a work notice. Fundamentally, the work notice is a matter for the employer, so there is no way that Secretaries of State can influence who is identified on a work notice.
Secondly, the noble Baroness asked whether a worker would be in breach of a work notice if they were sick on the relevant strike day. Workers should of course be supported if they are unwell and cannot work, and it remains the case that if a worker is too unwell to work, they are not obliged to work under a work notice. I hope that provides the clarity the Committee is seeking on this point, and I therefore hope that the noble Lord can withdraw his amendment.
Lord Fox (LD)
My Lords, this debate has revealed—or rather, not revealed—more than I expected. I am grateful to the Minister for imaginatively making things up as he goes along, which is what this seems to be. We have a Bill in which none of the details is included, and we are relying on the Minister to flesh out from the Dispatch Box how the Bill will work. [Interruption.] I am not talking about what the Bill is, but how it will work.
At least two misapprehensions are driving that interpretation of how the Bill will work—not what it says in law, but what it will do. The first is that the nature of the service sectors the Bill has identified is such that they are politicised. The Minister’s description of the interplay between employer and employee is an unrestrained free-market description, but we know—and this is why I was talking in the last group about using the current dispute as a model—that this is not a pure-play employee/employer relationship. There are three parties in this dispute, and the third party is the Government. By experience, behind the scenes and sometimes in front of the scenes, the Government have been part of the process of progression of these disputes, and in the end, they have been the arbiter of whether or not they were settled. So the Minister’s description of the nature of the dispute in which these minimum service levels and work orders would be used is an inaccurate model for us to consider.
The Minister speaks of the unions and the workforce as if they are two separate entities. We have to understand what the Minister thinks a union is. In large part, the union is the workforce, so keeping the work order secret from the workers by giving it to the union is an interesting concept.
The second misapprehension is that the Minister is expecting the union to oversee the work order, which is a list of names. We know from the Bill, because it specifically says so, that the names on that list could and should be either union members or non-union members. How does the union deal with the non-union members? Is it fair for the non-union members to have their names on the union’s list? These are the sort of practical details we do not have to hand because we do not have a description of work orders and minimum service levels. That is the problem the Minister is having to deal with and is working very hard to do so.
I will look very hard at Hansard because I find it very difficult to understand how the Minister sees the unions and the workforce operating independently in a workplace. Leaving that to one side, I beg leave to withdraw Amendment 21.
Member’s explanatory statement
Restricts the giving of work notices to trade unions which are recognised (either by an employer or statutorily).
Baroness O'Grady of Upper Holloway (Lab)
My Lords, in scrutinising this Bill there is always a risk that we miss the wood for the trees. The core concern remains that this Bill allows the Executive to take sweeping powers, avoiding proper parliamentary accountability and scrutiny, and to do so at the cost of fundamental human rights and freedoms.
The trade union movement is by far the biggest democratic membership organisation in this country. Millions of people join unions because the evidence is that membership is the best way to win better pay and conditions. Millions more recognise that by tackling exploitation and discrimination, and by upholding safety standards and providing, for example, second-chance learning opportunities to hundreds of thousands of workers every year, British trade unions perform a great public service.
The Minister often talks about balance, but the balance of power is already rigged in favour of employers and against working people. A key measure of that is that, at best, average wages have stagnated for well over a decade and workers’ share of the total wealth they produce has been shrinking.
Ministers claim that they are acting in the best interests of service users, but the majority of service users do not agree. For example, according to a poll for “Politics Home”, junior doctors are backed by a ratio of nearly 2:1. The bottom line is that service users trust public servants more than they trust Ministers. As IFS director Paul Johnson said in the wake of the Budget:
“You can’t keep cutting the pay of teachers, nurses and civil servants, both in real terms and relative to the private sector, without consequences for recruitment, retention, service delivery, morale and - as we have seen … strikes.”
Strikes are always the last resort. However, as has been vividly illustrated over the last few weeks, it is only because of that right to strike that the Government and employers have come back to the bargaining table and improved pay offers to rail workers, firefighters, health staff and, hopefully soon, teachers and others too.
The amendments in my name and that of my noble friend Lord Collins probe the Government’s appetite for taking sensible steps to prevent work notices being used to stop meaningful strike action, and to avoid victimisation, protect health and safety and protect equality rights. Without a prior requirement for an equality impact assessment, as set out in Amendment 30, there is nothing to help prevent direct or indirect discrimination on the grounds of race, sex and other personal characteristics. This, of course, is not an optional extra. The Government have a duty under the Equality Act and under Article 14 of the European Convention on Human Rights, which prohibits discrimination. We already know that this Bill will have a disproportionate impact on women—for example, nurses and cleaners—and on black and ethnic minority workers, who are significantly overrepresented in health and transport. The TUC and others have argued that by reducing union bargaining power, this Bill will be a huge step backward for tackling racism at work.
On a number of occasions, the Minister has been asked about protection against victimisation for elected workplace union reps, but I do not believe that it has been addressed adequately so far. Amendment 27 provides that opportunity. On all sides of this Committee, many of us are appalled that an employer and, ultimately, the Secretary of State propose to name individuals to work during a strike and to sack them if they refuse to obey. I anticipate that the Minister may suggest—indeed, he has suggested—that workers and reps who are victimised could make a claim to an employment tribunal, but that is cold comfort when your livelihood is stripped away. I remind the House that the NHS is not the only service suffering backlogs: the average waiting time for a first hearing at an employment tribunal is now 335 days for a single claim, or 55 weeks for multiple claims.
On Amendment 22, during day 1 of Committee, I asked the Health Minister, the noble Lord, Lord Markham, whether, in principle, Amazon could be included within the scope of “health services”, alongside other private companies, for the purpose of the Bill. I still have not had time to read the letter of the noble Lord, Lord Markham, with the attention it deserves, but the noble Lord certainly confirmed on the day that, yes, Amazon could be included in principle. I raise that for a couple of reasons. First, Amazon is a powerful multinational corporation that is notorious worldwide for its anti-trade union activities and oppressive treatment of workers. As I mentioned, Amazon warehouse workers in Coventry are now being paid £11 an hour—it is interesting that Amazon has raised this, in the wake of the first strikes that they have ever taken in this country.
Noble Lords will be aware of a GMB investigation using freedom of information requests that shows that one pressure on our ambulance services is the surge in call-outs to Amazon warehouses in the run-up to black Friday, a time of year when Amazon workers are under huge pressure to achieve targets. It is an inhumane pace of work that poses a danger to health and increases the likelihood of accidents—hence the spike in call-outs.
My other reason for raising the Amazon case is that those workers are of course on strike for union recognition, which they do not have yet. They want an agreement to collectively bargain with the employer on vital matters like pay, rest breaks, health and safety, but so far, shamefully, Amazon is refusing to recognise the union. In principle, if Amazon could be included in minimum service levels, as we were told, it could just draw up a work notice to force those workers to break their own strike. It would not even have to go through the pretence of consulting with the union, because it refuses to recognise one. In fact, any bad employer covered by the Bill could see this as an incentive to derecognise unions, and all with the blessing of this Government. What happens if the workers refuse to obey? They face the sack. If the union is deemed not to have taken these undefined “reasonable steps” to force them to work, it would be hit by legal action and all striking workers could be sacked. So Amendment 22 seeks to prevent the Bill becoming a licence for bad employers who refuse to recognise, or who want to break, trade unions.
Finally, regarding Amendments 24 on reasonable steps for employers, and Amendment 31 on assessments of health and safety, and consultation with trained and expert workplace health and safety union reps, the key concern has been the apparent lack of government understanding about the realities of running services in the six sectors and how to do so safely. For example, noble Lords will be aware, which is something of an irony, that the PR around the Bill claims it is about safety, when one of the key issues driving rail disputes has been the axing of safety maintenance jobs and safe staffing levels on platforms. Of course, the risk of dangerous overcrowding on platforms is something that would be made only worse by the Bill.
Lord Woodley (Lab)
My Lords, I support the amendments in this group, but the contribution by my noble friend Lady O’Grady is a heck of an act to follow. I should like to talk specifically on Amendments 25 to 28, which deal with the serious issue of targeting specific workers, especially, I say to the Minister, trade union activists. On reflection, I could have raised this in the debate on Amendment 21, but it is appropriate to do it here.
These amendments in the name of my noble friends Lord Collins and Lady O’Grady contain the issue of work notices and the potential for bad bosses to target, humiliate and victimise trade union activists—as has been raised by my noble friends Lord Monks, Lord Hendy and Lord Blunkett. Unfortunately, history is full of examples where bad bosses, given the opportunity, victimise workers in struggle. I say this seriously. I am talking about bad bosses. I have met many good bosses in my lifetime.
Let us go back 30 years, when the major players in the construction industry blacklisted hundreds of activists, humiliating them by depriving them of making a living and denying that they were ever doing so—and there are many other examples that I could give. In the Bill, we have notices issued to break a strike. Is the Minister really telling me that the bosses will not target activists, shop stewards, branch officials, conveners and even health and safety reps? Let nobody say that this will not happen; it will, and there is absolutely no protection in the Bill for trade union activists.
It is all very well for the Minister to say that an employer cannot use union membership as the basis for choosing which workers are compelled to break their strikes—although there seem to be no sanctions whatever if they choose to ignore this—but there is nothing to stop them choosing union activists, and experience tells us that they will. Strike leaders will obviously be at the top of the bosses’ hit lists, but nobody is safe from being forced to make the agonising choice between betraying your trade union principles of solidarity and standing together as workers, or potentially losing your job.
Let us take health and safety nominated reps. They do a great job for workplaces but, as my experience tells me, they can be somewhat pedantic, both to companies and, on occasions, to trade unions. They are not even protected and are therefore open to discrimination if they are told to cross a picket line that other workers have voted for. Their independence will be compromised, and this will not help companies or businesses going forward.
The disgraceful thing in the Bill is that it gives employers the right to list trade union members who have already jumped through hoops to vote for a strike and will now be forced to betray their colleagues and their own principles. If they do not, they can also be fired. Surely that is unacceptable in 21st-century Britain. The Joint Committee on Human Rights certainly thinks so: in its hard-hitting report, it suggests an amendment very similar to Amendment 27. The amendments here go further and offer broader and vital protection for trade union activists in particular, and I urge Members to support them.
I conclude with a very simple question for the Minister: is this legislation intended to be used by bosses to target, humiliate and even victimise strike leaders and other trade union activists? If not, why is there nothing in the Bill preventing this from happening? We need to know, and we need to know now.
Lord Fox (LD)
I will speak very briefly to this group of amendments; I will make no attempt to emulate the speeches from either the noble Lord, Lord Woodley, or the noble Baroness, Lady O’Grady, who have great experience in the union movement.
In the Bill, there is a specific requirement for the unions “to take reasonable steps” to implement work orders. On these Benches, there is still no understanding of what “reasonable steps” actually means and what legal jeopardy unions would be in if they did, or did not do, particular activities. However, I characterise this collection of amendments as causing the employers to take reasonable steps not to victimise members of the union as a result of this legislation. Therefore, it adds a mirror to the reasonable steps that the unions have to observe, so that the employers should similarly observe the same steps—and I support the spirit in which the amendments have been delivered.
The noble Baroness, Lady O’Grady, mentioned private sector deliverers. Having read the letter from the noble Lord, Lord Markham, my reading is that he rules providers such as Amazon out of the remit of this legislation. It would be helpful if the Minister could confirm whether my interpretation is correct. I credit the noble Lord, Lord Markham, with coming to your Lordships’ House and participating in Committee. We had no such benefit of a Transport Minister, and we still do not know the position of private sector suppliers of services in the transport industry. While we seem to have an explicit ruling out of private sector deliverers in the health service, we have no such ruling out in the transport sector. Will the Minister, in responding to or confirming my interpretation of the letter from the noble Lord, Lord Markham, also tell us whether the similar and other deliverers of private sector services, which are crucial to the railway industry, will be included in the remit of the Bill, or, as in the health service, not included?
Lord Callanan (Con)
My Lords, I thank all noble Lords who have participated in this short debate: the noble Lords, Lord Collins, Lord Hendy, Lord Woodley and Lord Fox, and the noble Baroness, Lady O’Grady.
Amendments 22 and 24 to 31 all relate to placing additional requirements on the process of issuing our famous work notice. It is the view of the Government that the current requirements in the Bill strike the right balance between the views and perspectives of employers and unions to enable a reasonable and fair work notice to be issued. The Bill explicitly requires that employers must consult a relevant trade union, and have regard to their views, before issuing a work notice. Additionally, work notices must not include more persons than are reasonably necessary to meet the minimum service level and employers, as I said earlier, must not have regard to whether a worker is or is not a member of a trade union when producing that work notice.
I respond, first, to the point made by the noble Baroness, Lady O’Grady, who waxed lyrical about Amazon warehouses. While it is possible for a private business to be in the scope of minimum service level regulations, if they provide a relevant service as specified within the regulations, I am happy to reassure the noble Baroness that the Government have no plans or intentions to apply minimum service levels to Amazon.
Amendment 22 tabled by the noble Lords, Lord Collins and Lord Hendy, and the noble Baroness, Lady O’Grady, would limit the issuing of work notices to recognised trade unions only. However, it is of course possible that strikes can be called by recognised and unrecognised trade unions, which can lead to disproportionate impacts on the public. It is therefore our view that MSLs must be able to be applied where a union, recognised or not, provides a strike notice to an employer.
I move on to Amendments 24 to 31 from the noble Lord, Lord Collins, and noble Baroness, Lady O’Grady. Amendment 24 looks to ensure that employers cannot name more persons than necessary to secure the minimum level of service. However, it is already recognised that employers should not roster more people than are needed to achieve a minimum service level, so that some workers can continue to take strike action if they wish to—that is the whole principle of the Bill. That is why the Bill already requires employers not to identify more persons than are reasonably necessary. This enables the employer some limited flexibility in providing for contingency to respond on the day to any operational incidents, sickness or other types of absence. In our view, the existing approach strikes the right balance and provides sufficient safeguards for workers. To go further would limit or eliminate an employer’s flexibility, which could then mean that minimum service levels—the whole point of the legislation—would not be achieved.
Amendments 25 and 26 both look to ensure that each individual is able to go on strike for at least part of the period of the strike, notwithstanding any work notice. The Government resist these amendments for three reasons. First, the number of days on a strike notice could be substantial across both short and long periods for which the union has a mandate to strike. It is therefore reasonable that some workers may need to work more than 50% of those strike days, especially if their colleagues are off sick, on leave or attending training. Secondly, these amendments would cap the minimum service level and reduce the influence of the consultation, and those who respond to it, in the setting of the minimum service level. Thirdly, Amendment 26 appears to prevent any work notice being given where there is only one day given on a strike notice, which therefore creates a loophole which could be exploited—that may have been the purpose of the amendment.
Amendments 27 and 28 look to require the employer to ignore a person’s trade union activities or use of trade union services in deciding whether to identify a person in a work notice. However, we believe the Bill already sufficiently protects against any discrimination regarding a worker’s union status when employers are preparing their work notices. The trade union activity or services that a union member may have been involved in are connected to whether they are a union member, which, as we have already said, the employer must not have regard to.
Additionally, existing legislation—Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992—already provides a remedy for workers who are discriminated against on union grounds, and that section will continue to be applicable here. Therefore, we believe the amendment is duplicative in nature.
Lord Collins of Highbury (Lab)
My noble friend Lord Woodley raised the issue of a health and safety rep, who does not necessarily have to be a union rep or even a union member but may well be victimised because of their activity in protecting workers. Will the Minister ensure that is explicitly addressed?
Lord Callanan (Con)
I do not accept the word “victimised”. A work notice effectively says that somebody has to fulfil their whole working contract as normal, whereby they come into work and get paid for it. That is not victimisation in any conventional sense of the word.
Lord Hendy (Lab)
The Minister raises Section 146 of the 1992 Act, which protects against detriment on union grounds, as he rightly says. But “union grounds” means either union membership or union activity, and Section 151 is the same protection against dismissal on grounds of union membership or union activity. Can the Minister explain why only union membership is protected in this Bill and not union activity?
Lord Callanan (Con)
It is because, as we already said, Section 146 of the Trade Union and Labour Relations (Consolidation) Act already provides a remedy for workers who are discriminated against on union grounds. That section will remain applicable here, as I said earlier.
Lord Hendy (Lab)
I apologise for intervening again. The point is that Sections 146 and 151 specify membership and activities, whereas this Bill protects against discrimination on the grounds of union membership alone. If the same protection against union activity is required in Sections 146 and 151, it should be required here as well. The obvious implication, if you were arguing a case in court, is that that protection is not given under this Bill, otherwise it would have been included.
Lord Callanan (Con)
I will seek further legal advice. I am not a lawyer, but it seems to me that if the provision already exists in other applicable legislation, there is no need to duplicate that provision in another statute. I will certainly check that with the lawyers for the noble Lord.
Amendment 29 seeks to require the employers to be satisfied that the work notice does not identify more people than reasonably necessary before giving a work notice. However, as we set out in new Section 234C(5), the employer is already required to not identify more persons in the work notice than are reasonably necessary for the purposes of providing MSLs.
Amendment 30, meanwhile, seeks to require the employer to assess the equality implications of the work notice. Again, in our view, this is not necessary. The Bill does nothing to reduce the existing obligations of employers under the Equality Act 2010. As I said, there is an existing legal provision that continues to apply. There is no need to restate it.
Finally, Amendment 31 seeks to require the employer to assess the health and safety implications of the work notice and consult health and safety representatives. The Government’s view is that the current requirements in the Bill strike the right balance between the views and perspectives of employers and unions to enable a reasonable and fair work notice to be issued. As I have said, the Bill explicitly requires that employers must consult the relevant trade union and have regard to its views before issuing a work notice.
Adding any further steps or requirements to this process will result in disproportionate and costly burdens for employers and could result in delays to the issuing of a work notice by the employer and therefore delays to minimum service levels being applied. I fully accept that this may well be the purpose of the amendment, but I hope the Opposition understand why the Government cannot accept it. Additionally, when drawing up work notices, employers must still adhere to the relevant requirements set out in existing health and safety law. That is unchanged by this legislation.
For these reasons, the Government resist these amendments.
Baroness O'Grady of Upper Holloway (Lab)
I thank the Minister—I think—for that response. Many of us raising legitimate concerns about this Bill are quite disturbed that the argument for naming individuals seems to be that you have to name individual workers so that they can be threatened with the sack and that it is necessary to share those names with employers so that they can be required to take reasonable steps or face significant sanctions, including seeing the entire workforce stripped of protection against unfair dismissal.
The whole basis of this Bill seems to be born of a “command and control” school of management where you order people to work rather than seek agreement, which I think most modern management is about. That is why it is particularly frustrating for those of us who are critics of the Bill, because we know that where minimum service levels are genuinely needed for safety issues and made by agreement, whether or not those agreements have been made at the last minute—so be it; that is often the case—they are much more likely to work effectively than anything proposed in this Bill.
I could make a number of points. I thank the Minister for his point about Amazon, but I feel I have now heard very confusing messages across this Dispatch Box from him and the noble Lord, Lord Markham, so I will want to come back and clarify that.
At some point I would like an opportunity to explain more clearly the real concerns in the trade union movement about victimisation and derecognition. They are not being brought up to put obstacles in the way of this Bill. They are born of real-life experience, both of trade union officers representing shop stewards, convenors and reps who have been victimised and of many of our families who have been through this. The penalty of victimisation is so high—to have your livelihood removed is massive. I would like to pursue this area in other ways if possible, because I am sure we can convince the Minister of the sincerity of that concern and the need for genuine protection.
It is confusing why there are specific references to not selecting people on the basis of trade union membership but not extending that to those who hold trade union office and lay leadership positions.
I could go on, but I will leave the Minister with one last question. I have yet to meet a reasonable employer who wants this Bill. I have had plenty queueing up to tell me that it is wrong, immoral or maybe just unworkable and will make matters worse from a pragmatic perspective. Can the Minister tell us of a single employer or group of employers batting for this Bill? I have yet to meet one. I beg leave to withdraw.
Lord Fox
“(9A) Failure to comply with a work notice may not—(a) be regarded as a breach of the contract of employment of any person identified in the work notice, or(b) constitute grounds for dismissal or any other detrimental action.”Member’s explanatory statement
This amendment would protect employees from detrimental action for not complying with a work notice.
Lord Fox (LD)
My Lords, the Minister may feel a sense of déjà vu in this group, but the point is to turn the focus to the individual worker named on the work order. This is not about the union or the company; it is to amplify the effect that this Bill can have on the individual. That is why I am happy to present Amendment 32 and to support the other two amendments in the group.
Amendment 32 would protect employees from the detrimental action of not complying with a work order. The point here is to amplify that, at the moment, failure to comply with a work notice could be regarded as a breach of contract. This amendment seeks to remove that possibility. Why? Because we are looking at a list that is prepared by an employer, with no sense of what criteria that employer is using to deliver the list. The employer assesses the number of people, and indeed the names of those people, who are required to produce a minimum service level that a Minister has decided with very little recourse to Parliament. It is the individual who is at the end of that chain, over which they have no control or power whatever. That is the point I seek to emphasise here. It is the individual at the end who will carry the can for this Bill, if it becomes an Act.
I have proposed this amendment because I want to emphasise very clearly that, although the Minister says the Bill is not about wanting to sack people, it can, and because it can, it will be used in the future to sack people for not complying with work orders—work orders produced in a process over which employees have essentially no power or ability to appeal whatever. It is an absolute infringement of their freedom. That is why I propose this amendment. Under the Bill, the employee could be sacked for taking strike action that has been agreed by a democratic ballot, it having gone through all the hoops that the Government require such ballots to observe. Because the employer has decided to put them on a list, the employee cannot do that.
From everything that has come from the Dispatch Box so far, I think it will be hard for the Minister to understand this. However, it is something my colleagues on these Benches and I have discussed a lot, and which we find to be a really important element of the Bill. It is about the relationships between unions and their employers, and between the employers and the Government, but in the end, it is about a fundamental individual right, and this Bill removes that right. I beg to move.
Lord Hendy (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Fox. My Amendment 32A simply amplifies the noble Lord’s amendment and takes it a little further.
As I understand it, and the Minister will correct me if I have misunderstood the Bill, the consequence of being requisitioned and then refusing to work during a strike is that there will be no protection from unfair dismissal. As many other Members of the Committee have already said, if that is the case, bad employers—of which there are some—will use that as an excuse to be rid of people who they regard as trouble-makers, whether or not they are union activists.
The Lord Bishop of Manchester
My Lords, I speak in support of Amendment 41 in the name of the noble Lord, Lord Collins, to which my right reverend friend the Bishop of London has added her name, and the other amendments in this group. My right reverend friend regrets that she is unable to be in her place today. In fact, given that she is at this very moment leading a debate among fellow bishops on the subject of sexuality, I think she would much rather be here in your Lordships’ House alongside me. Therefore, in supporting these amendments, I wish to include a number of points which she would undoubtedly have made had she been here.
As we have heard earlier today, including from the noble Lord, Lord Allan of Hallam, proportionality is a central principle of law. I hope that noble Lords will allow me to draw attention from these Benches to an important biblical perspective on that topic. I suggest we should respect the limitations set by Moses over 3,000 years ago in the Hebrew scriptures. When Moses laid down a simple rule,
“an eye for an eye, a tooth for a tooth”,
he was not advocating mutilation as the proper means of punishment. He was making the crucial point that the punishment must never exceed the gravity of the offence.
Dismissal for failing to comply with an instruction to work on a strike day is, in my view, the view of the Joint Committee on Human Rights, and, I suspect, the view of many others, grossly out of all proportion. I also wonder how enforceable it would be. Were I a worker issued with such an instruction, the stress I would suffer in consequence could quite likely render me unfit to turn up to work on the day—and, as I trust your Lordships have begun to recognise, I am a fairly tough nut. Will the Minister therefore agree to explore, before we reach Report, whether some lesser maximum penalty would be more appropriate?
Moreover, as the Royal College of Nursing has said, sacking workers for failing to accede to such an instruction to work
“would exacerbate severe nursing workforce shortages”
that we already face. Nursing vacancies are already high—is it more than 43,000? That is a 10% increase over the last 12 months. There are similar shortages elsewhere in the public sector.
The first day in Committee highlighted major unresolved questions about the application of the Bill. The breadth of the roles under the titles of “health services” and “transport services” is huge. Providing minimum service levels that are of the same urgency, and providing for penalties of the same severity, for those who drive blue-light emergency vehicles and the driver of my local 98 bus is absurd.
The amendments in this group would continue protection of employees’ rights and would protect our workforces from further exacerbation of already severe shortages. I urge the Minister to accept them.
Baroness Chakrabarti (Lab)
My Lords, it is a great pleasure to follow the right reverend Prelate. We have already discussed at length the proportionality concerns about the minimum service level agreements being imposed per se, but now we get into the sanctions and consequences for trade unions in what will follow, but also for individuals. We must now talk not just about the vital human rights principle of proportionality that we discussed before but about the vital principle of non-discrimination.
This gives me the opportunity to reflect on an earlier exchange between the Minister and my noble friend Lady O’Grady of Upper Holloway. There was a dissonance about this concept of victimisation. As I understand it, the Minister was saying, “For goodness’ sake. It’s not victimisation to say that there needs to be a minimum service level agreement to protect the public, and therefore there have to be work notices”. However, what perhaps the Minister did not hear or understand is that when you give employers the power to pick and choose between individual employees, we are opening up the Pandora’s box of abuse of power. When we legislate in your Lordships’ House, we have to guard against potential abuses of power.
If employers, scrupulous or otherwise, are allowed to pick and choose between individuals, some people will never be on the list but other people will be, and sometimes the people will be selected for that list on grounds that include their race, sex, sexuality and possibly even their role within trade union activity. I think that is the point my noble friend was trying to make to the Minister, and this is the power that is being handed to individual employers, in contrast with years of struggle for protection against discrimination, including discrimination on the grounds of trade union activity as well as membership.
If, as I fear, the Minister will not pause the Bill or introduce greater parliamentary protection before the powers can be triggered in the first place, please will he look at the powers given to individual employers over groups and particular employees in the workplace, because it is invidious and, I think, very dangerous?
Baroness Noakes (Con)
My Lords, it seems to me that the noble Lords, Lord Fox and Lord Hendy, are finding yet another way to try to deprive the Bill of any effect. In their own ways, they are trying to make it entirely voluntary to take part in the provision of minimum service levels, if requested by an employer. That runs completely counter to the policy intent of the Bill.
If noble Lords think that the Bill needs to be modified in some way to reflect their concerns, it is incumbent on them to produce amendments which find a practical way through that. To simply, in effect, make compliance with a minimum service level work notice voluntary is unacceptable in the context of the Bill. Although I understand the points that the noble Baroness, Lady Chakrabarti, makes, those issues are already covered by discrimination law. The concern she has about being selected on the grounds of sex, sexual orientation or race is already covered by discrimination law and does not need to be protected again in the Bill.
Lord Fox (LD)
Does the noble Baroness accept that in Committee, there are two sorts of amendments: there are amendments which are very practical and designed to be used as a template for changing the Bill, and there are probing amendments? I point out that I made it very clear that the latest two groups I was speaking to were probing amendments. On that basis, I think her criticism is invalid.
Baroness Chakrabarti (Lab)
I am grateful to the noble Baroness for engaging so specifically and constructively in the debate, but I do not think she appreciates just how difficult it is, even under the present law, for people to go to a tribunal, with or without the assistance of lawyers or their trade unions, to demonstrate that they were picked on for one of these reasons. Now, in this Bill, a specific protection against unfair dismissal is being removed. An employer will say, “No, no, X, Y or Z was picked for this other reason. They are essential to the service”. It just happens to be the noble Baroness, Lady Chakrabarti, who is essential to the service every time and not, for example, my noble friend Lord Hendy, who of course is the expert. If I am always essential to the service and he is not, it will be very difficult for me to demonstrate that it was discriminatory, when the whole purpose of the Bill is, as the noble Baroness said, to remove protection from unfair dismissal.
Baroness Noakes (Con)
The purpose of the Bill is not to remove protection for unfair dismissal; the purpose of the Bill is to ensure that minimum service levels can be guaranteed for those who rely on the services, and we are trying to find practical ways through that. I was inviting noble Lords to find ways did not simply rip the heart out of the Bill.
Lord Hendy (Lab)
I just say to the noble Baroness that there is nothing wrong with conformity being voluntary. The whole basis of the ILO jurisprudence is that minimum service levels and requisitioning should be agreed voluntarily between the unions and the employers. In most of the countries of Europe where they have minimum service levels, volunteers are sought to provide the minimum service. That is also true in this country. We have been hearing for days about the local agreements that are reached in all the six sectors identified here.
That is done on a voluntary basis, and the people who do the work volunteer to do it. They speak to their union, and the union says, “Somebody has to do it; you’re going to do it”, and they say “Okay, fine if that is the price of having the industrial action and bringing pressure to bear to maintain our standard of living, that is the price I am prepared to pay”.
There is nothing wrong with voluntariness. It does not detract from the rest of the machinery of the Bill in setting minimum service levels and issuing work notices, if that is really what the Bill is intended to do.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, I will speak to Amendment 41 in my name and the names of my noble friend Lord Collins and the right reverend Prelate the Bishop of London, and support the amendments tabled by the noble Lords, Lord Fox and Lord Hendy.
Many of us agree that one of the most disturbing features of the Bill is that it hands employers powers to name individual workers in a work notice and potentially force them to work against their will, through a strike, without their individual consent or the agreement of their union—or face the sack. Many employers in the public and private sectors have told us very clearly that they do not want this authoritarian power because it would sour industrial relations. If the Bill is enacted, they fear that they would come under undue political pressure to exercise that power. The publication of WhatsApp messages, as I mentioned previously, between the then Health and Education Ministers revealed that at the very same time as they were publicly praising, clapping and thanking key workers for their efforts during the pandemic, privately they were describing those same workers and their unions—unions are made up of workers—with contempt.
The noble Lord, Lord Callanan, has often sought to reassure us by saying that he hopes the powers will never be used and that there would be no undue pressure. However, I am sure that he would agree—I might even get a smile out of him—that if Gavin Williamson was Education Minister today, on the evidence of those WhatsApp messages, he would be straining at the leash to ensure that academy schools pulled that trigger. That is the fear.
The Government have continually cited France, Italy and Spain as countries that also provide minimum service levels. However, unlike in the UK, in each of these countries the right to strike is a constitutional right. Perhaps the noble Lord can also confirm which of these countries, if any, have provided a blanket power to remove protection against dismissal for individually named striking workers? I submitted a Written Question on this subject, but the response I received did not answer the Question. What is more, it took 15 days rather than the expected 10 not to answer my Question. In fact, the answer, as we have heard, is zero. None of those countries does that.
Can the Minister also explain and justify a gaping hole in the consultations issued on the Bill so far? Those consultations failed to ask whether respondents agree with the Government that it is acceptable to sack individual firefighters, ambulance staff and rail workers if, for example, for reasons of conscience they do not comply with the work notice. Could it possibly be that this is not in the consultation because Ministers know that they will not get the answer that they want? Most fair-minded people find the idea of such sackings abhorrent. The sacking of individually named workers who refuse to comply would be catastrophic for workers’ rights, staff morale and industrial relations in this country. I remind the Minister that NHS job vacancies currently stand at over 133,000 and that 17% of newly qualified teachers leave within two years.
Not so long ago, following a public outcry about what happened at P&O, Government Ministers condemned its scandalous behaviour, and rightly so. Ministers said then—I quote from the 24 January government press release—that unscrupulous employers
“must not use threats of dismissal to pressurise employees into accepting new terms”.
But the Bill provides powers to do exactly that: to pressurise key workers into accepting terms under threat of the sack. These key workers’ heroic work through the pandemic has earned the public’s respect and gratitude. One firefighter was moved to write a letter about his experiences. He says that he has been proud to work for the service for 15 years, including being deployed to Nepal following the devastating earthquakes in 2015; that he and his colleagues have a can-do attitude and have provided emergency cover voluntarily when needed through industrial action; and that they entered the service because they want to help people. He warns against this legislation and says that it is unnecessary, given that arrangements for emergency cover are already in place, and says that Ministers
“can’t simply legislate away the depth of anger and frustration we feel about how we’ve been treated. The Bill could lead to individual workers like me being sacked for taking part in legal and democratically decided industrial action over issues which are genuinely of concern to society in general.”
Taking the power to sack workers whose names are chosen unilaterally by employers, as sanctioned by Ministers, is understandably perceived as deeply provocative. If this firefighter refused to comply with the work notice, does the Minister really imagine that his colleagues would stand by and let him be sacked? Some argue that the Bill is intended to be provocative but, if so, that would be foolish. The provision to sack workers flies in the face of all industrial relations common sense and any sense of human decency.
I know that we are covering the same ground, but it is not just named individuals who could be vulnerable to the sack, as the Joint Committee on Human Rights made clear in its report:
“We find it hard to see how it is compliant with Article 11 ECHR to expose any participant in industrial action to the risk of dismissal simply because a trade union fails to take unspecified ‘reasonable steps’ required in respect of those subject to a work notice.”
I will not go on, but I look forward to the Minister's response—or, better still, an indication that this Government will remove that right to sack striking workers from the Bill.
Lord Callanan (Con)
My Lords, I thank all noble Lords who have contributed to this debate. At the risk of provoking further interventions, I will start by replying to the noble Baroness, Lady Chakrabarti. I do not know the legal definition of victimisation, but her understanding of it is clearly different from mine. I would define it as something like “subjecting an individual to degrading, unfair treatment”. In effect, a work notice says to an employee, “You fulfil your contract, as has been previously agreed, as normal. You come into work, do your normal contracted job and get paid for it.” In any definition that I understand, that is not victimisation. Obviously she has an alternative view, but I do not believe that it would come under the definition.
I will directly address the point by the noble Baroness, Lady O’Grady. I have said it before and will say it again: this legislation is not about sacking key workers. Let me be very clear about that. She inquired about the outline of the Bill: it is about protecting the lives and livelihoods of the public by enabling minimum service levels to be applied on a strike day. If people comply with the legislation, then there is no question of anybody being sacked on the basis of it.
This group of amendments seeks to ensure that no detrimental action could be taken by an employer against persons who are named on, but then fail to comply with, a work notice. There would be no consequences for participating in a strike despite being named on a work notice. The whole intention of these amendments is not to achieve a balance between the ability to strike and the rights and freedoms of the rest of us to go about our normal daily business—to get an ambulance, to attend the health service or to have a firefighter come to put out a fire in my property. This is about ensuring that strike action can continue with no consequence whatever and with no regard as to whether a minimum service level will be achieved. That fundamentally cannot be accepted by the Government.
For a minimum service level to be achieved, it strikes me as obvious that enough people need to attend work and therefore workers need to be appropriately incentivised to do that. The legislation achieves this by removing the automatic protection from unfair dismissal where employees participate in strike action despite being named on a work notice. While it is at the discretion of employers rather than the Government as to what, if any, action is then taken against employees in those circumstances, we think it vital that the Bill equips employers to manage instances of non-compliance, just as they would in any other case of unauthorised absence, to enable them to achieve that minimum service level. As my noble friend Lady Noakes observed, employees retain all their existing protections against discrimination—a very good point that further reinforces why these amendments are not required.
Overall, we believe that the approach in this legislation is fair and reasonable and ensures that there is the balance, which we have talked about so often, between the ability to strike and the rights and freedoms of everyone else to go about their daily business and use essential public services. Removing the ability for there to be any consequences whatever for failing to comply with a work notice would likely lead to strikes being more disruptive, as we have seen, when compared with the level of service that employers would be able to provide by applying a minimum service level that allows for these consequences.
Finally, there is a point of detail. Amendments 32 and 32A, if implemented, would cause a significant legal conflict with Part 2 of the Schedule, which makes amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 to make clear that there is no automatic protection from unfair dismissal for an employee who is identified in a valid work notice but participates in the strike contrary to that work notice.
In conclusion, I resist these amendments on the grounds that they seek to sustain or increase the disproportionate impact that strikes in these key areas can have on the public as a continuation of the status quo, a continuation of the public being disproportionately impacted by strikes and a continuation of lives and livelihoods being put at risk by those strikes. Therefore, I cannot accept these amendments.
Lord Fox (LD)
With each group of amendments that passes, I get the impression that the area of carpet between me and the Minister is getting larger. The differences are getting larger rather than smaller, which is disappointing because sometimes in Committee they can be narrowed, but I do not get that sense. In describing the change in a person’s contract so that on one day they are able to strike with legal protections and on the next day that contract is unilaterally changed, I do not have to use the word “victimisation”. I can use some other word, perhaps “unfair” or “wrong”. That is the fundamental difference between me and the Minister, and that is what is causing the carpet to expand. Acknowledging that this was a probing amendment, I beg leave to withdraw the amendment.
Lord Collins of Highbury
Member’s explanatory statement
This amendment is to probe the level of protection of unions when involved in industrial action.
Lord Collins of Highbury (Lab)
My Lords, I suppose I had better start by making clear that I am probing these relevant clauses because I do not think what is set out in the Bill is clear. I also think it is important that we set out where we are on statutory protection for unions. We are certainly probing what could be considered “reasonable”—a word that I find extremely difficult without any further description in the Bill.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
I should advise the Committee that if this amendment is agreed, I will not be able to call Amendments 34, 34A or 35 for reason of pre-emption.
Lord Hendy (Lab)
My Lords, I shall speak to Amendments 33 and 34. I share my noble friend Lord Collins’s outrage at this proposal. It is one thing to set minimum service levels and another thing to specify requisition notices by way of a work notice, but to require trade unions to organise themselves so as to break their own strike is a step that has never before been taken in this country and, so far as I am aware, is not required in any other country in Europe.
I remind the Committee that the provision in the Bill that we are seeking to discuss says
“the strike is not protected as respects that person’s employer if … the union fails to take reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice.”
So the obligation on the union is to
“take reasonable steps to ensure”
that all members comply with the notice. That is a very heavy obligation to put on unions. In principle it is objectionable, but the extent of it makes it even more so.
I cannot develop the objection on principle further, but there are some practical considerations here that perhaps the Minister can consider. We are envisaging a work notice given by the employer to the union, setting out names of a number of workers who are required to work and the work that they are required to do; we remind ourselves that, at the end of the Bill, it is said that that can be on a daily basis. If you have one employer and one strike affecting a small number of workers, that may be a relatively easy obligation to comply with.
However, I remind the Minister that the Bill applies to the education service. I have just looked up the Office for National Statistics site, which tells me that there are 32,226 schools in this country—although in fact I understand from the National Education Union that it balloted only some 24,000-odd of those. Think of that: even if we assume that only half the employers decide to supply a work notice, on a daily basis the unions are going to get 10,000 or 12,000 emails with a list of teachers who are required to be in. The union then has to set that list against its own membership database in order to determine which of them are members of the union, and then has to communicate with each one of them in order to demonstrate that they have taken “reasonable steps to ensure” that those members comply with the notice. This is just nonsense, is it not? It really must be.
Part of the problem is that the Bill does not define “reasonable steps”—that will be left to the courts to determine. I have done enough of these industrial action cases over the last 40 years to know that employers’ barristers—all friends of mine—are going to use every argument in the book to demonstrate that the union has not taken the “reasonable steps” that the employer says it should have. One of those, of course, will be to say that the union did not threaten to discipline any members who refused to comply with the notice or expel anybody, and to ask what it did do.
All of this is against the background of a union having committed itself, after a vote in favour by the members—a vote which meets all the thresholds—to advancing a strike. All the publicity that goes out from the union’s website and journal and in emails to members will say that it is calling a strike on, say, the 24th of the month, starting at midnight, and calling for members to join the strike, go on the picket line and participate—this is their fight and their struggle for better pay and conditions, or whatever it is. However, the union has to demonstrate that it identified those members appearing on a work notice in order to show that it took reasonable steps to ensure that those members complied. This is simply not realistic, and it is not acceptable.
Lord Fox (LD)
Following on from the noble Lord, Lord Hendy—I apologise for butting in—it is not quite as simple as that. What happens if, of the employers list, 30% of them go off sick? Who is accountable for filling in the gap? Is it the union? Does it have to take “reasonable steps” to find substitutes? The Minister shakes his head to say that it does not—that is good. Perhaps when he replies he can explain what happens in the event of a significant number of those people going off sick.
I will not add any more, as I am sure there will be plenty from the Benches of His Majesty’s Opposition.
Lord Woodley (Lab)
My Lords, I support these amendments and want to complement and supplement the contribution of my noble friend Lord Hendy. As he said, these amendments deal with the fundamental issue of protecting trade unions from being forced to act against their own interests during a legally authorised dispute.
Like my noble friend, I find one of the most appalling parts of this skeletal Bill the requirement for trade unions
“to take reasonable steps to ensure”
members comply with a notice to strike-break. Ensuring compliance is the role of the trade unions, according to the Bill. What on earth does that mean in practice? There is nothing in the Bill to guide us here. How can unions be expected to police their own members who, after all, are simply ordinary workers who voluntarily joined the union? They pay their subscriptions and expect their union to support their democratic decisions, especially during disputes.
How is compliance normally ensured? How does the state ensure that people comply with its laws, for example? Again, as my noble friend Lord Hendy said, it is by threat of sanction or some kind of punishment. Is that what is meant here? Are trade unions supposed to threaten their own members with some kind of punishment if they do not cross their own picket lines? It is ridiculous. It is certainly not clear in the Bill whether that is or is not the case. But you can bet one thing: the bosses will see it that way.
What if the bosses or, ultimately, the courts decide that this punishment is not harsh enough? What if it is decided that the union did not take so-called “reasonable steps” or threaten punishments harsh enough to ensure that its members complied with the employer’s work notice? What then? Well, the whole strike loses legal protection, as does the union. What does that mean? The Minister in the other place was very clear in his letter to the Joint Committee on Human Rights when he said that all workers would
“lose their automatic protection from dismissal for industrial action”.
In short, they could face the sack. There is no dispute about what was said in the other place.
Baroness Chakrabarti (Lab)
My Lords, this group gives me the opportunity to speak to the noble Baroness, Lady Noakes. Earlier, she encouraged the Committee to be constructive when we debated whether an amendment was probing or constructive. Given the gestures from the Minister from a sedentary position, it is clear that, even if the Bill passes, there is room to specify these reasonable steps and new duties upon trade unions. That is my attempt to meet the noble Baroness half way and be constructive about a Bill that I think is hugely disproportionate.
With the greatest respect to my noble friend who just spoke, these amendments do not just expose a breach of Article 11, on freedom of association; they quite possibly expose a breach of Article 9, on freedom of conscience. I am afraid there are no right reverend Prelates here at the moment, but it is as if we were to say to the bishops, “We live in a modern, diverse democracy, even though we have an established Church, but it is now your obligation to actively encourage divorce and abortion.” Clearly, that would be ludicrous, and it is equally ludicrous to be saying to trade unions not only that, as indicated in Amendment 34, they should try to make their members aware of the legislation and of work notices, but that they should ensure compliance as well. The Government are making employers in relation to these public services the policeman for the Government, but it is a step too far to make unions the policeman for the Government as well—not least in the context of disputes which will continue to be lawful under this proposed legislation, but just some people will have to go to work.
Hence, I commend in particular Amendments 34, 34A and 35, which highlight that knowledge is one thing but ensuring compliance is another. They demonstrate at length that unions should not be disciplining their members for not going to work, and that picketing has to remain perfectly lawful, not least because most workers, we hope, or many workers, will still be entitled to go on strike, notwithstanding the minimum service levels and the specific work notices. The Bill needs to specify what is reasonable and what is required of trade unions.
Baroness Noakes (Con)
Does the noble Baroness agree that “reasonable steps” is a formulation used in a number of legislative formats? It has not been defined further on those occasions when it has been used in order to provide the flexibility to allow for the situation to be judged on its individual circumstances and, indeed, to allow for technological developments. What would have been reasonable, for example, in communication with affected workers 10 years ago could be quite different now. If we take the example of the duty to prevent bribery, “reasonable steps” is not defined in law and that is a virtue of the law, because it allows the situation to be judged at the time. That is why the Bill takes this pragmatic approach.
Baroness Chakrabarti (Lab)
I totally agree, by the way, with the noble Baroness that there are areas of our common law in particular, and some statutes, where the inclusion of the adjective “reasonable” by itself will do the trick. I disagree that it is appropriate here because we are asking unions to do something that is inherently counterintuitive to their raison d’etre, which is to organise workers, in extremis, to go on strike. If one is saying to the union, “You are now having to push against the grain of your whole existence, the existence of your organisation, and your freedom of conscience and your association, which you are entitled to under the convention and the ILO”, and if one is pushing them in the opposite direction, one has to be very specific and proportionate about the nature of that totally counterintuitive duty.
Baroness O’Grady of Upper Holloway (Lab)
If I can elaborate even further, it is not necessarily the issue of being counterintuitive or not; if there is a voluntary agreement, both parties enter into that voluntary agreement with good faith. So if, as we have discussed many times before, safety is genuinely at risk and there are life and limb agreements, unions and employers work incredibly closely together to secure the consent of individual workers, and issue them with what we call exemptions to go across that picket line. That can all happen. But as soon as you introduce the law and remove that requirement for agreement, why is it our responsibility to make this work? It is not our responsibility; it is the employer’s responsibility. You cannot have it both ways. If we are going to have a voluntary agreement, we will do our best to honour and make that voluntary agreement work. If the state intervenes and dictates to workers under threat of dismissal, it simply will not work.
Lord Callanan (Con)
My Lords, I am grateful to those who have contributed to the debate.
It should go without saying that, to achieve a minimum service level, employers, employees and trade unions all have a part to play, and the Bill makes clear what those respective roles are. As many Members have quoted, unions are required to take “reasonable steps” to ensure that the union members named in the work notice comply with the notice. If they do not, they will lose protection from legal claims.
In response to the noble Lord, Lord Woodley, I say that there are a range of steps that trade unions could take, and what is considered reasonable can depend, as my noble friend Lady Noakes made clear, on each specific situation. First and foremost, a trade union should not call a union member identified in a work notice as required to work on a particular day out on strike that day. The trade union could also encourage those individual members to comply with the work notice and make it clear in its general communication with workers that, where members are named in a work notice and therefore required to work on a particular day, they should work on that particular strike day.
Before turning to the individual amendments, I will respond to the question from the noble Lord, Lord Fox, about what would happen if a number of the workforce are sick on the day of the strike. As I indicated to the noble Lord from a sedentary position, the responsibility of the unions is to take “reasonable steps”, as it says in the Bill. If union members named in a work notice are off sick, it is not the responsibility of the trade unions to find other members to take their place; it is the responsibility of employers to ensure that enough work notices are issued to fulfil that minimum service level.
Amendments 34 and 34A seek to diminish the responsibility of unions to take reasonable steps to ensure that their members who are named on a work notice actually attend work rather than participating in strike action. These amendments would remove any obligation on the trade unions to notify their members of the need to comply with a work notice and not to take part in the strike, which, in my view, would reduce the likelihood that a minimum service level will be maintained or achieved. Therefore, the Government are unable to accept them.
Amendment 33 goes further and seeks to ensure that unions have no responsibility whatever for ensuring that their members comply if they have been named on a work notice. It also ensures that there are no consequences for failing to meet that responsibility. I submit that that is an attempt to disrupt the balance between the ability to strike and the rights and freedoms of others, and therefore the Government cannot accept the amendment.
If a union member does not cross a picket line when identified on a work notice, this will of course negatively affect the employer’s ability to achieve the minimum service level at all. The picket line is usually a critical place for a union to exercise persuasion over its members, and we have seen some egregious examples of that. However, the Bill and the achievement of minimum service levels would be substantially undermined if the union’s obligations did not extend to picketing, and therefore we cannot accept Amendment 35.
The responsibility of the union to take reasonable steps is a continuing one, because the impact on the public is the same if a minimum service level is not achieved, whether or not that results from picketing activities. Therefore, the Government cannot accept these amendments, which would significantly reduce the responsibilities of trade unions. Our view, which is reflected in the legislation, is that they need to play their part in ensuring that essential services continue during strikes. As always, we encourage unions to act responsibly and to fulfil their statutory duty that will be established by the Bill if it becomes law. I therefore hope that the noble Lord, Lord Collins, will withdraw his amendment.
Lord Collins of Highbury (Lab)
The simple fact is that the Minister tries to keep repeating a narrative that the Government are on the side of the public and, somehow, the Opposition are not. Actually, that is not the case, and, as I said before, the public will not be fooled.
I am glad that the noble Lord, Lord Markham is here, because we had a discussion about the six sectors. There was a manifesto commitment on transport, but then that disappeared, especially when an impact assessment said that the law would not work and would prolong disputes, with greater impact on the public, so it is not worth doing. Now, we have had discussion about six sectors, a number of which have very strong voluntary agreements that work. Employers have told us that where people volunteer to do something, against their conscience, which is what we are talking about, it will be more effective. In the health service, NHS Providers is telling us that that is what it wants to do: it wants to ensure that people volunteer and that there are proper cover arrangements. What we are moving to here is compulsion, penalties and dismissal. It will have the complete opposite effect to what the Minister has said.
Lord Collins of Highbury
“(1A) At least one month before making regulations under section 234B, the Secretary of State must publish indicative minimum service levels for any service that the regulations will provide for.”Member’s explanatory statement
Requires indicative minimum service levels for any service to be set out before regulations can be made for that service.
Lord Collins of Highbury (Lab)
This is going to be relatively easy to deal with, because the Minister has already given us an answer on the previous group. Actually, the answer he gave us is the reason I have separated out this amendment—I think it reflects something else that committees of this House have been extremely concerned about, certainly in the two reports that my noble friend Lord Hendy referred to earlier. When our Delegated Powers and Regulatory Reform Committee reports, it reports in a timely way that ensures that when Parliament and this House consider legislative proposals, we are informed. That information is also governed by the Government’s response.
The Bill has gone through the Commons stages with very little scrutiny and lands up here. We have three detailed reports on this piece of legislation, all of them fairly critical, as in paragraph 23 of the Delegated Powers and Regulatory Reform Committee report. There is only one example of what a minimum service level might contain, which is the service in the transport sector, so everything else has been completely ignored. There are no examples; there is nothing we can assess to see how these powers we are being asked to give to Ministers may be used. The Delegated Powers Committee’s response is that if they do not tell us, we should not give them the power. When are the Government going to properly respond? I insist that they respond as quickly as possible, well before any sort of timetabling for Report. It is fundamental to our democracy that the Government respond to the requirements of Parliament. It is outrageous that they have not done so already. I beg to move.
Baroness Chakrabarti (Lab)
My Lords, this is neither a wrecking amendment nor a probing amendment; it is a most reasonable amendment. Why? Because some of us who have constitutional concerns about skeleton Bills and Henry VIII powers do so because, even with affirmative procedure, Members of Parliament and Members of your Lordships’ House are not able to amend secondary legislation, unlike Bills. The ability to improve the legislation just is not there. If that is going to be the case here, because we cannot persuade Ministers that these matters, if necessary in extremis, should be dealt with in primary legislation, what are we going to do instead?
If there is to be any possibility of improving minimum service level agreements and the regulations that impose them, there needs to be a statutory amount of time on the face of the primary legislation so that parliamentarians, while they will not get the process they get when a Bill goes through Parliament, will know that they will have at least a month to look at what is proposed and then try to speak to Ministers, write to Ministers and raise questions in each House. That, in some small way, would be an attempt to compensate for the fact that this is not primary legislative procedure with the ability to table amendments, divide the House and so on. This seems totally reasonable to me and a constructive amendment in the face of these Henry VIII powers that have caused such concern to the various august committees and the noble and learned Lords who normally sit with the noble Lord, Lord Hogan-Howe—he is a bit lonely at the moment. It is totally reasonable.
I cannot understand what the objection could be to just being clear, even if informally, that there will at least be this amount of time to be able to improve the regulations. I think Hansard will record that the Minister, in answer to me on a previous group—it may have been a slip—said that Parliament can improve the regulations. Actually, it cannot, but by this kind of stipulation it could, at least informally, make its attempt.
Lord Fox (LD)
My Lords, this is something of an hors d’oeuvre for the next group, so I will save my comments on this issue—although I thoroughly agree with the noble Baroness—for Amendment 37, which I consider to be a meatier version of the same issue. This is clearly starting the move to the territory where we give Parliament the opportunity at least to scrutinise, if not amend, what comes before it. We will come to more of that in a few minutes.
Lord Hendy (Lab)
My Lords, at the risk of saying what I said earlier, if this amendment is not accepted by the Government, that presents a problem to the whole House as to what is to be done about Bills that do not conform to the elementary requirements of various committees, where detail is not published in the Bills but reserved to regulations. That problem will have to be confronted if the Government are not prepared to accept this very modest amendment, as my noble friend Lady Chakrabarti put it.
Lord Callanan (Con)
I thank noble Lords for their contributions to this debate. To start with the question from the noble Lord, Lord Collins, about the Government’s response to the reports from the Delegated Powers Committee, the Constitution Committee and the Joint Committee on Human Rights, I am happy to confirm that I expect to be able to respond to those reports before Report.
This amendment tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, requires indicative minimum service levels to be set out before regulations can be made for that service. The Government recognise the importance of relevant parties having sight of a minimum service level before it is applied. That is why Secretaries of State must consult on minimum service level regulations and why Parliament will have an opportunity to contribute to the consultation and scrutinise those regulations, which are subject to the affirmative procedure, as I have said before.
The effect of this amendment is superfluous, given that all parties will be able to know the proposed minimum service levels once regulations are laid in the usual way. This approach ensures that the implementation of MSL is not significantly delayed, thereby not extending the disproportionate impact that strikes can have on the public. I am sure that the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, will understand, if not agree, why the Government cannot accept the amendment.
Lord Collins of Highbury (Lab)
In light of those comments, I beg leave to withdraw the amendment so that we can move on to the next group, where we will have a much more comprehensive debate.
Lord Fox
(4A) The Secretary of State must lay before Parliament—(a) a draft of the regulations, and(b) a document which explains the draft regulations.(4B) Where a draft of the regulations is laid before Parliament under subsection (4A), no statutory instrument containing the regulations may be laid before Parliament until after the expiry of the 30-day period.(4C) The Secretary of State must request a committee of either House of Parliament whose remit includes either the wider UK workforce and industrial relations, or the sector to which the regulations relate, to report on the draft regulations within the 30-day period. (4D) In preparing a draft statutory instrument containing the regulations, the Secretary of State must take account of—(a) any representations,(b) any resolution of either House of Parliament, and(c) any recommendations of a committee under subsection (4C),made within the 30-day period with regard to the draft regulations.(4E) If, after the 30-day period, the Secretary of State wishes to make regulations in the terms of the draft or a revised draft, they must lay before Parliament a statement—(a) stating whether any representations, resolutions or recommendations were made under subsection (4D),(b) giving details of any representations, resolutions or recommendations so made, and(c) explaining any changes made in any revised draft of the regulations.(4F) The Secretary of State may make a statutory instrument containing the regulations (whether or not revised) if, after the laying of the statement required under subsection (4E), a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(4G) In this section, references to “the 30-day period” in relation to any draft regulations is to the period of 30 days beginning with the day on which the original draft regulations were laid before Parliament.(4H) For the purposes of subsection (4G) no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.”Member’s explanatory statement
This amendment seeks to provide Parliament with the opportunity for enhanced scrutiny of the regulations made under this section.
Lord Fox (LD)
My Lords, Amendment 43 in this group is also in my name. In a sense, this provides a more general debate, to which the noble Lord, Lord Collins, has given us an amuse-bouche.
Amendment 37 introduces a super-affirmative process, the need for which the noble Baroness, Lady Chakrabarti, referred to, although not in those same words. Those noble Lords who have participated in the same Bills as me will be familiar with this format, because I have brought it to several Bills—indeed, I am doing so concurrently. I did not invent this process, but I feel that it is a very good way of giving Parliament a sense of ownership and oversight of the sort of things that we are talking about today. It seeks to provide Parliament with the opportunity for extended scrutiny.
Lord Prentis of Leeds (Lab)
My Lords, I speak in support of this group of amendments, particularly Amendments 42 and 44, which, if agreed, would remove the unfettered power of the Secretary of State to amend, repeal or revoke primary legislation.
The strikes Bill is not a slight tinkering of existing legislation. What the Committee has before it is a far-reaching Bill. It is a draconian Bill which curtails the fundamental right to strike, weakens protections against unfair dismissal, violates ILO standards, and introduces the possibility of front-line workers facing dismissal for taking part in lawful industrial action. What we also have before us is a skeleton Bill, which until now has had little or no scrutiny—a Bill which has been rushed. It has been described as having Henry VIII clauses on supercharge and, as we have just heard, as a skeleton Bill lacking bones.
It is only 10 weeks since I had the privilege of making my maiden speech in support of two House of Lords committee reports which go to the core of our democracy: Democracy Denied? and Government by Diktat. In that debate, I spoke of the public’s growing distrust of our Parliament, not just in the devolved nations but throughout the UK. I acknowledged that the reasons for this were complex and that concern about the increasing use of statutory instruments was not something you would hear discussed in the pub or the supermarket, or even around the breakfast table. So why does it matter?
It matters because the processes of Parliament through which we govern are so important. They instil trust and confidence in our democracy. Secretaries of State who avoid parliamentary scrutiny call into question that very trust and confidence in our whole institution. It matters because global confidence in our economy is intrinsically bound up with confidence in our democratic traditions, and it matters because skeleton legislation could lead to the very government by diktat that noble Lords of all persuasions have set their stall against.
That is why the Bill we have before us today is so fundamentally flawed. It flies in the face of both those reports and, unless amended, it will give unfettered powers to the Secretary of State to revoke or amend primary legislation through regulation. That is why Amendments 42 and 44 are so important.
The Bill is deficient in so many respects. It is vindictive and divisive, and it does nothing to deal with the serious crises our public services are facing. The report of the Regulatory Policy Committee, which we have heard about, states that the Bill is not fit for purpose—a damning indictment by any standards. NHS Providers states that it will undermine partnership working in the NHS. The Joint Committee on Human Rights criticises the:
“Heavy-handed sanctions … compounded by vague rules”.
Comparisons made with other European countries simply do not stack up and have been roundly dismissed by those countries themselves. If the Bill becomes law, there is a real risk of contravening our international obligations. For me, it is simply unnecessary and harmful.
In the last few weeks we have seen public service workers, their unions and employers coming together to reach agreements, trying to help so many workers and their families who are suffering. Yes, it may have taken far too long, but both sides are now at the table, doing what they do best: talking, negotiating, reaching accommodations, finding ways forward and, most of all, working to restore relationships for the future. This Bill will damage all that good work. It is vindictive and malicious and it will set the scene for conflict and retaliation for the next decade, just at a time when there is light at the end of the tunnel.
I ask the Minister to accept Amendments 42 and 44. Failing that, I ask him to explain why he will not. More than that, I ask him to think again. Surely it is time for the Government to reconsider their position on the Bill and put it on the back burner, where it deserves to be.
The Lord Bishop of Manchester
My Lords, I support Amendments 37 and 43 in the name of the noble Lord, Lord Fox.
Many noble Lords have already commented on the Bill’s skeletal nature—I will not repeat their comments here. Amendment 43 would insert an invaluable safeguard, removing overreaching Secretary of State powers to amend, repeal or revoke primary legislation through secondary legislation. Liberty writes that, as it stands, Clause 3 is a “broad Henry VIII power”—we have heard that monarch referred to several times today; I fear I may refer to him again in a moment. It is also a prospective power that allows the Government to amend and revoke legislation not yet passed.
The delegated powers memorandum seeks to justify this power as a prudent provision to deal with any necessary consequential amendments identified in the Bill’s preparation. As the noble Lord, Lord Fox, reminded us, this means that the Government are taking this exceptional power either because they are not sure what they want to achieve or because they do not know how to get there. I do not believe either of those to be an adequate justification, and I am delighted to hear that Jacob Rees-Mogg may be of a similar opinion.
I enjoyed the remark of a noble and learned Lord earlier today that this is “Henry VIII on stilts”. It left me wondering whether I should be imagining the young Henry, fit and active, or the monarch in his latter—shall we say rather less athletic?—years. The older Henry would have crashed off his stilts to huge personal injury and embarrassment. I fear that the Bill, if enacted in its present form, without adequate parliamentary scrutiny of the exercise of these Henrician powers, will be an equally damaging and embarrassing moment in our nation’s governance.
Will the Minister please reflect on these probing amendments and come back to this House on Report with something more fit for the role and responsibilities of this kingdom’s Parliament in the reign of Charles III?
Lord Collins of Highbury (Lab)
I will talk to our Amendments 42, 44 and 45; I also support Amendments 37 and 43. My noble friend Lord Prentis mentioned the debate we had on the reports from the Secondary Legislation Scrutiny Committee and the Delegated Powers Committee, Democracy Denied? and Government by Diktat. The two chairs of the committees at the time led the debate and reflected opinion across the House. The noble Lord, Lord Blencathra, said that this is a trend: these are not just technical statutory instruments but impinge on people’s fundamental freedoms. The noble Lord, Lord Hodgson, reminded us, and it has been repeated many times, that these are fundamental policy positions that can be debated and considered but not amended or revised. They cannot reflect all the things we have been talking about, particularly consultation.
Lord Callanan (Con)
My Lords, as I set out in the previous group, which the noble Lord, Lord Fox, described as the amuse-bouche grouping, there are already sufficient checks and balances built into the legislation before any regulations can be made. These include the need to carry out consultations with key stakeholders, including employers, employees, relevant trade unions and their members, who are all encouraged to participate in the consultations—we have some of the regulations out for consultation at the moment—and have their say in setting minimum service levels before they come into effect.
Parliament, including Select Committees, will also have an opportunity to contribute to the consultation and scrutinise the regulations. The Government firmly believe that this is the right approach. It ensures that a wide range of views can be gathered. Parliament can scrutinise regulations without significantly delaying the implementation of MSLs and therefore extending the disproportionate impact that strikes can have on the public.
Amendments 42 to 48 all seek to amend the provisions to make consequential amendments. The Government resist these amendments on the grounds that Clause 3 is a fairly standard clause, used regularly in primary legislation. Let me explain to the Committee what it is for. The power to amend primary legislation within the clause is a standard power with standard wording. Perhaps it will be helpful to give some examples of where it is on the statute book already. It is in Section 182 of the Health and Care Act 2022, Section 47 of the Corporate Insolvency and Governance Act 2020, Section 23 of the Bus Services Act 2017—I am sorry that the noble Baroness, Lady Randerson, is not here to hear that—and Section 66 of the Children and Social Work Act 2017. This power is not unique to legislation introduced under a Conservative Government. I say to the noble Lord, Lord Collins, that Section 51 of the Constitutional Reform and Governance Act 2010 also includes the same power. Additionally, the report, The Legislative Process: the Delegation of Powers, published by the Lords Select Committee on the Constitution in 2018, states:
“Delegating power to make provision for minor and technical matters is a necessary part of the legislative process … Delegated legislation, which is subject to less parliamentary scrutiny, should only be used to fill in the details.”
That is exactly what this power is intended for.
I remind noble Lords that the DPRRC did not draw attention to or raise concerns about this delegated power in its report published on 2 February. I know that it did on others, but it did not with this one. The power may be used only to make amendments to other legislation that are genuinely consequential on this Bill. It is there purely to ensure that the legal provisions within this Bill can be maintained after they have received Royal Assent. Therefore, the Committee will understand why I cannot support these amendments.
Amendment 48 seeks to remove the power for the Secretary of State to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd. The Government again resist this amendment on the grounds that the provisions of this Act will extend to England and Wales and Scotland. Employment rights and duties and industrial relations are reserved in respect of Scotland and Wales. Therefore, it is right that the Secretary of State has the power to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd, if required to ensure that the new legal framework operates in a coherent way across the entirety of Great Britain.
The disproportionate impacts that strikes can have are no less severe on people in Scotland or Wales than they are in England. They have every right to expect the Government to act to ensure that they can continue to access vital public services during strikes. The Government will of course engage with the devolved Administrations as appropriate. I have met devolved Ministers to discuss the Bill. Obviously, we will engage further if any consequential amendments are required to Acts of the Scottish Parliament or Welsh Assembly. As this clause is completely standard and has been introduced in several pieces of legislation, including by a previous Labour Government, I hope that noble Lords will feel able to withdraw or not move their unnecessary amendments.
Turning to Amendments 45 and 46, I believe that the intention of the noble Lord, Lord Collins, is to delay the commencement of regulations providing for minimum services until the Government have assessed the Bill’s impact on recruitment and retention in the public and private sectors, and the impact on those with protected characteristics. However, the amendments as drafted are to Clause 3, which provides a power to the Secretary of State to make consequential provision. Therefore, the amendments would delay commencement of regulations which make consequential amendments to other legislation.
Speaking to what I believe is the intended purpose of the amendment, I say that the Government resist it. As I have already set out in my response to the noble Lord, Lord Fox, the Secretary of State must consult on regulations, and they must be approved by both Houses before they can be made.
Impact assessments will be published for all subsequent regulations on minimum service levels and will, as always, contain a public sector equality duty assessment. I also draw noble Lords’ attention to the already published impact assessments for the Bill and currently ongoing consultations on establishing minimum service levels in ambulance, fire and rescue, and rail services, all of which contain public sector equality duty assessments. I hope that I have convinced noble Lords to withdraw and not move their amendments.
Lord Fox (LD)
I thank noble Lords for their contributions to the debate on this group. I am particularly grateful to the right reverend Prelate the Bishop of Leeds for painting a picture of King Henry VIII strutting across the Field of the Cloth of Gold on a pair of stilts.
Lord Fox (LD)
What an awful mistake to have made—I am very sorry and correct the right reverend Prelate’s territory. This is a serious group of amendments. The fact that it comes at the end of a day, and a long week, should not detract from that seriousness.
Listening to the Minister’s response, I was struck by the tone, which is: “This is a perfectly reasonable process. We are having a consultation and doing this and that. These people can contribute, and Parliament can contribute through the consultation”. It is for Parliament to make these decisions—not for the Government to do so, allowing Parliament to feed a little into the process.
The Minister has proposed the particular frame that we see in Clause 3 too many times. He went through a short list of Bills. I am aware of two of those, having participated in them, and I spoke against that power on both occasions. None of those is seven pages long and devoid of the detail required, but that is what the Bill is.
Baroness Chakrabarti (Lab)
Surely all these other Bills consist of a bit more than two delegated powers. That is what this Bill is.
I am beginning to feel sorry for Henry VIII. He was born a King and born to rule. I am thinking more of Julius Caesar, who was supposed to be part of a republic and led to its demise so that it became an empire. How did he begin that process? It was by diktat, by becoming a dictator. Powers such as this pave the way for that.
Lord Fox (LD)
I thank the noble Baroness, who has now introduced history; having failed geography, I will not enter into the history debate. She is completely correct: these powers are being taken for a Bill that is nothing. For the Minister to use the examples he did was completely inappropriate: they are different Bills of a different nature and scale.
We look forward to the Minister’s official response. I think he promised a letter on the DPRRC. I will study Hansard carefully on this. As the noble Lord, Lord Collins, put it, we will be doubly resolved that this issue cannot be left in Committee. We will certainly come back, unless the Minister’s letter turns out to be better than I normally expect. That said, as usual, I beg leave to withdraw.
Lord Hogan-Howe
“Review: extending restrictions to other services
(1) Within the period of one year beginning with the day on which this Act is passed, the Secretary of State must review the extent to which this Act has achieved its objectives.(2) The review must consider whether it would be expedient to enact further legislation applying the restrictions provided for under the Schedule to other services, in particular, services that support police services, including forensic investigation services and telephone call handling services.(3) On completing the review, the Secretary of State must lay a report before Parliament.”
Lord Hogan-Howe (CB)
Amendment 48A is tabled in my name and that of the noble Lord, Lord Greenhalgh. I am conscious that it is the last amendment, and I will be brief. I mean it; I do not intend to take too long. I know this has been a big political debate, as has been demonstrated today. My reason for this amendment is not to do with whether the Bill should be here or whether there should be a minimum standard; it is to do with who should be on the list if the Bill becomes an Act.
The reason why I became interested this is twofold. First, in the list of services that are to be included we have ambulance and fire, but the police are excluded, and clearly they are one of the three emergency services, so I was intrigued by that; it seems odd. Secondly, that has been compounded to some extent by the Home Office’s response, for which I will say thank you in a second. I do not think it appreciates the fact that the civilianisation, which is what it is termed, of the police over the past probably 20 years has been a really good thing. It has taken cops out of doing things that they do not need to do and has put people who have better skills in to do them. We have moved from a situation where probably 90% or so of the police were police officers, to a stage now where probably nationally about two-thirds are cops and one-third are “police staff”, which is the term now used for civilianisation. Those people have some incredible skills and are part of the delivery of front-line service. They are not merely, important though it is, support. They are part of the front line.
I am grateful to the noble Lord, Lord Callanan, who is no longer in his place, for referring my queries in two places to the Home Office, and I am also grateful for the response to my query from the noble Lord, Lord Sharpe, which I received yesterday. Even though I received it yesterday, I have not withdrawn my amendment from the Marshalled List as I do not think it really addressed my concerns. I raised two particular groups of police staff whom I thought were representative of the front line, but they are not the only two I could have raised. One was call handlers and the other was forensic scientists and forensic specialists, because I thought they were the easiest to sketch out quickly, but I want to touch briefly on some of the groups I could have mentioned.
The letter I received talked about call handlers only, and I was not persuaded by it for this reason. Of the Metropolitan Police, which has around 50,000 people even now, around 1,500 of them—probably nearer to 2,000—are call handlers. You could argue that that is only 4% of 50,000, but when the Home Office responded on how we can rely on the call handling still happening if police staff withdraw their labour, it assumed that police officers were going to backfill. There are problems with that assumption. First, 1,500 is quite a large number, and it is 1,500 not of the 50,000 but 1,500 front-line police officers. There are probably around 17,000 of them, so we are down to find about 10%. My concern is not just the fact that you would have to take them off the front line to backfill for call handling; you have to train them. They do not have the skills. They cannot do what I used to do, which was merely use the radio, answer the phone and make a written note. You now have to use a computer to work the radio; you have to use a computer to record all the data. There are an awful lot of things you have to be able to do before you can work in a control room. It is not as simple as going there and working. You cannot train someone in one year and then for five years, say, they do not do anything but they just turn up on a Monday and do it.
Secondly, we are talking about a very significant number of calls. Annually in England and Wales there are more than 20 million telephone calls with people in life-threatening situations or, at the other extreme, things that may not be life-threatening—but you do not know until you answer the phone which it is. It is essential that phones are answered and, frankly, it is the main way that people in this country still access police services. I know that there are more online options but, for an emergency, you are going to ring. That call has to be answered, which is why I majored on it.
In forensics, the number of these people is smaller but very significant. There are probably three levels of service provider: the people who go to the scene of the crime and collect the evidence at the scene; the people who work in the lab; and the specialists who try to interpret the results of the first two. They have substantial skills and are very well qualified, and there is now a forensic-accredited regulator. It is impossible for cops to go in and do that job. At the moment, I do not know the exact number of them—the Home Office might possibly mention this in the reply—but I suspect that 98% to 99% of people in forensics are police staff, quite properly. This means that it does not have the skills and it does not have the numbers, and so really is struggling. You could argue that, for a few days, this may not matter too much, but it matters for those low-volume serious crimes, such as murder and terrorism—I will not go through the list as noble Lords will know what is on it. It seems to me pretty important that forensics is still carried out.
The third group, which I did not mention the first time, is surveillance people. It used to be that police officers were the only people who did surveillance, but that is not the case now. Many forces in the country have police staff who are part of the surveillance teams. The argument goes that, if you do not need to arrest someone, why do you need police powers? That is quite right. If you have good observation skills, and are good at noting detail and at blending into the background, that is even more reason why you do not necessarily need to be a police officer. However, it is a big issue because the surveillance teams are employed only on serious crimes—they are not employed for minor crime; they will be used only for serious crime because it drags in so many resources. Without going into numbers, you are talking about significant numbers to get a surveillance team on the ground. It is important that that is still possible.
The final area is one that we do not talk about much in public but one to keep in mind. When you are dealing with serious crime, from terrorism to murder to other serious crimes, one technique involved is listening to telephone calls—surveillance and intercepting. If there is a threat to life, that will be within 24 hours, and probably seven hours a day. Someone has to do it, and it is now members of police staff will carry that out; there is no need to be a police officer.
I mentioned those series of examples, but the response from the Home Office talked only about call handlers. For the reasons I have set out, the response did not fully reassure me.
Noble Lords might be grateful to know that this is my final point. I mentioned in the Cross-Bench meeting my worries about the coastguard service, and the noble Lord, Lord Callanan, faithfully reported that back to the Home Office. People who do not live on the coast often forget that the only way you can co-ordinate the rescue of people at sea by people who are on land, in the air or on the water is through the coastguard. It has the facilities to communicate and map out where people are. It is no good talking to a police control room; it does not understand how things move around on the sea.
The coastguard service is vital, every day. It co-ordinates the lifeboat charity, the outsourced helicopter service, the police, ambulance service and fire service—we all know the people who get involved—and the coastguard who patrol at that point. If the coastguard is not there, I am not sure who the fallback is. It may be that there is a military option but the military has been pared back so significantly that it does not have coast-wide coverage for this reason. It may have coast-wide coverage for defence but I am not sure it has it for rescuing people and for the co-ordination of all the services involved.
I think it is worth considering these people when we talk about life-saving options and emergency services. There was a choice of two services other than the police, but I say that the coastguard service should be considered seriously. As I said, I was not reassured entirely by the Home Office’s reply.
Lord Greenhalgh (Con)
My Lords, I support the noble Lord, Lord Hogan-Howe. As the deputy mayor for policing and crime alongside him when he was a very distinguished commissioner, I always defer to his operational understanding. This is someone who led a very large service and understands the constraints that would occur if we saw a withdrawal of labour from these very specialist police staff who do more than just support police officers on the front line.
I draw attention to the fact that there is a real inconsistency here. As a former Fire Minister I am delighted to see that fire is included when it comes to call handling, and as the son of a surgeon I am delighted to see that the London Ambulance Service and other ambulance services are included in the Bill. Let us take London call volumes as an example, to give a sense of the order of magnitude. The Met answers 13,000 calls a day, which is nearly 5 million calls a year. The London Ambulance Service answers just over 2 million calls a year, while for the fire service it is probably nearer to 150,000 calls a year. We need parity when it comes to our three blue-light services, particularly because, as the noble Lord, Lord Hogan-Howe, put it, some of these calls are about wheels moving fast to save lives, even if they do not always know that is the case. I just do not understand not having the same approach to all three blue lights.
The noble Lord also raised forensics. The clear-up rate is about 95%—I hope that is still true—for murders in our capital city. That is largely down to a team effort that includes the use of forensics, and we have just heard about the importance of surveillance in tackling crime.
I think that even at this late stage we should consider the police service within those public services where we require a look at minimum service levels. It makes intellectual sense, and I know that at this stage we could introduce these amendments. Based on the response from the Home Office, we will see whether we bring this back on Report in the right part of the Bill—we were a bit late tabling the amendment, for various reasons.
It makes sense to have parity between the three blue lights. That is why I support the noble Lord, Lord Hogan-Howe. As deputy mayor, I always knew to defer to his operational excellence.
Lord Fox (LD)
My Lords, we are not particularly in the business of adding people to this Bill. If the noble Lords had attended all our sessions, they would have heard that we are not terribly appreciative of the Bill’s objectives, nor the way in which it goes about them. But I am grateful to the noble Lords for highlighting, as we pointed out earlier, the curious selection of services. We particularly questioned the decommissioning of nuclear installations, for example, where voluntary agreements already exist on a pretty comprehensive scale, so why is this in there?
I am also grateful that they have attracted a Home Office Minister here to answer the question. My question for him is: how much consultation was held with the Home Office by what was then BEIS, which drew up the Bill, about choosing who was on this list, and indeed who was not, when it came to drafting the legislation? That would be an interesting point.
I could not resist pitching in on forensic services. As the noble Lord, Lord Hogan-Howe, knows, since the change in the whole service, essentially its privatisation, a large lump of that service went into the police force—I was going to say it was “captured”, and that is not supposed to be in a pejorative sense. In the Metropolitan Police, a huge proportion of what was often delivered externally to the police force is now being delivered internally; I think it is around 80% in the case of the Met. That leaves 20% of the service coming from private sector providers and what I call specialist suppliers, which are often academics or people who have set up organisations. I suggest that it is much harder to make those two types of supplier fall within the remit of what the noble Lord envisions, given the debate we have had about involving private sector suppliers in the health service or transport. That debate has clouded how this would operate. Still, a large proportion of the forensic service is within the police ambit when it comes to management.
With those notes, the key issue is to ask the Home Office why fire and rescue is in but the police are not. What consultation process did that go through, and how did the decision come about? We would be interested to see inside the box.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, I get the impression that the noble Lord, Lord Hogan-Howe, did not necessarily want to associate himself with the whole Bill, but was asking questions about who was included and excluded and why.
From our Labour perspective, one of the key worries about the Bill has been: are we going to see executive powers taken to add in sectors at different stages without proper scrutiny, proper accountability or consultation? Many see this as an attempt to ban strikes, a fundamental human freedom, through the back door. It might get to the stage where it would be easier to have a list of sectors not covered as opposed to those that are.
We oppose this amendment; fundamentally, because it fails to address the root causes of the problems people face. I hesitate to advise the noble Lord, who knows far more about this than I do, but since 2010 we have seen police funding cut by £1 billion. We have seen huge cuts to police officer numbers of 20,000 and a similar number of support staff being cut. In the Casey report, it was pointed out that those cuts in support staff were having a direct impact on police officers, who were having to cover that work too and that impacts the effectiveness of the service.
It seems to me that these are far bigger issues at a time when so many staff in the police service and elsewhere are facing real-terms pay cuts year after year, which have a real impact on morale, recruitment, retention and our ability to deliver the high-quality service that we all want to see. My sense is that it would be much better to focus on tackling the root causes of concern and discontent rather than suppressing the symptoms.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
I thank all noble Lords for their contributions to the debate and in particular my noble friend Lord Greenhalgh and the noble Lord, Lord Hogan-Howe, for their amendment.
This amendment seeks to require the Government to undertake a review into whether and to what extent the legislation has met its objectives and whether the legislation should be extended to additional services, particularly police support services. On completion of the review, the report would be laid in Parliament. The Government are committed to reviewing the impact of the Bill within five years of when the first secondary legislation comes into force. Given that the detail of minimum service levels will be set out in the regulations that follow the Bill, this is an appropriate approach and timeframe.
On the specific point about extending the Bill to additional services, it is worth repeating that the key sectors covered by the Bill are broadly the same set of services that were listed as important public services in the Trade Union Act 2016, which have long been recognised as being important for society to function effectively. The 2016 Act did not include policing, in part because the prohibition on police officers taking strike action meant that this was not felt necessary.
Police staff across the country make an exceptional contribution to policing and we are grateful for the professionalism and dedication they show in their work. Police staff, including police community support officers and other members of the police workforce who do not have warranted powers, have no restrictions on their right to take industrial action and there are no provisions currently in place to provide minimum service levels. However, chief constables have a statutory duty under the Civil Contingencies Act to ensure that plans are in place to maintain key services when instances such as a strike occur. When police staff have taken strike action in the past, police forces have put in place plans to ensure resilience among their police officer workforce to ensure that essential front-line services are maintained.
Baroness O'Grady of Upper Holloway (Lab)
Similar responsibilities apply in the fire service, in respect of the Civil Contingencies Act, so why is it necessary to include fire services in the Bill?
Lord Murray of Blidworth (Con)
The context for the police is clearly different from that for the fire service, in that the vast bulk of police officers, as described by the noble Lord, Lord Hogan-Howe, are covered by the provisions of the earlier legislation precluding them from striking. As we discussed, this puts them and the force in a different category.
Contingency plans are largely based on the redeployment of police officers to cover operational staff roles. Police officers are of course prohibited from participating in strike action and, therefore, chief constables are able to meet any such obligations under the Civil Contingencies Act. I hope that goes some way to address the points raised by the noble Lord, Lord Hogan-Howe. The Government currently have no intention to add to the sectors covered by the Bill, and any future amendments would require separate primary legislation.
Lord Hogan-Howe (CB)
The Minister’s point—that arrangements are being put in place for police officers to backfill—is fair, but there are two problems: if you have fewer and fewer cops who can be in the control room all the time, you have to keep them trained, and then you have to withdraw them from the street, which is a significant diminution. First, if you have to train them every year, that costs money and takes time—and then you presumably have to withdraw them when there is some kind of action. For me, it is not a reassuring answer to say that police officers can just backfill, because I am afraid that they cannot without training or experience in this vital part of the service.
Lord Murray of Blidworth (Con)
The contingency plans are of course already enabled in the Civil Contingencies Act and, although this situation would be less preferable than the one that prevails in a non-strike scenario, it would be successful in the Government’s view. Furthermore, in the event that police staff take strike action, or when they have taken strike action in the past, police forces will or have put in place plans to ensure resilience among their police officer workforce, to ensure that essential front-line services are maintained. However, as noble Lords would expect, we will keep under review the sectors that we are discussing in this debate, and will not hesitate to take further action if we judge that necessary.
I will briefly address some of the specific points raised by noble Lords. Clearly, from the Government’s perspective, we accept that the points raised by the noble Lord address a broader class of people—of police auxiliaries, if I might style them like that—than just those in call handling. Of course, he made a good point that this goes across the piece; the vital work done by broader police staff is something we should consider.
The noble Lord raised points in relation to His Majesty’s Coastguard. I confirm that the Department for Transport is still considering which other sectors minimum service levels may apply to. Therefore, the position on applying MSLs to coastguard services will be kept under review, and any decision regarding these services will of course be subject to consultation. Similarly, my noble friend Lord Greenhalgh made some powerful points about the importance of auxiliary staff in this context, and I take those very much on board.
As to the points raised by the noble Lord, Lord Fox, I can confirm that there was consultation with other government departments prior to the selection of the list described in the Bill.
Turning to the points made by the noble Baroness, Lady O’Grady, this is clearly not an attempt to ban strikes. The key sectors covered in the Bill are broadly the same set of services as those listed in the Trade Union Act 2016, which have long been recognised as being important for society to function effectively. Strike action in these sectors has the potential for far-reaching consequences for members of the public who are not in any way involved in the dispute, and it is only right that these sectors are included within the scope of the legislation.
For all those reasons I invite the noble Lord to withdraw the amendment.
Lord Hogan-Howe (CB)
I am grateful for the Minister’s reply and for the contribution of other noble Lords. I was not sure whether the Minister said that the Home Office or other departments had been consulted, but I will let that rest. I am grateful for the consideration and take his point that there will be further review in due course, be it the police or the coastguard. I am content to withdraw the amendment.