Strikes (Minimum Service Levels) Bill

Consideration of Commons amendments
Tuesday 4th July 2023 Lords Chamber

Commons Reasons

Correspondence from the Senedd published.

15:21

Motion A

Moved by

[Lord Callanan]

That this House do not insist on its Amendment 2B to which the Commons have disagreed for their Reason 2C.

2C: Because the Bill already contains adequate provision for consultation and parliamentary control of regulations made under it.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, in moving Motion A, with the leave of the House, I will speak also to Motions B and C.

The Bill returns to us once again from the other place. That House has been consistently very clear, for the second time now, that it is firm in its position on the remaining three amendments. When we were last here, this House asked the Commons to reconsider its position and, unsurprisingly, it has reached exactly the same conclusion as it did previously. Indeed, it has done so by greater majorities than before and, in some cases, by the greatest majority that we have so far seen on the Bill. Therefore, I propose Motions to accept the Commons position on the Bill and give way to the elected House.

We have discussed these amendments in detail throughout the Bill’s passage. The Government’s position remains that they cannot accept amendments which would delay the implementation of this much-needed legislation or, indeed, render it entirely inoperable. The Government have been clear in both Houses that they are willing to consider providing clarity on the nature of the “reasonable steps” which unions are expected to take to fulfil their obligations under the Bill. This is a significant issue, which I know a number of Members of this House have raised throughout the Bill’s passage. However, as yet, we have not had any indication that this would be widely supported.

Amendment 2D significantly expands on previous versions of Lords Amendment 2 in a way that will not, I believe, add to the effectiveness of the regulations. The Government have already undertaken public consultations on their intentions to bring forward minimum service levels for passenger rail services, ambulance services and fire and rescue services. We will bring forward regulations for approval in Parliament in due course. This is an entirely reasonable legislative approach enabling the Government to consider all relevant factors, including our international obligations, while at the same time ensuring that minimum service levels are introduced in good time.

I remind the House that, as the Government have made clear through the passage of the Bill, employees will lose their automatic unfair dismissal protection for going on strike in contravention of a work notice only if they receive notification from the employer that they are required to work under a work notice and notification of the work that they must carry out. Finally, impact assessments will be published alongside the final regulations.

I am sure that the noble Lord, Lord Collins, will acknowledge that the effect of his amendment would be to delay significantly the implementation of minimum service levels, given the additional and lengthy consultation and parliamentary requirements; I heavily suspect that that is probably its purpose. On behalf of the Government, I must therefore resist it today. I hope that the noble Lord will not feel the need to put it to a vote.

This amendment remains unnecessary and would delay the implementation of this vital legislation, which is designed to protect the public from the disproportionate impacts of the ongoing strike action. I therefore ask noble Lords to support the Government’s Motions on the Order Paper today. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

[Lord Collins of Highbury]

At end insert “and do propose Amendment 2D in lieu—

2D: Page 3, line 31, at end insert—
“(5) Minimum service regulations may only be made if—
(a) the Secretary of State has published draft regulations;
(b) the Secretary of State has consulted the International Labour Organisation and given due consideration to such advice as it has proffered;
(c) the Secretary of State has conducted an impact assessment of the effect of the draft regulations on the services to which the draft regulations relate, addressing, in particular, the effect—
(i) on the general public;
(ii) on the conduct of these services;
(iii) on the conduct and effectiveness of the exercise of the right to strike in those services;
(d) the Secretary of State has conducted a consultation with the representatives of trade unions, employers and any other interested party on the draft regulations and on the matters to be addressed by the impact assessment and, in particular, on whether the draft regulations should or do sufficiently provide, so far as possible under section 234F(2)(a), for protection of workers who do not receive a work notice or fail to comply with it, and for the identification of the “reasonable steps” which a union must not fail to take under section 234E and those which it is reasonable for it not to take;
(e) the Secretary of State has laid before Parliament a report on any advice proffered under paragraph (b) and the consultation under paragraph (d);
(f) the Secretary of State has placed before a Joint Committee of both Houses of Parliament, convened for the purpose of reviewing them, the impact assessment under paragraph (c) and the report under paragraph (e) and the Joint Committee’s review has been published in a report to Parliament.””

[Lord Collins of Highbury (Lab)]

My Lords, I am proposing an unusual but reasonable step in relation to this Bill. As noble Lords have heard in previous debates on the Bill, Labour is committed to repealing what we believe to be a very bad piece of legislation. Employers, unions, the devolved nations and service users have expressed opinions against the Bill. However, my argument today will focus on the consequences of this piece of legislation, which have not, I believe, been thought through or properly addressed either by the Government or in the impact assessments.

The consequence of exercising the human right to withdraw labour is now, as the Minister confirmed, the removal of protection against unfair dismissal. The consequence for a union complying with rigorous balloting requirements for an official dispute is now to lose its protection against action in tort. We sort of knew that this was coming because the Joint Committee on Human Rights concluded that the penalties for employees and unions who do not meet the Bill’s requirements are severe. It stated that they

“amount to a disproportionate interference with Article 11”

rights of the ECHR on assembly and association. Of course, as the committee said, the Minister responded on those human rights by saying that the Government rejected the committee’s findings and recommendations. They felt that this piece of legislation was compliant.

Since noble Lords considered this piece of legislation, last month, the ILO’s Conference Committee on the Application of Standards called on the United Kingdom Government to

“ensure that existing and prospective legislation is in conformity with the Convention”—

that is, Convention No. 87, which governs freedom of association and protection of the right to organise.

15:30

The committee has also issued a rare instruction for Ministers to seek technical assistance from ILO staff and report back on progress in September, in addition to seeking more consultation from unions and employers. This is precisely why I am arguing that your Lordships should consider sending this back. We want more and proper consultation. This is not simply about delaying the legislation, no matter what the Minister says; this is about having due regard to people’s human rights. The last time that the ILO intervened in this way was in 1995, when the committee called on the Government to improve consultation with social partners on legislation relevant to them.

My noble friend Lady O’Grady recently asked a Written Question on the steps that the Government intend to take following the ILO statement. The Answer stated:

“The Government believes that our trade union law complies with international conventions, including those of the International Labour Organisation (ILO).

Workers in the UK have the right to join a union and organise, this is rightly protected by law. They also have the ability to strike should they wish to. The Government believes however that taking strike action has to be balanced with the rights of others, including employers and members of the public.

We will consider the findings of the ILO report carefully and respond in due course”.

We have heard that term plenty of times in this Chamber. They should properly consult and engage with social partners in this country before putting in place a law full of unintended consequences.

Despite the repeated assurances that the Minister makes, this Bill is at variance with the experts, government employers and workers appointed in accordance with the ILO constitution to assess compliance with its conventions—a body which this Government are represented on, experts whom this Government supported the appointment of. That is why it is essential that the Government and the other place think again.

This amendment requires Ministers to do exactly what the ILO is requesting—undertake consultation when considering introducing regulations to implement minimum service levels. It sets conditions before minimum service level regulations can be considered. This includes an impact assessment, something that we all should expect, which will consider the impact on the public, the conduct of those services and the right to strike. It would require consultation with social partners, including on the protection of workers named in work notices. Today, the Minister confirmed that if someone does not comply with a notice, they will lose their protection and be sacked. This is a charter for dismissing people who take that legitimate right to take strike action. The amendment would require the relevant Secretary of State to consult with the ILO—the statement that I referred to earlier—and for a Joint Committee to consider the impact assessment and the report on consultation with social partners.

As I have heard said before in this Chamber, these steps should have been taken before this Bill was presented to Parliament. We had no looking through the consequences and developing a policy. Instead, it was, “Let’s have a skeleton Bill that people don’t understand the consequences of. Let’s put the legislation in place and consult afterwards”. We have not even had the results of the consultations on the sectors referred to in the Bill, and we are unlikely to have them until the autumn. We should not give this Government a blank cheque on such a fundamental human right which needs to be protected. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the amendment of the noble Lord, Lord Collins, is absolutely perfect for this situation. The hubris and arrogance of this Government are breathtaking. I do not understand how they can bring a Bill that does three massive things—the noble Lord, Lord Collins, was very generous to the Government because he talked about “unintended consequences”, but I do not think that these consequences are unintended at all.

The first is that it gives Ministers more power. Over the past couple of years, we have seen the Government constantly trying to give more power to Ministers and less with Parliament—less scrutiny and democracy. That needs to be challenged. Secondly, this new law undermines workers’ rights and could even punish workers who are genuinely off sick or in hospital. Thirdly, it forces the trade unions to act on behalf of employers to make workers go to work on strike days, with severe legal consequences if they do not.

I hope the Government see the common sense in this amendment, take a step back and think about the ramifications of what they are trying to do.

[Lord Pannick (CB)]

My Lords, I support Motion A1 for different reasons. The proposal by the noble Lord, Lord Collins, makes it much more likely that, if implemented, the Bill will comply with the United Kingdom’s obligations under the ILO convention and, therefore, under the European Convention on Human Rights. The Minister expressed concerns about delay in implementing the Bill. There is no point in having a Bill that is speedily implemented if it does not comply with our obligations under the ILO convention and the European Convention on Human Rights. I hope that the Government see the good sense in this Motion and recognise that it is in their interests to have a Bill that is effective and lawful.

[Lord Balfe (Con)]

My Lords, I will start with three words of the Minister: “much-needed legislation”. I have not had a single email asking me to support this Bill or a single letter. No Conservative trade unionist has come to me and said, “This is a really necessary piece of legislation”. Actually, it is a nonsense of a Bill. It will not work. I support what was said by the noble Lord, Lord Pannick, which is about the only way of ever getting it to work, but then we have to ask whether it should work. The fact is it should not, because it goes too near people’s rights in industrial relations.

I quote from the former Business Secretary, who is not someone I normally quote. Jacob Rees-Mogg said:

“This Bill is almost so skeletal that we wonder if bits of the bones were stolen away by wild animals and taken and buried somewhere, as happens with cartoon characters”.—[Official Report, Commons, 30/1/23; col. 89.]


It is a disgrace of a Bill.

I will not delay the House for long. I am dubious about whether we should send it back yet again, because of the doctrine of the primacy of the lower House, rather than because I disagree with the amendment. But I ask the Government to stop passing legislation like this, which is a nonsense. I seldom welcome what the Labour Party says, but it will certainly be held to that word “repeal”. If it gets into government—and, you never know, it might one day—my first Written Question will be, “When will you bring forward a Bill to repeal this?”

[Lord Fox (LD)]

My Lords, it is a pleasure to support the amendment, as set out so thoroughly and excellently by the noble Lord, Lord Collins. I have very little to say; I will make just three points.

First, noble Lords who have been observing will remember that on a number of occasions I have proposed amendments that try to give Parliament more say on what is going on. Having got to where we are, I am happy to subsume that objective within the amendment that the noble Lord, Lord Collins, has set forward, but it remains an important and missing element in the Bill. We should not forget that.

The noble Lord also set a lot of store by the recent ILO announcement. He is right to do so, but this amendment is necessary with or without it. The announcement makes it clear to us on these Benches that the Commons should be given another chance to reassess the Bill in the light of the details coming in from the ILO.

Finally, the Minister talks about delay. The first iteration of this Bill was drafted and laid before Parliament about a year ago. If the Government really are that breathless about getting this on the statute book, they could have moved a little quicker. This is about politics, not actually doing anything real out there. The noble Lord, Lord Balfe, is right in that concern. Because of that, we will certainly support the noble Lord, Lord Collins, if he chooses to put this to a vote.

[Lord Callanan (Con)]

My Lords, as I said in my opening remarks, we have had a very similar debate a number of times, so I can keep my response brief. I have responded to these points previously, but I will make one point on the ILO report in response to the noble Lords, Lord Collins, Lord Pannick and Lord Fox.

The ILO did not say that this legislation did not comply with the convention; it simply said that it should and that we should ensure that it does. In my view it does, as our response to the Parliamentary Question rightly said. I have made the point many times in this House that the ILO has been clear over many years that minimum service levels can be appropriate in public services of fundamental public importance. That is why many other countries in Europe and around the world that are signatories to the ILO have had minimum service levels in place for many years. The Liberal Democrats and the noble Lord, Lord Fox, normally urge us to go the way of Europe and follow what EU countries are doing. In this case, we are doing precisely that.

I therefore hope, although without a great deal of optimism, that noble Lords will cede to the wishes of the elected House and agree to the Government’s Motions, which would then bring this Bill’s passage to a close.

[Lord Collins of Highbury (Lab)]

My Lords, I will take the unusual but reasonable step of pressing this, for one good reason. The Minister talks about the ILO not saying that the Bill is non-compliant. Part of the problem is that no one knows what this law means. Trade unions do not know what reasonable steps they need to take to protect the right to strike. We heard the Minister confirm that workers who receive a work notice will lose protection from dismissal.

The Minister talks about the ILO and minimum service levels in Europe. Nobody is against minimum service levels. They are essential, but in every European country they work because they are agreed by voluntary agreement and because people consent. As soon as you remove that consent, you are in trouble. That is why employers are so against what the Government are arguing.

I know that it might feel a bit repetitive, but the ILO report is new and the Commons needs to consider it. I plead with all noble Lords: please support my Motion. I wish to test the opinion of the House.

15:45

Division 1

Ayes: 223

Noes: 204

15:55

Motion B

Moved by

[Lord Callanan]

That this House do not insist on its Amendment 4B to which the Commons have disagreed for their Reason 4C.

4C: Because in order for the legislation to be effective, it is necessary for there to be consequences for an employee who fails to comply with a work notice.

Motion C

Moved by

[Lord Callanan]

That this House do not insist on its Amendments 5B, 5C and 5D to which the Commons have disagreed for their Reason 5E.

5E: Because amendment 5B would remove the requirement for a union to take reasonable steps to ensure that members comply with a work notice in order for strike action to be protected, and this would reduce the impact of the legislation, and amendments 5C and 5D are consequential on amendment 5B.

Motions agreed.