Draft Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels)
(1 year ago)
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The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Parliamentary Under-Secretary of State for Business and Trade (Kevin Hollinrake)
I beg to move,
That the Committee has considered the draft Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels).
It is a pleasure to serve under your chairmanship, Ms Nokes. It is good to see such a well-attended Delegated Legislation Committee.
The Government firmly believe that the ability to strike is an important part of industrial relations in the UK, and it is rightly protected by law. We understand that an element of disruption is inherent to any strike. However, strike action across our public services over the past year has highlighted the disproportionate impact that strikes can have on the public.
Taking that into account, earlier this year Parliament passed the Strikes (Minimum Service Levels) Act 2023, which seeks to balance the ability of workers to strike with the rights and freedoms of the public to go about their daily lives, including getting to work and accessing key services.
David Linden (Glasgow East) (SNP)
The Minister makes the point that he understands that people have the right to strike, but he says that strikes should not disrupt others. How does he reconcile that view with the fact that under Boris Johnson’s Government, scores of Ministers resigned at once and the Government almost ground to a halt? How does he reconcile that with what he proposes to this Committee?
Kevin Hollinrake
I do apologise, but I did not quite get the hon. Member’s point. Will he repeat it so that I can understand it?
David Linden
Does the Minister not understand that in the dying days of Boris Johnson’s Government, scores of Ministers withdrew their labour from the Government? Why is it one rule for the Tories and one rule for the workers?
Kevin Hollinrake
I cannot speak on behalf of my colleagues, but I kept doing my daily job, as I am sure the hon. Member did.
Kevin Hollinrake
I have not finished responding to the intervention from the hon. Member for Glasgow East. I kept on doing my daily duty, as I am sure the hon. Gentleman did. I will make a little progress, if I can.
The Strikes (Minimum Service Levels) Act 2023 amends the Trade Union and Labour Relations (Consolidation) Act 1992 to enable regulations to be made specifying minimum service levels and the services to which they apply. Where minimum service levels regulations are in force, if a trade union gives an employer a notice of strike action under section 234A of the 1992 Act, the employer may issue the trade union with a work notice that identifies persons who are required to work and the work that they are required to carry out during the strike to secure minimum levels of service.
Chris Stephens
The Minister mentions employers. For reasons that are unclear to me and perhaps beyond my understanding, we are discussing only one piece of delegated legislation today. Where is the code of practice for employers, and when is it likely to come before a Delegated Legislation Committee?
Kevin Hollinrake
We did not think it necessary to develop a statutory code of practice for employers, but we are producing guidance for employers on how they can comply with their regulations and engage with their workforce in such situations.
To comply with section 234E of the 1992 Act, which was inserted by the 2023 Act, trade unions should take reasonable steps to ensure that their members who are identified in a work notice comply with that notice and do not take strike action during the periods in which the work notice requires them to work.
Rachael Maskell (York Central) (Lab/Co-op)
How will the employer be compliant with GDPR requirements in a multi-union environment where lists will be going to different unions and where the employer itself will not know which unions individuals belong to? How will the Minister ensure that the names of employees will not go to unions that do not organise those particular workers?
Kevin Hollinrake
The hon. Lady may be confusing two things. The employer and the unions both have a legitimate interest in the individual they are speaking to. The employer must speak to their workforce, and I am sure the unions will speak to their members. But this is all set out in both the statutory code of practice and guidance for employers. She will see more when she sees the guidance for employers.
Rachael Maskell
I am specifically talking about a multi-union environment. Where a number of trade unions are involved, how will the Minister ensure that GDPR requirements are met?
Kevin Hollinrake
It is not my responsibility to make sure that GDPR requirements are met.
Kevin Hollinrake
Will the hon. Lady listen to my answer? The employer has a relationship with the employee —without doubt, that is a legitimate interest—and the union has a relationship with its members. I am sure we can give the hon. Lady more detail if she would like me to write to her on the point, but I do not think that there is a complicated situation here. I think she will find that it works perfectly well in practice.
Rachel Hopkins (Luton South) (Lab)
Maybe the Opposition can enlighten the Minister about workplaces in which there are multiple unions within the same work unit, representing different members. How can he assure us that the proposals set out in the code will not put employers in jeopardy of breaking the GDPR by sharing information about employees with the “wrong” union?
Kevin Hollinrake
As I say, I do not think that it is a complicated situation. As I set out to the hon. Member for York Central, the employer has a responsibility to contact their employees and union members, but I am happy to give more detail on that if the hon. Member for Luton South wants further clarification.
David Linden
Can I ask the Minister for clarification? As I understand it, the Minister said in response to my hon. Friend the Member for Glasgow South West that there will not be a need for the Government to introduce a code of practice or guidance for employers. But in response to the hon. Member for York Central, the Minister has just said that it will be provided. Which of the two is right?
Kevin Hollinrake
I do not think the hon. Gentleman was listening very carefully. I said that there was no need for a statutory code of practice for employers, but there will be guidance. We are debating the statutory code of practice for this legislation.
During the final stages of the parliamentary passage of the Strikes (Minimum Service Levels) Bill, the Government committed to introduce a statutory code of practice to provide more detail on the reasonable steps that a trade union should take. In accordance with section 204 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Secretary of State consulted ACAS and, on 25 August, published a draft code of practice, enabling trade unions, employers and other interested parties to contribute their views.
Following careful consideration of those views, a number of changes were made to the draft code, and the updated draft code of practice was laid before Parliament on 13 November. It sets out four reasonable steps that a trade union should take to meet the legal requirements under section 234E of the 1992 Act. Although the code does not impose legal obligations, it is admissible in evidence and is taken into account where a court or tribunal considers it relevant.
Richard Burgon (Leeds East) (Lab)
When we strip it down, is this not really about trying to set up a whole series of complicated and uncertain hurdles so that employers or the Government can say that strike action has taken place illegally or unlawfully, and then set about trying to fine trade unions and scupper the democratic right to strike? In the Conservative party, there is a tradition of trying to avoid what it would call heavy-handed state interference in matters. Is the Government’s approach not heavy-handed state interference in the management of independent trade unions? They are trying to determine what picket supervisors and pickets will and will not say to people who have voted for strike action.
Kevin Hollinrake
The answer to the first question is no. The answer to the second question is that the legislation balances the rights of individuals to access vital public services with the rights of people to go on strike. That is the simple balance that we are trying to strike. At times the Government have to step in, and we should always use legislation as a last resort. I totally agree with the hon. Gentleman that that has been our political philosophy, but bearing in mind the hundreds of thousands of hospital appointments that have been cancelled and the billions of pounds in costs for the hospitality sector, particularly over last winter, it is right to have a better balance between the rights of individuals and the rights of workers in this area.
I will summarise the reasonable steps. First, a trade union should identify the workers who are its members in a work notice. That will enable the union to take reasonable steps regarding those workers. Secondly, trade unions should send an individual communication or notice, known as a compliance notice, to each member identified in a work notice to advise them not to strike during the periods in which they are required by the work notice to work, as well as to encourage them to comply with a work notice. Thirdly, trade unions should instruct picket supervisors to use reasonable endeavours to ensure that, so far as is reasonably practicable, picketers avoid trying to persuade members who are identified in a work notice not to cross the picket lines at times when they are required by the work notice to work.
Mick Whitley (Birkenhead) (Lab)
Does the Minister agree that the requirement that a trade union, with perhaps as little as four days’ notice, identify its members that have been issued with work notices in disputes potentially involving hundreds of thousands of workers across hundreds of workplaces is entirely impracticable? It risks exposing even the trade unions that work 24/7 to fulfil their obligations under the code of practice to a disproportionate and unfair penalty.
Kevin Hollinrake
No, we do not agree. The provisions and the code of practice are workable. As I have said, we undertook a consultation to make sure that that was the case, so we believe the proposals are workable.
Richard Burgon
I am sorry to draw a political parallel, but sometimes the parallel between politics and industrial practice is useful. It is the job of the Conservative party, in my area and others, to convince people to cast their vote for the Conservatives; it is the job of the Labour party to persuade local people to cast their vote for the Labour party. Is the requirement for trade unions to write to their members to tell them not to strike the industrial equivalent of requiring the Conservative party, in my constituency or others, to write to their own members telling them to vote Labour, or vice versa? Is it not a perverse interference to change the role of trade unions in a really authoritarian and heavy-handed way? The state interference here on behalf of employers in industrial disputes is quite appalling.
Kevin Hollinrake
More an intervention than a perverse interference, I would say, but the hon. Member is entitled to his view, which I respect. He may decide, as we have done on this subject, that we should agree to disagree.
Finally, once a work notice is received by the union, the trade union should ensure that it does not do other things to undermine the steps that it takes to meet the reasonable steps requirement. Actions taken to undermine the steps could include, for example, communicating with members whom the union knows is identified in a work notice, to induce them to strike. Where the trade union becomes aware of such actions to undermine the steps, the union should take swift action to negate any actions of union officials or members that seek to undermine the steps that the union has taken or will take to comply with the requirement in section 234E of the 1992 Act.
If a trade union failed to take reasonable steps as required by section 234E, that would mean that the strike is not protected under section 219 of the 1992 Act. As I have said, a court or tribunal could take the code into account in deciding whether reasonable steps had been taken. If the union protection is lost, the employer could seek damages from a trade union or an injunction to prevent the unprotected strike. Further, an employee taking part in a strike would lose the automatic protection from unfair dismissal under section 238A of the 1992 Act.
It is important to stress that the underlying requirement for a trade union is to act reasonably. For example, failure by a trade union to identify a small number of members, and the consequent missing out of those members from subsequent steps, may not constitute a failure in carrying out the overall obligation to take reasonable steps, as long as the trade union made a reasonable attempt to identify such members. Similarly, where the union takes steps to send promptly a compliance notice to members identified in a work notice, an accidental failure to reach a small number of identified members is unlikely to be a failure to take reasonable steps. In those scenarios, that would be for a court to determine, based on the facts of each case.
The code of practice under the Committee’s consideration has been designed to balance the objectives and benefits of the 2023 Act with the potential burdens of undertaking the reasonable steps, while providing guidance about a clear recommended route for trade unions to maintain their protections during strike action. It will help to provide clarity to employers and union members on what to expect leading up to, and on the day of, strike action where a work notice has been given to secure a minimum service level. It will also provide a greater level of assurance for trade union members who have been required to work as part of a work notice and will be encouraged to do so by the trade union, and therefore increase the likelihood that minimum service levels will be achieved.
If Parliament approves the code, it will be issued and brought into effect by the Secretary of State in accordance with the procedure set out in section 204 of the 1992 Act.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Can the Minister give us a ballpark figure for how many trade unions and how many private sector employers have been engaged in the development of the code?
Kevin Hollinrake
I do not have those figures to hand, but perhaps I will be able to give them to the hon. Member by the time of my closing speech. I would imagine that quite a number of trade unions were engaged. [Interruption.] It is quite a controversial piece of legislation, as the hon. Member knows, and it attracted a lot of attention. [Hon. Members: “Ah!”] Is that surprising?
The Government’s intention is for the code to be in effect before the regulations implementing minimum service levels come into force. To achieve that, the Government are planning for the code to come into effect shortly after the commencement order relating to it is laid.
Justin Madders (Ellesmere Port and Neston) (Lab)
It is a pleasure to see you in the Chair this afternoon, Ms Nokes. I draw the Committee’s attention to my membership of the GMB and Unite trade unions.
I thank the Minister for his introduction. However, it will come as no surprise to him that the Opposition will oppose the code of practice. He described it as controversial, which is an understatement. We remain clear in our view that the Strikes (Minimum Service Levels) Act is fundamentally unworkable and places undue limitations on an individual’s freedom of association. These freedoms have been fought for and won over many decades, and they deserve much better than to be chipped away and undermined in the way that we see before us today. Labour has promised to repeal the legislation when we get into government, and we stand by that pledge.
“Reasonable steps” is a pivotal phrase that jumps out at anyone reading the Act. It stands out so much not only because it is vague and is left undefined in the primary legislation, but because the phrase’s definition carries hugely punitive consequences for those who get it wrong. It determines whether a union’s actions could leave it liable to proceedings in tort for sums that would be likely to bankrupt it. It could also see an individual worker’s protections against unfair dismissal removed. Those are not issues that as legislators we can ignore.
How “reasonable steps” is defined is a fundamental part of the legislation. As the Bill progressed through the House, we repeatedly asked for greater clarity as to what it meant. Time and again, we asked what constituted “reasonable steps”. In response, all we got from the Minister was that it would be for a court to decide.
Richard Burgon
My hon. Friend and I have many things in common, one of which is that we were both trade union lawyers, which Government Members perhaps think are not a good thing. Why are the Government so keen to give so much business to employment lawyers? The code of practice’s use of the phrase that my hon. Friend has just mentioned—“reasonable steps”—is a lawyer’s dream, whether they be on the employer’s side or the workers’ side. In legal libraries across the country, there are fat books of case law to determine what is and is not reasonable in various employment situations. The code is a recipe for further clogging up the courts, and it will cost further money for both trade unions and employers. Does my hon. Friend agree that it is absolutely ridiculous?
Justin Madders
Yes. We both have some industrial experience of how this works, so we can see what is going to happen. There has been no regulatory impact assessment for the code of practice. If there had been, it would have produced some eye-watering numbers on what it will mean for legal costs not just for trade union members, but in the end for the taxpayer, because a lot of the disputes will involve public sector employers.
During the passage of the Bill, the Minister’s refrain was that it is for the courts to decide, but even after the code of practice is issued, it will still be up to the courts to decide. There are still so many ambiguities and unanswered questions. The fact that we had to vote on such an important piece of legislation without any clarity about what “reasonable steps” meant shows that this debate is taking place 10 months too late. As elected legislators, we really should have known what this all meant before being asked to vote on a Bill that was passed into law. That is no way to go on, and it is by no means the only example of this Government rushing through legislation without an adequate opportunity for scrutiny.
Let us be honest: we were told at the time that there was an urgent need for this legislation, and that it needed to be rushed through a Committee of the whole House in just one day. That was back in January. We are now in November, so in reality we could have had a proper Bill Committee stage and evidence sessions in which these issues were properly debated and voted on. Will the Minister tell us whether the rush at the start of the year was because the Government did not want scrutiny of the Bill? Or was it because they were making it up as they went along?
The provisions before us are at odds with expectations about what the Act was meant to deliver. The code of practice does not alleviate any of our concerns about the workability of the legislation. Actually, it adds more levels of concern, complexity and ambiguity. It contains provisions that go well beyond what was discussed and included in the Act, and it contains language that is at odds with ministerial comments at the Dispatch Box. Many important elements are left undefined, presumably for the court to pass judgment on at some point—not to mention the inconsistencies in the code’s guidance, which I will come on to. Unreasonable expectations are also being placed on unions to police the behaviour of their members, and there are excessive diktats on the language to be used in communications between a trade union and its members.
The Minister says that measure has been produced as a result of consultation, but we know that most of the employers’ organisations, never mind the trade unions, think that this is a complete mess. The reason why it is still before us today shows us everything about where the Conservative party is coming from with this legislation. The document deliberately defines the phrase “reasonable steps” in a way that is designed to infringe on a trade union’s actions to a degree that is not in line with the Act’s stated policy aim, which is to reduce disruption during strikes. Put simply, we believe that the code seeks to further restrict the right to strike and limit the lawful actions of trade unions during a period of industrial action.
Turning to the first recommended step—the “identification of members”—it is clear that the interpretation that the code offers is unduly burdensome on unions. It imposes tight deadlines and has the effect of creating confusion. That is before we look at whether this can be done in a GDPR-compliant manner. The Minister did not really address the concerns that several hon. Members raised about what happens in a workplace where more than one trade union is recognised by the employer. Of course, that is quite commonplace.
Paragraph 19 is the most important part of this section of the code of practice. It states:
“Unions should begin identifying their members who are subject to the work notice as soon as reasonably practical after receiving a work notice”.
That means that with potentially as little as seven days’ notice, a union would have to comb through a list—most likely just a list of names—and pick out its members who could be involved in a particular industrial dispute. But not only that: due to an employer’s right to vary a work notice up to four days prior to strike action, that work could be in vain. I will return to that issue shortly. To me, this responsibility seems particularly onerous. We should remember that the sectors in which work notices can be introduced have vast workforces and can be national in scope. It is quite possible that an industrial dispute could involve hundreds of thousands of workers across the country and potentially impact hundreds of different workplaces.
For example, the RMT has highlighted that during a multi-train company dispute, similar to the one that has taken place over the past 18 months, a number of employers could send more than 10,000 names, comprising 100 different grades working at 100 different locations. To provide unions with a matter of days to sort through such an expansive list and identify which members could be impacted by the strike is an enormous undertaking. I am sure that if such an obligation was placed on a business, Ministers would be jumping up and down about all the extra red tape, but we know that this Government do not judge trade unions by the same standards.
One could even take the view that this expectation is designed to be completely impossible, especially given that there is no guarantee that employers will provide defining characteristics alongside the names. That means that the union may not be able to differentiate between two people with exactly the same name or a similar surname, for example. The guidance addresses that by stating that unions “may wish” to engage with employers ahead of strike action on how work notices can be designed to avoid that. That will depend on employers’ co-operation, although, as we have heard, they will be subject not to a statutory code of practice, but to non-binding guidance, which gives us no guarantee that they will co-operate at all.
What steps will the Minister take to address that? Will action be taken against employers that fail to engage with unions to help them to differentiate workers? How will the Minister ensure that any union conducting strike action in the short term will receive work notices that allow them to differentiate names on the list? Will they be offered dispensation if they are unable to identify any workers within a very tight deadline?
Paragraph 20 of the code offers guidance on employers’ ability to vary work notices at four days’ notice. It is hard to understand how that provision could not be deliberately designed to cause confusion and undermine trade unions. What will happen if an employer varies a notice over a bank holiday weekend, or even at Easter, when there is a bank holiday either side of the weekend? Are trade unions expected to have people perpetually on call during such periods just in case another notice is issued? The code makes no mention of bank holidays and weekends, so might a union be asked to respond to hundreds of varied work notices at two days’ notice—or even one day’s notice—with no leeway given?
Neil Coyle
If employers are not compelled to share information, is this dog’s dinner of legislation even remotely workable?
Justin Madders
The overwhelming response to the consultation on the measure, and to that on the original Bill, was that the process will be very difficult in practice. That is because it is not about providing minimum service levels, but about trying to stop trade unions from exercising their lawful and democratic right to take industrial action.
The instruction at paragraph 25 of the code of practice that a union should send its compliance notice to its members “by electronic means” is the biggest irony in all this, because the Government have sat on a review on e-balloting for industrial disputes for some five years, yet made no attempt to implement it. Does the Minister finally accept that it might be reasonable to allow trade unions to enter the 21st century, with industrial action communications sent by email? Does he accept that that should include the actual balloting for industrial action? It is inconsistent, to say the least, that the code of practice specifically instructs unions to contact members about industrial action electronically, yet the law specifically prohibits them from balloting their members by email. I know that the Minister has had a lot of practice in e-balloting from his party’s leadership contests, so does he now accept that it should be possible to ballot trade union members on industrial action electronically?
Paragraph 25 further states that
“if the union is aware that any member will be unlikely to access electronic communications before the…strike”
it should send notice by “first class post” instead. What on earth does that mean? Is a union to require a read receipt from every member to form a view of whether they are likely to access their emails? Does the Minister realise that even four days’ notice would be asking rather a lot of Royal Mail, leaving aside bank holidays and weekends, because the latest stats on the delivery of first-class mail show that it is well below its performance targets?
The most problematic aspect of the code is probably paragraph 20, given its provisions on varying work notices. Anyone tasked with ensuring that all the right members are contacted within the incredibly tight timescale of seven days will experience a logistical nightmare, and that would only be exacerbated by the option of amendment only four days out.
Sadly, the provision leaves the door open to employers to deliberately and purposefully issue erroneous work notices in the first instance, only to vary them closer to the relevant date with a view to undermining industrial action. Members should not forget that “four days before” can start at 11.59 pm on the relevant day, effectively leaving three days. While the motivation might not be malevolent—it could be due to negligence—the practical effect of the requirement will be that a union would be expected to contact an employee to encourage them to attend work on the day of a strike, but then say to them a couple of days later, “Actually, you don’t need to attend,” while telling a whole new set of people that they need to attend. It is not hard to see how that could be abused to create an air of confusion on the part of the worker as to whether they are meant to be on strike or at work. When the consequences for making a mistake are so great, it is understandable that a worker would be likely to err on the side of caution and attend the workplace. Of course, all the energy and time expended on deciding who needs to get a notice and who does not could be spent on trying to resolve the dispute.
All those problems are compounded by a contradiction in the code of practice. Paragraph 19 indicates that, under the duty, a union is expected to take reasonable steps to contact members included in a work notice as soon as is “reasonably practical”.
Mick Whitley
Does my hon. Friend share my confusion about why the onus for communicating with members who have been named in work notices has been placed on unions, rather than on employers, which routinely communicate with their employees as a matter of course? Does he also worry, as I do, that given the difficulties that unions often encounter in contacting members, the measure greatly increases the likelihood of workers being subject to disciplinary action and even dismissal?
Justin Madders
My hon. Friend is absolutely right that the code puts the onus on trade unions. How odd is it that we are in a world in which a Government instruct a trade union to tell employees to attend the workplace? I cannot think of anything more bizarre. But the measure is not actually about ensuring that people attend work; it is about undermining collective industrial action. From what we have seen today, it is clear that that is exactly the Government’s intention.
The trade union’s duty to take reasonable steps to contact members as soon as is “reasonably practical”, contained in paragraph 19, is contradicted in step 2 of the code, which provides guidance on how to encourage members to comply with a work notice. In this step, the code states that once a union has identified all its members, it should communicate this to them via a compliance notice. Paragraph 23 states that the union
“should send the compliance notice before the strike action”
but that it would be “reasonable” to send the notice
“once it is clear that the work notice will not be subject to variation by the employer—either because the last day on which the employer can vary the work notice without the union’s agreement has passed or because the employer has notified the union in writing that it will not vary the work notice”.
That is completely inconsistent with what the code of practice states earlier—that the union should contact its members as soon as is “reasonably practical”. They cannot both be right. Given the consequences of getting this wrong for both the trade union and the individual, the code of practice really ought not to contain such a mixed message. Will the Minister therefore confirm whether a union is supposed to wait until the conditions in paragraph 23 are met, or just get on with it as soon as is “reasonably practical”, as paragraph 19 suggests?
Beyond that issue, the code’s recommendations on encouraging members to comply with a work notice are plainly unreasonable, misleading and complex. Step 2 of the code contains stipulations that are drafted in such a way that grounds for legal challenge will inevitably be opened. Paragraph 26 and annex A, in particular, can be seen to do this. Paragraph 26 includes a list of eight features that a compliance notice must state “clearly and conspicuously”, and annex A contains a pro forma template for unions to use, which is recommended for use by unions at paragraph 27. Paragraph 27 states that a union can amend the template but that the compliance notice must retain
“the overall substance and effect of the notice”.
So why go down this road at all? Why go to the trouble of drafting a template letter and then say that unions can vary it? Is that not just inviting trouble?
We know that the slightest transgression in an industrial action ballot can lead some employers to seek injunctions, even though the practical effect of that transgression is nil, so there is a concern that any deviations from the template will invite legal challenge from employers. The TUC believes that deviations
“will almost certainly lead some employers to seek to legally challenge unions”.
Does the Minister agree with that point of view? How does he think that such satellite litigation will aid the resolution of industrial disputes? Can he also explain the rationale for including a pro forma template on top of the guidance contained in paragraph 26?
Unfortunately, that is not the only way in which the code could instigate legal challenge. Plenty of areas in the code appear to allow for challenges if the union makes an error. Paragraph 39, for instance, states:
“communicating with members whom the union knows are identified in a work notice to induce them to strike”
could constitute an act that undermines steps taken to comply with a work notice. Taken literally, that means that for the period of the work notice, the trade union cannot contact any member subject to one at all with any information on the industrial action. Is the Minister saying that on certain occasions, for a certain period, a trade union cannot contact some members to tell them what is happening with the strike? The mere mention that a strike is taking place could be considered an inducement to strike. I am interested to hear what the Minister says about that, because to me it looks like a fundamental attack on democratic freedoms.
If the Minister does not accept that that is the intention behind paragraph 39, does he accept that there could be a real problem in some circumstances—for example, where there is a technological or administrative error in distributing emails on a mailing list that could risk some of the wrong members receiving that email? Trade unions in those circumstances would lose their protection from liability in tort and employees would lose their automatic protection from unfair dismissal. Is that really what is intended with the code of practice, because that is what paragraph 39 seems to suggest?
The stakes are far too high for such an error to constitute a breach of the code, especially given that the names included in the work notice are liable to change, often at short notice. As there is already guidance in the code stating that compliance notices should include statements telling those on work notices to ignore calls to take part in strikes, paragraphs 38 to 40 seem excessively punitive and unnecessary. The only conclusion that one can draw from such a communication—a blackout around strikes—is that this is a deliberate attempt to undermine trade unions and impact the effectiveness of industrial action.
I will return briefly to the annex and paragraph 26; this is an example of the state trying to dictate the contents of a union’s communications with its members. First, according to the stipulation in paragraph 26(f), unions are expected to encourage workers to undertake the work set out in the work notices. We think it is inappropriate for a union to encourage a worker to comply with a work notice, as it could undermine the collective endeavour of industrial action. Yes, a union must advise a worker of the possible consequences of failing to comply with a work notice, but it is not the role of the state to instruct a union to do that in an enthusiastic way, as is implied in the code of practice.
What does “encourage” even mean? Is it like a football supporter encouraging their team from the terraces and cheering the team on? Is it sending text messages to a mobile phone with affirming messages such as “Please go to work today. I know you’ve got this”? It seems a very odd thing to request that a trade union encourage its members to go to work, given that presumably on every other day, the employee does not require such encouragement to turn up and do their job.
Chris Stephens
Is there not another concern that trade unions have flagged up? Trade union representatives will be identified in the work notices, so the trade union representative will be the one who is picked to, effectively, bust their own industrial action.
Justin Madders
Yes, I will get on to that—there is a bit more, I am afraid, Ms Nokes, because there is an awful lot to talk about. The measure fundamentally pits trade unionists against their core beliefs and principles. That does not seem to register with Government Members, but it really is doing that.
The requirement to encourage members to turn up for work is an odd thing to request, given the failure to explain the legal issues with the necessary accuracy in paragraph 26, which states that unions are advised to tell members that they should receive from the employer
“a statement that the member is an identified worker…and must comply with the…notice given to the union.”
But there is no obligation under the Act for an employer to communicate with workers named by the work notice. Employers need do so only if they want to keep open the option for dismissing them for not attending work. If not, they can let the trade union do all the work.
The code also states that the compliance notice should contain a comment stating that two notices should be received from the employer and that if the member receives both, they
“must carry out the work during the strike or could be subject to disciplinary proceedings which could include dismissal”.
However, the Act gives neither the employer nor the Government the power to compel people to attend work. What it actually does is state that a worker who has been notified by the employer that they are named in the work notice may be dismissed and denied the automatic right to protection from unfair dismissal for taking part in the strike. The code does not highlight that a worker who was dismissed might still be able to bring an unfair dismissal complaint under the general law.
The code and template letter are therefore misleading. But why do they have any reference to dismissal at all? The template requires the union to warn a member that
“you could also be dismissed as a result”
of not following the work notice. However, that is not what the Minister told us would happen. When he was at the Dispatch Box on Monday 22 May 2023, he said:
“The reality is that nobody will be sacked as a result of the legislation.”—[Official Report, 22 May 2023; Vol. 733, c. 103.]
If that still stands, why does the code of practice require unions to warn people of something that is not going to happen? Why would the Minister ask unions to write to their members about something that he said at the Dispatch Box would not happen? I invite him to withdraw his comments or, ideally, withdraw the whole draft code.
The compliance notice template in annex A states:
“The work required of you should be work which you normally do or work which you are capable of doing and is within your contract of employment.”
Can the Minister tell us whether the notice remains effective if it requires someone to undertake a role with which they are not familiar? After all, many contracts of employment have a catch-all clause requiring employees to undertake whatever duties their employer sees fit. At the very least, there ought to be some guidance on what the employee should do if they face such a request. That point also raises the question of what happens if a non-union member is included in a work notice, but the employer fails to contact them. Would they be subject to disciplinary procedures as well? Both those examples show how far the code is from providing certainty; it just adds more complexity and confusion.
The code of practice’s guidance on picketing is an element that came as a surprise, as there was no mention of it at all in the Act. It is covered by different legislation and a different code of practice. There was next to no discussion of picketing when the Bill passed through Parliament, so its inclusion in the code of practice is another example of the way in which this Government have sidestepped scrutiny at every opportunity. I see no legitimate reason for its inclusion; it seems that it is an attempt to expand the scope of the legislation via the back door. That is at complete odds with the purpose of a code of practice that is supposed to put flesh on the bones of how an Act works, not to expand its reach.
Step 3 of the code is simply titled “Picketing”. It sets standards on the union to instruct picket supervisors. Paragraph 33 states that
“the union should…use reasonable endeavours to ensure that picketers avoid, so far as reasonably practicable, trying to persuade members who are identified on the work notice not to cross the picket line at times when they are required by the work notice to work.”
The irony of a code of practice explaining what is meant by the term “reasonable steps” by using the phrase “reasonable endeavours” is certainly not lost on me. It is not exactly a great leap forward, is it? Using “reasonable endeavours” not to do something is a novel concept: it is usually a concept applicable where there are positive obligations on someone to act. I struggle to see how that translates into a negative obligation.
Certainly, nothing that I have heard today explains what that means in practice. But that is the point, isn’t it? This and many other areas in the code of practice leave important questions open to interpretation by the courts. It will take a case making its way to court, and probably several levels of appeal, before it becomes clear what “reasonable endeavours” a union must actually take to prevent members persuading those on a work notice not to cross a picket line. The weight of the punishments that the union and its workforce could be forced to pay will doubtless mean that unions will be cautious about how this works in practice.
This is a legal nonsense. It is quite blatantly a tactic from the Government to attack a union’s right to strike by blunting some of its most effective tools. However, it is a tactic that will add to court backlogs, as we have heard, and will cost the taxpayer, unions and businesses large sums of money when all these issues end up being litigated. Ultimately, it will do absolutely nothing to improve industrial relations in this country.
I will return to the crux of the extract from which I quoted: that picketers should not try to persuade workers listed in a work notice to join them on strike. It is clearly drafted to completely undermine the role of a picket, to the extent that it will be unworkable and difficult to enforce. How is a picket supervisor supposed to know who is on a work notice, especially if the notice runs to hundreds or even thousands of people? Are they expected to know them by appearance? Unless they are told otherwise, picketers are therefore going to have no idea who is bound by the work notice and who is not.
It is completely unclear how the picket supervisors, who are expected to execute this duty and enforce this measure, will be able to do so in practice. The aim of the picket is to encourage compliance with the strike, but the picket supervisor is expected to undertake duties well beyond ensuring that a worker named in a work notice simply is not hindered in going into work. It is another fundamental attack on the role of trade unions. Does the Minister understand that he is asking trade unions to turn on their core beliefs and jettison the very essence of what they stand for?
It is also unclear whether the Government have considered the case of Ezelin v. France, as the TUC’s submissions recommend. In that case, the European Court of Human Rights found that requiring a lawyer to disassociate himself from a demonstration infringed his rights under article 11 of the European convention on human rights? A response on that issue from the Minister, either in his closing speech or in writing after today’s proceedings, would be appreciated.
Other hon. Members wish to speak, so I will draw to a conclusion. We are being asked to vote on a code of practice that goes far beyond the legislation that it is meant to explain. It places potentially insurmountable burdens on unions, leaves important legal questions unanswered, requires unions to be the mouthpiece of the state and expects unions to enforce a draconian piece of legislation that goes against the very essence of their values. To top it all off, there is the threat, should unions not follow the guidance to the letter, of having to pay out exorbitant costs through proceedings in tort and of leaving all their striking workers vulnerable to being sacked.
It is clear what the code of practice seeks to achieve. As we said of the Act throughout its passage, it is an attack on trade unions and their members, and it undermines the fundamental right to strike. We cannot vote for it. No one who believes in freedom of association can vote for it in good conscience. The Government need to go back to the drawing board and redraft the code of practice—or, better still, get rid of the Act altogether.
The Chair
Order. A number of Members wish to speak. I will call members of the Committee first. Our deliberations have to conclude by 6 pm.
Chris Stephens
Thank you, Ms Nokes. I am surprised to have been called so early in the debate, because I was expecting finally to hear some sort of philosophical introduction or support from Government Back Benchers, but as we saw during the passage of the Bill, Government Back Benchers usually walk out and take their own industrial action—but without a ballot, I hasten to add, unlike the trade union movement. I thought that some Government Back Bencher would try to bind the Strikes (Minimum Service Levels) Act and the code of practice together through some sort of philosophical introduction or ethos, so I am disappointed.
Even more incredible than what the Minister said to me was what he said to my hon. Friend the Member for Glasgow East. The Minister said that there was no requirement for guidance for employers. Then, in reply to an intervention from the hon. Member for York Central, he said that there would be guidance but that it would not be statutory guidance. That is utterly ridiculous. If a Government were even-handed, they would have two statutory instruments together—one for trade unions and one for employers—so that everybody was clear.
We know what the game is here: to allow employers to use the legislation to bust industrial action. The Government know that the game is up. What is it about workers having decent wages that the Government are so repelled by? Why are they so repelled by workers standing up for good terms and conditions and having those wages to support their families? Is it because, if we had had consistent Conservative party rule since the 1800s, we would still have children going up chimneys? Or is it because, in the 1990s, as we all remember, the Conservative party bitterly opposed the original minimum wage legislation and that, after an acrimonious debate—
Jeremy Corbyn (Islington North) (Ind)
Can I bring the hon. Member slightly more up to date? Could he cast his mind back to the 1970s, when industrial relations legislation introduced by the Heath Government ended up with five dockers being put in prison? They were then released. It was a headlong clash with the trade union movement, and it resulted in mass strikes all over the country.
Chris Stephens
The right hon. Gentleman is correct. The Conservative party never forgave the trade union movement for defeating the Heath Government in the ’70s. It still remembers. As my hon. Friend the Member for Glasgow East said, it has not legislated for Government Ministers. When they decided to go on strike—when they all walked out together—they did so without a ballot, let us remember. That was inconveniencing the public, was it not?
Kevin Hollinrake
I just want to point out that there is a difference between going on strike and resigning, though the hon. Gentleman might not understand it. There are no restrictions in the code or anywhere else that stop someone from resigning, which is what those Government Ministers did.
Chris Stephens
I think the Minister will find that it was co-ordinated action and that, unlike trade union action, no ballot was required.
David Linden
My hon. Friend will be aware that it was actually worse than that. What those Ministers were doing was practising fire and rehire: they resigned, and many of them were then reinstated in their previous job. I am thinking of the hon. Member for Hexham (Guy Opperman), for example. Perhaps the Minister may be just a little bit out of touch with what went on.
Chris Stephens
I say this charitably: as good-natured as the Minister can be, he is often accused by me and others of not understanding what actually takes place in an organised workplace. It is quite clear that Government Ministers collectively organised to leave their posts, causing huge inconvenience to the public, but I do not see delegated legislation to impose minimum service levels on Government Ministers.
Neil Coyle
Isn’t that because the public could not tell the difference between when they were in office and when they resigned?
Chris Stephens
That may very well be the case. The hon. Member makes an eloquent point.
Rachael Maskell
Every single day this Government are in office, they are unable to maintain minimum service levels across a vast array of our public services, so why does the hon. Gentleman think they are requiring more workers to attend work on strike days than the rest of the year?
Chris Stephens
That is a magnificent point. This has been debated on various occasions on which we have asked the Government—perhaps the Minister will rise to his feet; I will take his intervention right now—why minimum service levels are necessary on industrial action days, but not at any other time. If there were statutory guidance and a code of practice for employers, one would certainly ask the question: would employers demand that there be more workers on shift on days of industrial action than on a normal working day? The Minister knows this, because it has been raised consistently when we discuss these things that employers are always at it.
I was a proud trade union activist. I refer to my entry in the Register of Members’ Financial Interests: I am a proud member of the Glasgow city branch of Unison. We had to negotiate life-and-limb cover for strike days—yes, the legislation sets out that there has to be life-and-limb cover—and employers would ask for more people on shift on days of industrial action than on normal working days. I will take an intervention right now if the Minister can give us an assurance that no employer across these islands will ask more workers to be at work on days of industrial action than on normal working days. I am more than happy to take an intervention from the Minister right now.
I note for the record that the Minister has not risen to his feet.
Since the passage of the anti-strike Act, there have been suggestions that the Act’s provisions on minimum service levels would be similar to the norms of Europe. Well, no, they are not. I will not repeat all the clarifications that I and others have offered on what actually happens in Europe, as those fell on deaf ears. I will, however, repeat our warnings that this nasty legislation will prove to be severely counterproductive and damaging overall to society. Taking a negotiated, voluntary and successful approach to minimal service levels and mutating it into an imposed, coercive and ultimately failed system is very foolish, but it is unsurprising from those who choose not to listen or learn.
Let me comment in detail on one sector in particular: the health sector. I will do so by referring extensively to the TUC’s consultation response on minimum service levels for hospital services. I will also refer to the views of the British Medical Association and the Royal College of Nursing.
The TUC believes that the Act
“is unfair, undemocratic and likely in breach of our international legal commitments.”
Its view is that it is
“the fundamental right of a worker to take industrial action to defend their pay and conditions”
and that
“secretaries of state are to be given enormous power to define and introduce minimum service requirements”.
It says the Act is
“draconian: it could lead to individual workers being sacked for taking part in industrial action that was supported in a democratic process”,
with trade unions facing large damages if deemed to be non-compliant with this code of practice. Perhaps the Minister will answer the question with which he was challenged by the shadow Minister, the hon. Member for Ellesmere Port and Neston. The Minister was quoted as saying that no one would be dismissed as a result of this legislation, but where does it say that?
According to the TUC, the Act is “unnecessary”—it is “custom and practice” to agree “life-and-limb cover”—and “counter-productive”. That, however, is not the view of only the TUC, which points out that the Government’s own impact assessment suggests that
“industrial disputes are likely to become more protracted and prolonged as a result of introducing minimum service levels”.
In summary, the TUC believes the approach is unacceptable, anti-democratic, draconian and, ultimately, both unnecessary and counterproductive.
Given the purpose of this Delegated Legislation Committee, a further quote from the TUC might prove to be the undoing of the code of practice:
“Given the fact that the services subject to MSLs are to be determined by Secondary Legislation, there remains a number of uncertainties around (a) the extent to which the policy would restrict the right to strike, (b) the relationship between the ability to strike and the strength of workers’ ability to bargain on terms and conditions of employment through collective bargaining, and (c) the value workers place on collective bargaining relating to terms and conditions of employment.”
Those comments are also derived from the Government’s impact assessment.
Conservative Members may simply choose to disregard the findings of such an impact assessment. They would find interesting backers in doing so, as the Government’s own Regulatory Policy Committee judged the impact assessment of the Act
“red-rated as not fit-for-purpose”,
and found that the Government make
“use of assumptions in the analysis which are not supported by evidence”—
here is us thinking that the Boris Johnson days were gone. There are other, less parliamentary ways to describe making use of assumptions that are not supported by the evidence, which I will leave to the imagination of Members.
Let us now explore the views of the British Medical Association and the Royal College of Nursing. Agreement among health sector unions is clear, as the BMA also considers the proposals for minimum strike levels to be
“counterproductive, undemocratic, unworkable, and draconian”.
The legislation seems to be little more than a smokescreen. Instead of addressing the state of the NHS, which currently compromises patient safety on a daily basis, or the underlying reasons why doctors and other healthcare staff have been striking in some parts of the UK, if not in others, the Government are trying to paint healthcare workers as the villains of the piece, rather than the victims of governmental action and inaction. I specifically mention striking “in some parts of the UK,” because a different and more respectful approach to public service employees in Scotland has resulted in something closer to industrial harmony. Perhaps others should watch and learn from what the Scottish Government are achieving in public sector relations.
Throughout these islands, a long-standing history of constructive joint working between NHS employers and trade unions at a local level has patient safety at its heart. The introduction of minimum service levels in hospitals would poison those industrial relations. It would replace a system under which those who understand the local situation tailor their response to the needs of hospital service users with a national service level mandated from Whitehall and designed by those who arrogantly assume that they know better.
Although the Government’s consultation seemed to find that several critical incidents arose due to strike action, data from a freedom of information request suggests otherwise. It is unclear whether any were a direct result of action being called. Rather than demonstrating that patient safety was compromised due to industrial action, the data shows the importance of tackling the stresses that the NHS faces on a daily basis.
The BMA has repeatedly raised concerns that the “reasonable steps” that unions would be required to take to comply with the Act would force unions to act in a way that undermines their responsibility to represent their members. It is not “reasonable” to expect unions to take any steps that would undermine legitimate strike action, for which they will have passed a high threshold to have a lawful mandate under trade union legislation.
Mick Whitley
I declare an interest as a member of Unite the union. The hon. Member is making an excellent speech. Does he share my concern that by allowing employers to amend work notices up to the end of the fourth day before industrial action commences, the code risks allowing unscrupulous employers to create formidable and unnecessary bureaucratic hurdles for trade unions to overcome, thereby giving employers the opportunity to intentionally undermine entirely legitimate and otherwise lawful strike action?
Chris Stephens
I agree with all that. I know that this will surprise some Conservative Members, but I do believe that there are unscrupulous employers out there. I believe that unscrupulous employers already use existing anti-trade union legislation to try to stop industrial action taking place with some daft minutiae over lists of members and so on. The point I was making is the Government have already imposed extremely high thresholds that trade unios must cross before industrial action takes place.
The draft code of practice does not achieve the necessary clarity of what the duty will mean in practice for trade unions. Instead it presents issues for trade unions over how they will be able practically to implement the proposals. It creates incredibly unrealistic timescales on unions, requiring them to start identifying members
“as soon as reasonably practical”
after receiving a work notice. Such weasel words threaten vindictive penalties for being unable to guess what a Conservative Minster thinks is “reasonable”.
I will refer to some surprising comments from the Royal College of Nursing. They are surprising because the RCN was advised that the legislation would not affect it at all, but perhaps it was not too surprised to discover that that was not the case. A Minister at the Dispatch Box told nurses that the Strikes (Minimum Service Levels) Bill was “not about nurses.” That was always flagrantly untrue, as the RCN clearly stated at the time. Specifically, the Leader of the House said on 26 January 2023 that the Bill was “not about nurses”, and that it was “wrong” to suggest that it was.
Through its draft regulations for NHS ambulance services and the NHS patient transport service, the Government are now explicitly seeking to impose minimum service levels that apply specifically to nursing staff in ambulance services. The RCN asks that Parliament, including Members present here, should hold the Government to their words and reject regulations that would impose minimum service levels on nursing staff.
Patrick Grady (Glasgow North) (SNP)
Like my hon. Friend, I am a member of Unison in Glasgow. All the concerns that he has raised about how the code applies to the NHS, and particularly how it applies to nurses, have been raised with me by constituents. They are incredibly concerned about the pernicious nature of the Government’s legislation and their actions more generally. My hon. Friend was right to say earlier that the way to avoid strike action in the NHS and across our public services is to have decent industrial relations, to invest in them properly, and to welcome people into this country who are willing to supplement the workforce, which is so desperately crying out for more pairs of hands.
Chris Stephens
My hon. Friend makes an excellent point. I hope that the Minister takes that on board because good industrial relations mean a happy workforce, and there is actually less industrial action when we have good industrial relations.
I will conclude, Ms Nokes, with some comments about Scotland. That will not surprise you, nor anyone in this Committee. I have already referred to how a different and more respectful approach towards public service employees in Scotland has resulted in greater harmony and far fewer strikes. The RCN explicitly recognised that the imposition of the proposed code of practice on Scotland and Wales would be additionally problematic, as it would explicitly contradict the wishes of the elected devolved Administrations. We will look to see whether the UK Government can echo a similar respect for Scottish rights and autonomy as that shown by trade union colleagues south of the border.
Rachel Hopkins
I am grateful, Ms Nokes, for the opportunity to speak. I congratulate my hon. Friend the Member for Ellesmere Port and Neston on his excellent speech, which set out all the problems with the Strikes (Minimum Service Levels) Act 2023, the draft regulations and the code of practice that we are considering today. I agree that the measure is draconian, unnecessary and unworkable. Indeed, as the Minister himself said, it is controversial.
The right to strike is protected by the Human Rights Act 1998, article 11 of the European convention on human rights, the International Labour Organisation’s convention No. 87 and paragraph 4 of article 6 of the European social charter. Fundamentally, those standards are flouted by the whole set-up of the regulations, the Act and the code of practice. In the middle of a cost of living crisis, when public services are struggling and many are on their knees, this Government have chosen to play politics and attack a fundamental right of workers through the introduction of these minimum service levels. That is solely to undermine collective bargaining and collective organisation, as set out by others.
Many of the details of my concerns have already been laid out in this debate, but I would like to flag up a couple of areas about not only the principles but the unworkability of this whole set-up. We have heard much about taking reasonable steps and issuing directions to employers on work that they are expected to do on strike days, but the code of practice itself interferes with a democratic trade union’s communications with employees.
As we have heard, disputes may involve many different employees in different workplaces, who may be members of different trade unions or none, yet we have not had real assurances that data will be protected, particularly under GDPR. We must remind the Minister that a person’s trade union membership status is a particularly special category of data, so I would like assurances that he has understood the implications of the complexity of this code of practice, which is still very opaque and, in fact, confused.
On timescales, we have heard how, given the amount of notice given and the ability later to amend the work notice, the measure could leave unions with three days to reach their members, and that could be over a weekend or a bank holiday. How does the Minister expect that to work in practice, or is he, again, just going to let that all fall through to be dealt with by the courts? It is disappointing to see the speed with which the Minister expects this to come into force. Usually employers have a six-month period to get used to legislative change, yet we are led to believe that this process will be in place from 7 December—that is in barely a week.
While we will obviously want trade unions to be able to meet their obligations if this measure is passed— I put on record my desire to vote against it today, and I hope that we will all get the ability to vote against it as a whole House—I ask the Minister why it has been brought in so quickly. Not only are we dealing with a very opaque set of regulations and code of practice—even more time than usual is needed to consider how things will actually work in practice—but I believe that the Minister is setting employers, trade unions and indeed the Government themselves up for failure by bringing in legislation with such speed and without a real ability for all parliamentarians to scrutinise it thoroughly. I would really like to hear the Minister’s view of how employers are going to respond on 8 December when they are faced with having to deal with this alone. Does he have any thoughts on how trade unions will deal with this?
I would like some clarity on the stated design of the code of practice. It is the Government’s recognition of their own failure to just say, “That can be settled by the courts.” There is no confidence that the legislation is actually fit for purpose, but the Government are already washing their hands and saying, “We’ll let the courts decide.” Can we have clarity from the Minister about any Government assessment of the cost of litigation for trade unions, employers and, indeed, the Government themselves? So many questions have not been answered about the lack of clarity in this opaque code of practice. As I said, it is an admission of failure to leave so much to the courts, and far be it from me to say, but there will be plenty of employment lawyers taking up the work, sadly. Is that really a metric of success? I would argue that it is not.
I also want to reiterate the point so well made by my hon. Friend the Member for Ellesmere Port and Neston and the hon. Member for Glasgow South West about ministerial comments in the Chamber that nobody will be sacked as a result of this legislation and that other disciplinary measures can apply. If that is the case, why is there a requirement for trade unions to warn their members that dismissal is an option? The Minister has said that that will not be the case, so can we have some clarity from him on how he reconciles those two points? I reiterate my question about the definition of reasonable endeavours with regard to picketing. It is thoroughly unclear—though, again, I presume that it will just be left for the courts to decide.
I appreciate that other Members want to speak, so I will conclude. This is not actually about a situation that the Government are trying to settle. It is fundamentally about attacking individuals’ right to strike, not improving industrial relations. As I said, I will be voting against the code.
David Linden
It is a great pleasure to serve under your chairmanship, Ms Nokes. As others have done, I declare my trade union membership—I am a member of Unite. I found it mildly ironic that in the course of a debate about minimum service levels, at least one Conservative MP disappeared for the majority of the sitting only to come back, presumably to vote. I will not go as far as identifying that individual.
Before I go any further, I will pose a question to official Opposition Front Benchers. Can we get a commitment that any incoming Labour Government would repeal today’s legislation within their first 100 days? I am not the only one who has been slightly alarmed by the deviation of the current Labour leadership in terms of its commitment to workers’ rights. I think it is important to get that on record.
We find ourselves scrutinising this delegated legislation because earlier in the year, the Government brought forward a measure for a reason we all know: to have a pop at the likes of Mick Lynch. We know what happens when Governments try to legislate on the hoof as a result of press coverage: legislation tends to be rushed through and in the form of a dog’s dinner, and they then come forward with delegated legislation to try to tidy it up. I rather suspect that we will not be surprised to see further legislation at some point down the track. Members have outlined holes that are already in this code, and that is within only 75 minutes or so of scrutiny.
The first thing that concerns me is that the commencement of the regulations will come straight after approval from both Houses. The code of practice has to come into effect; that would be in mid-December, which is only a matter of weeks away. The very idea that Parliament, which we were told during the Brexit process was somehow taking back control, is having this kind of thing foisted upon it in a Delegated Legislation Committee raises a number of questions.
The regulations impose an effective strike ban. I do not want to detain the Committee for too long, but I draw attention to annex A of the draft code, which is absolutely wild. I do not know how many members of the Committee have actually looked at the Government’s draft code, but the idea is that a trade union official would be compelled to send a letter to its members, suggesting that they are required to work—the word “required” continues throughout the letter—beggars belief. The letter says:
“[Name of union] advises you not to strike…You should ignore any call to strike…we encourage you to notify the picket that you are required by the work notice to work at that time.”
The idea that the trade union official, who will probably be the picket supervisor, would be asked to send a copy of this letter, or a variation of it, really does beggar belief. It strikes me that whoever drafted this in Whitehall has absolutely no understanding whatever of trade union organisation, although that might not come as a surprise to many.
Patrick Grady
Is my hon. Friend concerned about the increasingly authoritarian approach of this Government? People are now required to turn up to polling stations with photo ID, and now they will need a slip to allow them to cross a picket line. Is this the kind of libertarian approach that people had originally expected from the Conservative party?
David Linden
My hon. Friend makes a good point. It was not that long ago—only a couple of weeks back—that we had a Home Secretary who called for insurrection in Whitehall. The reality is that this Government have a questionable record when it comes to libertarian values, whether it is these restrictions, the—frankly—voter suppression mechanisms that they have brought forward, or the Public Order Act 2023, which seeks to curtail people’s basic rights to assemble and to demonstrate. We know that many provisions in the Government’s legislation have been criticised by the ILO for the fact that they go against the basic and most fundamental right for an employee to withdraw their labour.
I have particular concerns about the identification of members. The Strikes (Minimum Service Levels) Act mandates extremely tight timelines for the identification of members in work notices. Even Conservative Members struggled to keep a straight face when confronted by the contradiction of requiring a postal ballot for taking part in industrial action, but the issuing of work notices within the space of three or four days. That rather suggests that the Government are on shaky ground. The Minister would do well to reflect on that in his summing up.
Where union members do not have an email address, or have not shared their email address with the union, the union is expected to rely on sending information via the postal service. The code does not recognise that challenge. Given the way Royal Mail has decided to run its business in recent months and years, it is not uncommon for there to be a postal strike. We could have something of a perfect storm there.
The code states that unions should also tell a worker who is named in a work notice that they must
“carry out the work during the strike or could be subject to disciplinary proceedings which could include dismissal”.
I know that it is perhaps not normal for Conservative Members to be completely au fait with how the trade union movement works, but the absolute nonsense of a trade union writing to a member who has joined that trade union to collectively organise being threatened with disciplinary proceedings or dismissal really does make a mockery of the situation.
Many other hon. Members have referred to the fact that the original legislation, which was rushed through on the Floor of the House, made absolutely no reference to pickets. Yet—surprise, surprise—we get legislation that is pushed into a Delegated Legislation Committee. A rather stuffy delegated legislation Committee, in which I suspect most people are either playing Candy Crush or considering what to write in their Christmas cards, is debating legislation about strikes and picketing, when we were promised on the Floor of the House that that would not be the case.
The Strikes (Minimum Service Levels) Act 2023 is draconian legislation that attacks individuals’ fundamental rights while doing nothing whatever to improve industrial relations. At a minimum, the associated regulations—the provision that we are looking at now and the regulations that we will be looking at this evening—intended to implement it should be subject to proper scrutiny. Parliament must be given more time, sufficient time, to examine each of the regulations in proper detail and to consider the analysis of the Regulatory Policy Committee.
All of this makes the point that my hon. Friends the Members for Glasgow North and for Glasgow South West and I, and indeed many other SNP Members in this place, have been sent here to stand up and make the argument for stronger workers’ rights. We were promised during the period of the Brexit referendum that Brexit would not be a bonfire of workers’ rights. Six or seven years down the line we are once again served up legislation in here that Scotland did not vote for, that Scotland opposes at every turn, and that I suspect in about six or seven minutes’ time will pass, because there is a democratic deficit in this place—and that makes the case for Scottish independence.
The Chair
I want to bring the Minister back in at about five minutes to 6. I call Rachael Maskell.
Rachael Maskell
Thank you, Ms Nokes; I will keep my comments incredibly short. I refer to my declaration in the Register of Members’ Financial Interests.
I am completely shocked and baffled as to why the Minister has brought forward these provisions today when he does not even understand the context of the impact that this will have on a multi-union workplace and the breaches of the GDPR that the employer will be subject to in sharing sensitive information about their employees with different trade unions. They will be able then to identify the people who are members of other trade unions. Therefore there will be a complete breach, which will clearly be challengeable in the courts. [Interruption.] The Minister shakes his head, but that will be the consequence.
I am also completely baffled in relation to the timetable. When it comes to balloting for industrial action, it takes months to organise an industrial action ballot. We are talking about complex public sector ballots on the whole. As a result, it is important to get the information accurate and permissible under the law. However, an anti-union employer will have only four days in which to provide the information to a trade union, and then it will be a case of cross-matching, getting a notice out by post, because obviously the union does not need to collect information on the email addresses of its members, and then giving the notification. It is an employer who has the responsibility for whether a worker goes to work or not. I say to the Minister that that obligation should not be placed on trade unions.
The Minister has not said what will happen to the worker’s protection if the worker does not receive the notice, and whether their protections will be removed and, as a result, they could end up with a dismissal, with no right of restitution at all. It is really important that the Minister brings clarity as to what will happen in those circumstances and, indeed, what will happen to the trade union if it makes efforts to comply with the legislation but is unable to do so because of the format and the way the data is provided. The Minister makes a lot of assumptions that the employer knows their workforces and who will be taking industrial action or not. I have to inform him that that is often not the case in these complex industrial environments.
The Minister is above this. I think the fact that he has brought this measure forward today just shows that he has not taken the time to understand the way industrial action ballots actually work and the consequences of this legislation.
Kevin Hollinrake
The Strikes (Minimum Service Levels) Act balances the ability to strike with the rights of the wider public, ensuring that lives and livelihoods are not put at risk. I will respond to one or two points; I probably will not be able to respond to all the points raised in this debate.
I say to the hon. Member for Bermondsey and Old Southwark that there were 46 responses: 10 from members of the public and 36 from organisations, including trade unions, employers and local government representatives. That includes, on the union side, the TUC, ASLEF, the British Medical Association, the Fire Brigades Union, Unite, the RMT, Unison and the RCN.
The hon. Member for Luton South was absolutely right to mention the cost of living crisis. To respond to her point about why we are legislating at this point in time, it is because industrial action has an impact on other people’s jobs and livelihoods. There have been 4 million days lost through industrial action, 2 million appointments cancelled in the NHS and £3.5 billion in costs to the hospitality sector. That is why we are legislating as we are.
It is right that points were raised about ensuring that both unions and employers are able to identify people who have union membership so that unions can understand who has been named in a work notice. Paragraph 18 clearly sets out the opportunity for unions to engage with employers to establish the rules on how they will identify different individuals, such as using job title, name and place of work. We do not see that it will cause a problem. Employers and unions can go further than that and enter into a data sharing agreement, which is good practice within GDPR rules.
The shadow Minister, the hon. Member for Ellesmere Port and Neston, referred to paragraph 39 and the work notice requirements. We do not feel that it is an onerous practice at all. It is quite clear that the union could communicate with its members not only about work notices but about the strike itself. The rules are set out clearly. He knows the courts very well; I cannot see anybody not being able to understand the rules in a way that would create an opportunity for somebody to challenge them in court. It is not complicated at all, in my view.
On the point about sacking, I am happy to make a clarification in terms of what I said on the Floor of the House at the time. I was quite clear in my opening remarks that protections are removed from disciplinary action against workers who do not comply with a work notice. It is our expectation that nobody would need to lose their job as a result of this legislation. There are other measures that can be taken in terms of disciplinary action. If people comply with this legislation, clearly nobody will lose their job.
Kevin Hollinrake
I am sorry, but I will not have time to conclude the debate if I take interventions, which use up a lot of time during speeches. It is right that I conclude the debate.
If the hon. Member for Glasgow South West checks Hansard, he will see what I said in response to his intervention, which was that there is no need for a statutory code of practice for employers, but guidance has been issued; it was published on 16 November. That is our view. I advise him to check Hansard. On his point about minimum service levels effectively requiring an increase in service levels, if he checks the guidance that we have put together for rail, it clearly stipulates 40% of the normal timetable. We are not expecting an increased level of service; we are just expecting a service.
To help to secure minimum service levels, it is vital that trade unionists take reasonable steps to ensure that their members who are identified in a work notice comply with that notice and do not take strike action during the periods in which it requires them to work. It will help to provide a greater level of assurance that trade union members who are required to work as part of a work notice will be encouraged to do so by the trade union, and therefore increase the likelihood of minimum service levels being achieved.
Ultimately, the code will help all parties to achieve minimum service levels where they are applied, and moderate the disproportionate impact that strike action can have. I commend the code to the Committee.
David Linden
On a point of order, Ms Nokes. I beg to move, That the Committee sit in private.
Draft Strikes (Minimum Service Levels: Border Security) Regulations 2023
(1 year ago)
General CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Minister for Immigration (Robert Jenrick)
I beg to move,
That the Committee has considered the draft Strikes (Minimum Service Levels: Border Security) Regulations 2023.
It is a pleasure, as always, to serve under your chairmanship, Ms Elliott. I welcome the opportunity to discuss these important draft regulations, which were laid before the House on 7 November.
The draft regulations will introduce new powers for the Secretary of State to create regulations that will prescribe minimum levels of service for certain sectors during strike action. Employers may issue a work notice in order to deliver those minimum service levels. The powers are available to the Secretary of State across a range of sectors, including health, education, transport, fire and rescue services, and border security.
The ability of staff to take strike action is an integral part of industrial relations. The security of our borders, however, is something that we cannot and will not compromise. To maintain services at our borders is essential to our security and prosperity as a nation. We depend on our skilled professionals to ensure that, 24 hours a day, 365 days a year, our borders are strong and effective.
We must also consider the disruption caused to and costs incurred by passengers and businesses, who expect essential services they pay for to be there when they need them. We also have to consider the impact on those called in to cover for staff going on strike, including on members of our armed forces who, commendably, have stepped up to fill vital roles during recent industrial action. It would be irresponsible to rely on such short-term solutions indefinitely to protect our national security.
The Government assess that, in the event of strike action by those charged with securing our borders, there are significant risks to the safety of our communities. Criminals might seek to take advantage of strike action to enter our country or to move illicit commodities through our ports and airports. People smugglers might seek to exploit gaps in our patrol activity to land illegal migrants on our shores. For those reasons, the Government decided to include border security in the scope of the Strikes (Minimum Service Levels) Act 2023.
These draft border security regulations have two essential purposes: first, to make provision for minimum service levels during strikes regarding relevant border security services; and, secondly, to define those relevant border services. The regulations set out that border security services should be provided at a level that means they are
“no less effective than they would be if the strike were not taking place”.
The draft regulations set out that passport services such as those that
“are necessary in the interests of national security”
will be
“provided as they would be if the strike were not taking place on that day.”
They also define the relevant border services that must be provided as
“the examination of persons arriving in or leaving the United Kingdom…the examination of goods…imported to or exported from the United Kingdom, or…entered for exportation or brought to any place in the United Kingdom for exportation…the patrol of ports, and the sea and other waters within the seaward limits of the territorial sea adjacent to the United Kingdom…the collection and dissemination of intelligence for the purposes of the services…the direction and control of”
those engaged in providing those services; and such passport services as may be necessary for national security reasons.
Once the employer has decided to engage the new provisions, the Act enables them to issue work notices to trade unions during strike action. A work notice is a notice given in writing that levels of service as set out in the minimum service regulations are to apply.
Robert Jenrick
If I may finish the next paragraph, I will certainly come back to the hon. Member.
The trade union must then take reasonable steps to ensure that its members do not take strike action. It is important to note that the Act forbids an employer, when setting a work notice, from having regard to whether an employee is a member of trade union, has taken part in trade union activities or has used its services in the past. If a union fails to take reasonable steps, it may lose its legal protection from damages, claims and injunctions. The Department for Business and Trade will bring forward separate statutory guidance on “reasonable steps”.
Grahame Morris
The Minister said that this is a significant piece of legislation intended not to outlaw strikes, but to ensure minimum service levels. Quite a number of people disagree with the Government’s intent and whether the legislation is the appropriate vehicle to achieve that, but I am asking for a point of clarification on the draft regulations. Beforehand, I was looking through the impact assessment and our obligations as a country under international law. Concerns have been expressed by the trade unions—I should add that I am a member of the PCS parliamentary group, so I declare an interest—to suggest that this legislation is in breach of article 11 of the European convention on human rights; article 3 of the freedom of association and protection of the right to organise convention No 87 of the International Labour Organisation; article 8 of the international covenant on economic, social and cultural rights; and paragraph 4 of article 6 of the European social charter, which came into force in the year of my birth, 1961. I am interested in the Minister’s view of whether we are in breach of international law.
Robert Jenrick
We would not introduce the draft regulations if we believed that we were in contravention of our legal or international obligations. We do not believe that to be the case. It is worth stating that restrictions on the right to strike are common across Europe and signatory countries to the European convention on human rights. Minimum service levels exist in a range of countries in the EU and globally—
Joanna Cherry (Edinburgh South West) (SNP)
On that point, will the Minister give way?
Robert Jenrick
If I can finish the point, I will come back to the hon. and learned Lady.
Minimum service levels are a legitimate mechanism to implement necessary restrictions to balance the ability to strike with the needs of the general public. I could give examples of countries that have taken similar steps in recent years such as Portugal, France, Spain and others.
The second point to make in answer to the hon. Member for Easington is that nothing in the draft regulations will prohibit the ability of those working in border security to go on strike. The regulations will limit it, and ensure that a minimum level of service can be conducted. There is no general prohibition on the right to strike; we have said, however, that it is absolutely in the interests of the general public—for the free flow of goods and services through a port—and of national security that at all times we maintain a minimum level of service.
As the Minister responsible for border security during recent strike action, I thought it was extremely important to the country that we kept each and every one of our ports open and that we did not compromise national security. That is why I worked closely with the Secretary of State for Defence to ensure that military personnel were available at our ports. They did a fantastic job of achieving that, but it is not a sensible, long-term solution to ask members of our armed forces to step in on such occasions to protect our border security. It is right to put a sustainable solution in place.
Joanna Cherry
To take the Minister back to the legal point made by the hon. Member for Easington, he will recall that the Joint Committee on Human Rights produced a report on the Act under which the draft regulations are being made. In an analysis of the law, we in the Committee pointed out that the European Court of Human Rights—in a case, somewhat ironically, against Russia—was clear that article 11 protects the right to strike. The Minister is perfectly right to say that other countries have minimum service-level laws, but they have different legal arrangements from us, with many providing a constitutional right to strike. The real question for the Government should not be whether other countries have minimum service-level regulations, but whether the United Kingdom Government are meeting their human rights requirements under article 11 of the ECHR.
Robert Jenrick
The hon. and learned Lady knows that article 11 is a qualified right. We strongly believe that, although there must be a right to strike, it must be balanced—qualified—by the need to protect the general public and ensure national security, and that is the crux of the argument. It is also worth saying that we will introduce compensatory measures, in the form of non-binding conciliation, to compensate the personnel who will be affected for interfering with that qualified right. Taken together, we believe that all of that satisfies our legal obligations.
The regulations stipulate that border security services can be provided only by those who already provide border security services or the relevant passport services required in the interests of national security, which means we will no longer need to rely on outside resource to provide cover. As I have said in answer to interventions, in the past we have used civil servants working elsewhere and, above all, members of the armed forces. We acknowledge and appreciate the efforts of colleagues who provided that cover, but we also recognise that that is not a long-term solution.
Grahame Morris
Can I draw the Minister’s attention to his comments about the use of the armed forces? I fully understand what was done in the pre-Christmas period last year because of the enormous queues that built up at airports and ports, but I have been told anecdotally that, because members of the armed forces could not operate the technology—they did not have any choice about this, and they were instructed to do it—they were simply waving people through. Anybody could have come in—people smugglers or anyone. If that is the last resort, surely the best solution is to negotiate with the trade unions to ensure that we have the right number of trained staff at our ports and airports and that an efficient service is operating for passengers and in the interests of national security.
Robert Jenrick
First, I strongly refute what the hon. Gentleman has just described, which does a disservice to those members of the armed forces who served throughout the year and particularly over Christmas. I, for one, met members of the armed forces last Christmas Eve and saw the work they were doing; they gave up their Christmas to serve the general public, and I do not want to see that happen again in future.
However, the hon. Gentleman’s point is valid in so far as it is obviously preferable to have properly trained individuals doing this task, which is precisely why we need these minimum service levels. It is not just about operating the primary control points at our airports, but about ensuring that we have proper counter-terrorism responses; that all the goods that enter and exit our country are properly checked, so that we have counter-narcotics operations in place; and that we have the resources in place in the short straits, so that if there are issues with small boat arrivals, lives can be saved and individuals can be met appropriately upon arrival in the UK. This could not be a more important subject, which is why we need the proper processes in place, and it is only by maintaining a minimum service level among permanent personnel that we can achieve that on behalf of the public.
To conclude, the public rightly expect us to ensure there is a fair balance between maintaining a secure border and the ability of workers to strike. These new border security minimum service levels will ensure that we have that balance between delivering the best possible service to the travelling public, maintaining a secure border and the ability of workers to strike, as is already the case in a range of countries in Europe and beyond. I commend the regulations to the Committee.
Stephen Kinnock (Aberavon) (Lab)
As always, it is a pleasure to serve under your chairship, Ms Elliott.
The ink is barely dry on the primary legislation under which these regulations are being made, yet the Government are already telling us quite a different story from the one they set out in the arguments made during the passage of the Bill—now an Act—through Parliament. As Members will recall, one of the Bill’s primary stated purposes was to give Ministers the power to define, in secondary legislation such as this, the scope of the definition of the relevant services covered and the particular minimum service levels that will apply to the services in question.
On the first issue, we were led to believe during the Bill’s passage that the only services for which the Home Office is responsible that were likely to be covered by the legislation were those relating to border security—namely, roles carried out by Border Force employees. The regulations go much further than that. Their scope will also include some Passport Office employees, but we have no idea how many or which roles, because the Government are not saying. The impact assessment tells us only that what is likely to be a small number of employees of HM Passport Office will be covered. This apparently last-minute addition to the draft regulations is so poorly defined that it is impossible to scrutinise, and the Opposition will never accept that.
In the absence of the key data from the impact assessment, perhaps the Minister could tell us now exactly—or even approximately—how many HMPO staff are likely to be required to meet the service levels the Government intend to impose, and exactly which roles in HMPO are likely to be included. If he cannot answer those questions, would he accept that bringing that agency into the scope of the new minimum service levels today is at best premature and at worst impossible to justify.
These questions matter because the consultation process that the Act requires, as part of the process of setting new minimum service levels, made no mention of any prospect that HMPO staff would be included. In a foreword to the consultation document, published over the summer, the previous Home Secretary suggested that other services under her remit could potentially be included alongside Border Force within the scope of the new rules. She asked for views from the stakeholders consulted as to whether any additional services should be included and if so, which ones. According to the Home Office, the majority of the responses it received said that only Border Force staff should be subject to minimum service levels among the Department’s employees. There were no suggestions from any stakeholders that Passport Office staff should be included.
The first and most obvious question is when the decision was made. Beyond that, can the Minister explain the rationale for HMPO to be brought into scope, and can he explain why his Department failed at any stage to consult the trade unions and employees who stand to be significantly affected by the regulations?
More broadly, some of the most obvious questions and concerns are conspicuous by their absence from the Government’s impact assessment. In other words, it seems that the Home Office is simply ignoring the questions that it does not wish to answer. For instance, have the Government made any assessment of how the introduction of the proposed minimum service levels might affect the ability of both Border Force and HMPO to recruit and retain the qualified and experienced staff that they need? If so, information on any such assessment is not included in the impact assessment. Why is that?
I am sure the Minister is aware of statements that several trade unions have made to the effect that they may adopt a strategy of deliberate non-co-operation or non-compliance with the proposed changes. With those unions responding with understandable anger to the changes under discussion, does the Minister accept that the Government’s heavy-handed approach to setting the minimum service levels we are discussing—and, particularly, his Department’s wilful refusal to carry out the most cursory of consultation processes with its own employees—risk seriously undermining his ability to bring union members to the table for negotiations in good faith on any potential disputes in the future? In so doing, have not the Government made even more likely the kind of industrial unrest that the legislation is supposed to be aimed at preventing? In light of our profound concerns about the regulations, I confirm that Labour will seek a Division this evening and will vote against them.
Alison Thewliss (Glasgow Central) (SNP)
It is a pleasure to see you in the Chair, Ms Elliott.
The SNP will likewise oppose the regulations. We are very concerned about their impact on people’s fundamental right to withdraw their labour. Strikes, by their very nature, are supposed to be disruptive. If the Government are saying that Border Force should be no less effective than if a strike were not taking place, they would undermine the very point of a strike. The very point is that people should know that staff have withdrawn their labour, because they are concerned about their terms and conditions or the way their employer—in this case, the Government—are treating them.
Gareth Johnson (Dartford) (Con)
The hon. Lady is right that strikes are designed to be disruptive—that is their purpose—but they are not designed to be dangerous to the public. Strikes by Border Force are dangerous to the UK public, and that is the reason behind the legislation.
Alison Thewliss
The point the hon. Gentleman makes would be more correct if the Government were not determined to keep ports and airports open during strike action. That is a choice they have made. They want ports and airports to stay open, therefore they want a minimum service level. If the Government had said, “If you withdraw your labour, we will only be able to open the airports to an extent”, people would notice that. We notice when French air traffic controllers go on strike because it has that effect. It causes disruption and people realise there is an issue. If we have a service that is essentially no different when a strike takes place, the very nature of strike action is undermined.
The TUC has described the regulations as
“a draconian piece of legislation that attacks individuals’ fundamental rights while doing nothing to improve industrial ‘relations’”.
I remind the Minister that strikes have been more common under this Government because industrial relations have not been in a great place. That is why they are cracking down on people who wish to withdraw their labour and go on strike. It is a punishment for those people for having the temerity to exercise their fundamental rights.
I would also be very interested to know how the regulations will affect the Passport Office. I have a Passport Office in my constituency. I am not clear from the regulations how many people who work in the Passport Office in Glasgow will be affected because they are regarded as “mission critical” for national security. That is not defined in the regulations. The Government could say that everyone who works in the Passport Office is subject to the legislation, or perhaps it would be just a few people working on very sensitive passports. They have not defined that at all, and that is worrying for those who work in the Passport Office, because they do not know what their rights will be.
The issue is not just about security, as the hon. Member for Dartford suggests. The Government have talked about the free flow of goods. That is not national security: the free flow of goods is about commerce. Which is it? The Minister is disingenuous if he says it is only about national security.
On the consultation, I was surprised that we have not had a list of respondents. The consultation was open for just over a month only, from 11 August to 21 September, with 69 respondents, including employees of Border Force, industry partners and members of the public. I would be interested to know the exact mix. A further nine written responses were received from organisations such as trade unions, port operators and airlines. Again, it would be interesting to hear more about those responses. Is there a reason why those were not published ahead of the proceedings today? It would be interesting to learn about the balance of the responses. Were they from people saying they wanted their right to strike, or from people saying that nobody should ever be allowed to strike? We cannot tell from what has been provided to us.
The impact assessment contains a list of risks associated with the policy. It will have a disproportionate impact on some smaller ports and airports—mostly found in Scotland. Page 29 states:
“As Border Force staff numbers based at some smaller ports and airports are very low, Option 2”—
the Government’s preferred option—
“could mean that staff based at these locations are more likely to receive work notices, thus they are less likely to be able to undertake strike action, when compared with other staff.”
That seems to me to be discrimination: some people are not able to exercise their rights because they are seen as more critical in their roles than somebody at a much larger facility, perhaps. Take a small airport in Scotland compared with Heathrow. That is a huge difference in the number of people able to effectively exercise their right to strike.
The impact assessment goes on to say:
“Similarly, the requirement to maintain particular Border Force security functions during strike action could mean that officers trained in critical functions are less likely to be able to undertake strike action than those who have not taken the training. This IA has not assessed the impact…on staff willingness to be located at smaller Border Force outposts or to undergo the training necessary to carry out critical border security functions.”
Again, this becomes an issue of recruitment and retention in those specialist roles and those smaller ports right across these islands. What assessment has the Minister made of the impact that might have on recruitment and retention in these roles and those locations? If there are difficulties in recruiting at those locations, that is surely much more important to national security than the sledgehammer to crack a nut that the Government are bringing forward this evening.
My hon. and learned Friend the Member for Edinburgh South West referenced reports from the Joint Committee on Human Rights. The Government like to bandy about that other European countries do similar things, but they are not comparing like with like. What is being removed and undermined in this legislation is the right to strike, which is protected in some countries under their legislation. We are starting from a very different point and on a very different basis. This country does not have a formalised constitution. I argue very much that in a country that wishes to be independent and to have a formalised constitution these rights should be enshrined and protected and that the right to strike should not be undermined by a Government without a mandate to do so.
Grahame Morris
I am grateful for this opportunity to raise some points about this important legislation. As I mentioned earlier, I am a member of the PCS parliamentary group—and virtually every other trade union group, as a matter of fact.
I want to place on the record the concerns of PCS and the broader trade union movement about the implications of this legislation, which threatens to strip thousands of Border Force workers—and, we now learn, an as yet undetermined number of Passport Office workers—of their fundamental right to strike. That right should be protected not only by our own domestic laws but by international agreements. I raised that point earlier with the Minister, and it has been reinforced by the hon. and learned Member for Edinburgh South West and the hon. Member for Glasgow Central.
The work undertaken by Border Force and the Passport Office is undeniably crucial, but a substantial body of opinion in the trade unions and beyond believes that this legislation is contrary to international law. It is both dangerous and reckless. We find ourselves at a crossroads. By introducing such a measure, our Government seem to be turning a blind eye to our international commitments on the right to strike.
Fundamentally, it is imperative to acknowledge that the right to strike is enshrined in the Human Rights Act 1998, article 11 of the European convention on human rights, the International Labour Organization’s convention 87, and article 6, clause 4 of the European social charter. By pushing ahead with the legislation, the Government are unfortunately disregarding those vital international agreements.
I want to take issue with the Minister’s comments about what was happening in Europe and their legislation to restrict strikes. I happen to know from personal experience that French rail workers are part of an agreement; they have a different system of sectoral agreements. They staged a strike that had a paralysing effect on Eurostar services at the weekend, despite the legislation in place. The solution, I suggest, is not draconian legislation but negotiation and discussion to find an amicable solution.
We should not forget that the UK already has some of the strictest anti-trade-union laws in Europe. With the introduction of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014—I believe that you served on the Bill Committee, Ms Elliott—the Trade Union Act 2016, and regulations permitting the recruitment of agency workers during strikes, the Government have already placed significant restrictions on workers’ rights and have significant powers in their toolbox. This year, not surprisingly, we have witnessed widespread industrial action because of the cost of living crisis—not because people have been staring at a full moon. Ordinary working people are really struggling to make ends meet and to pay increased fuel and electricity bills. The price of butter and basic commodities, as well as rents, have increased, which has prompted workers across the economy, in both the public and private sectors, to go on strike.
The regulations, however, appear to be a crude attempt to undermine the effectiveness of trade unions and limit the ability of Border Force and Passport Office workers to take any effective industrial action. They could even lead to the absurd position of trade unions and their officials having to tell members who voted to withdraw their labour that they must come in on strike days.
Make no mistake: this is an authoritarian crackdown on human rights completely alien to progressive European rights and the notion of freedom of expression. If the regulations are really about service to the public they should address some of the more fundamental issues such as understaffing on non-strike days. The undeniable truth is that workers in both Border Force and the Passport Office play a vital role in the functioning of the United Kingdom and indeed, as Government Members have pointed out, in relation to national security. Rather than restricting their rights, the Government should consider proper remuneration as a means to recognise and appreciate their contributions.
The draft statutory instrument proposed by the Government, indicating that border services must remain as effective on strike days as on non-strike days, is not only restrictive but raises a legal question about the proportionality of such a measure. The impact assessment on border security minimum service levels warns that some people’s right to strike will ultimately be affected. Border Force staff numbers based at smaller ports and airports, as the hon. Member for Glasgow Central indicated, especially in Scotland, are very low, so staff based at these locations could be more likely to receive work notices and less likely to be able to undertake strike action compared with other staff.
There is an impact on those who have caring responsibilities and those who have disabled relatives. There are also issues of religion. Those are protected characteristics that a good employer would recognise, even on non-strike days, and seek to accommodate in staff rotas. The Government have estimated that 70% to 75% of staff at Border Force will be required to work on a strike day, which is three out of four workers. The Minister must explain why that level of minimum service is proportionate and why it does not amount to a complete ban on the right to strike.
The regulations on border security present the most restrictive minimum service levels to date, even when compared with other sectors mentioned by the Minister. This is not just an attack on the rights of workers but a departure from the progressive principles of European rights and freedom of expression. The Government and the Minister must provide a clear and proportionate justification for the measures, keeping in mind their obligations under international law and the rights of our citizens.
Joanna Cherry
It is a pleasure to serve under your chairpersonship, Ms Elliott, and a particular pleasure to follow the speech of the hon. Member for Easington.
I am grateful for the opportunity to make a few remarks about the regulations in my capacity as acting Chair of the Joint Committee on Human Rights. Back in March, we published a legislative scrutiny report on the Strikes (Minimum Service Levels) Bill, as it then was, and raised a number of serious concerns about the Bill’s compatibility with the United Kingdom’s obligations under international law, including in particular the right to freedom of assembly and association guaranteed by article 11 of the European convention on human rights, which of course is part of our domestic law by virtue of the Human Rights Act. As I said in my intervention on the Minister, although article 11 does not expressly refer to the right to strike, the European Court of Human Rights has interpreted it as covering the taking of strike action, for example in the case of Ognevenko v. Russia.
During the passage of the Bill, there were many references to arrangements in other European countries, as there have been today. To my knowledge, no European countries apart from Russia and Hungary impose minimum service levels from the top down, without negotiation or arbitration, in this way. I suggest that that is not company that the United Kingdom Government should wish to keep.
The draft regulations continue to cause the Joint Committee concern. We need to remember that, as we discuss in our report, the consequences of employees failing to work when required to do so by employers that impose minimum service levels through work notices, and of trade unions not taking reasonable steps to ensure that members comply with the work notices, include a loss of automatic protection against dismissal for participating in a strike. That is a major consequence for any individual worker, particularly in today’s climate, which was so ably described by the Member for Easington. In our original report, we expressed concern that such severe consequences may amount to a disproportionate interference with article 11. Having considered the draft regulations, we remain of the view that they could impose a disproportionate interference with article 11.
At the end of last week, in my capacity as acting Chair, I wrote to the Secretary of State for Business and Trade to raise concerns about the border security regulations and the other regulations being debated today. In particular, the border security regulations permit an employer to serve a work notice that requires border services to be “no less effective” on a strike day
“than they would be if the strike were not taking place”.
That kind of defeats the purpose of holding a strike, and therefore arguably completely undermines the right to strike. The Joint Committee on Human Rights recognises the crucial service carried out by border service staff and applauds them for it. But the proposed minimum service level raises a question not only about the ability of many individual employees to participate in a strike, but about the extent to which the strike could serve any purpose at all. As we have heard, particular concerns arise in respect of small ports and airports, where “no less effective” services could result in staff teams being effectively prevented from striking at all. As my hon. Friend the Member for Glasgow Central said, that would have a particular impact in Scotland, which has a number small ports and smaller airports.
The Trades Union Congress is rightly very concerned about the implications of both the Act and the draft regulations. I met with them a couple of weeks ago, after the regulations were laid, to discuss its particular concerns about the border security regulations and the other regulations. The TUC made the point that, in contrast to the other regulations, the border security regulations are very short, but they are very strict. They will mean that probably only one in four workers in this field will be able to go on strike and that services must remain as they are on non-strike days.
The regulations set out that border security services should be provided at a level that means they are no less effective. That will include the examination of people and goods, the patrolling of ports and airports, and the collection and dissemination of intelligence. It goes beyond security issues.
Grahame Morris
I am not a barrister or a lawyer, but I do think this is a really important point. Is there an analogy between reasonableness and proportionality? Would it be reasonable to have an independent arbiter of what constitutes a reasonable proportion of the workforce, rather than a Minister?
Joanna Cherry
That is what happens in many other European countries. Of course, any interference with the article 11 rights has to be proportionate, and given the extent of these regulations, there is a very real argument as to whether the interference is proportionate. I believe that it is not.
I note—and the TUC drew to my attention—that the Government estimate that the regulations will mean staffing levels of around 70-75% of Border Force. Only one out of four people working for Border Force will be able to exercise their right to strike; that strikes me as rather disproportionate. As my hon. Friend the Member for Glasgow Central said, this is all because the Government say
“all ports and airports should remain open on a strike day.”
As I understand it from the TUC, the Government are committing that they will agree to engage in conciliation for national disputes in relation to border security. Where the relevant unions agree, that would be helpful, but it is not written into the regulations. I wonder why that is not written into them; will the Minister address that?
The impact assessment for the border security minimum service levels warns, not surprisingly, that some people’s rights to strike will be effected. It says:
“As Border Force staff numbers based at some smaller ports and airports are very low, Option 2”
—the one the Government opted for—
“could mean that staff based at these locations are more likely to receive work notices, thus they are less likely to be able to undertake strike action, when compared with other staff. Similarly, the requirement to maintain particular border security functions during strike action could mean that officers trained in critical functions are less likely to be able to undertake strike action than those who have not taken the training.”
The point the TUC made to me is that it is unacceptable that such a profound effect on a fundamental right—that of the right to strike—should not be subject to a more detailed analysis than it has been in the impact assessment.
I have already raised a couple of questions that I want the Minister to address, and I will add two more. The Minister said in response to my earlier intervention about the law that the Government are satisfied that border security workers, particularly those at small ports and airports, will be able to exercise their article 11 rights if these regulations are passed, and the minimum service levels contained in them are imposed. Having regard to the points I have made about the numbers of people who would be prevented from exercising their right to strike—it looks like 75%, and indeed 100% at small ports and airports—will the Minister explain—
Katherine Fletcher (South Ribble) (Con)
Will the hon. and learned Lady give way?
Joanna Cherry
I will just finish the point.
Will the Minister explain how he is satisfied that preventing 75% of workers across the force, and all workers in certain ports and airports, from striking is a proportionate interference with the right to strike?
Katherine Fletcher
I am listening carefully to the hon. and learned Lady’s exposition on the rights of the workers of Border Force. I am just wondering where she thinks the balance is with the right of the British public to be safe. We know that we have some problems with criminality in the UK. Perhaps, for example, a drug dealer realises Border Force is on strike, and he thinks, “Fantastic, I will go to that small port and put 20 kg of children-killing heroin through it.” How can we find the balance of everybody’s rights?
Joanna Cherry
It is not for me to say what the balance should be; that is for the law. For the time being—thank goodness—this country is a signatory to the European convention on human rights. For the time being—thank goodness—we still have the Human Rights Act. The jurisprudence of the Court is pretty clear. As I said, it is normally countries such as Russia and Hungary that are taken to the European Court of Human Rights, not this country. We actually have a pretty good record in the European Court of Human Rights—[Interruption.] Let me just expand on this point. That will not continue to be the case if we pass these regulations.
It is a question of proportionality. The right to strike is not absolute; it can be restricted in accordance with law, but it has to be a proportionate interference. My point—
Joanna Cherry
The hon. Lady is going on about the rights of the public. Yes, of course the public have rights. The public have the same rights as the workers—in fact, many members of the public are workers. There is not some sort of strange grouping called “trade union members” and “workers”, and then the “public”. Many members of the public in this country are still trade union members. Many of my constituents are trade union members. Many of the hon. Lady’s constituents will be trade union members. These rights are rights of members of the public.
I think the hon. Lady is talking about the rights of the service users. Yes, the law does balance the rights, but it has to be a proportionate interference. My point is that when some workers are being prevented from striking altogether, and when in other cases 75% of the workforce are being prevented from striking, that is not a proportionate interference. We will not see such interference in other European democracies unless we care to dignify countries like Russia and Hungary with the word democracy—I do not think many of us would. That is the company we will be keeping. This is draconian. To suggest otherwise is simply, factually incorrect.
Grahame Morris
The hon. and learned Lady is making an excellent point, and making it far better than I could. I would like to reinforce the point. Article 11 states:
“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”
The right for trade unions to take industrial action is further enshrined in the International Labour Organisation’s convention 87 and article 6(4) of the European social charter. The legislation seems to disregard those legal obligations.
Joanna Cherry
I am grateful to the hon. Gentleman for that intervention—[Interruption.]
Joanna Cherry
Thank you, Ms Elliott.
Article 11 goes on to say that there can be an interference with that right only in accordance with law in a way that is “proportionate”. The whole point that I am trying to make is that this is not a proportionate interference with the right to strike. I am not saying that there should not be minimum service levels, and there are minimum service levels across Europe. We already have minimum service levels imposed by sectoral agreements in various areas of public service across the United Kingdom. We should be trying to reach those minimum service levels by agreement, and where agreement cannot be reached between the unions and the employers, then there should be arbitration. That is the proportionate way in which to do it.
I would like to wind up. If anyone is interested in the balance of rights, we addressed it in some detail in the Joint Committee on Human Rights report published earlier this year. First, how is the Minister satisfied that the regulations are a proportionate interference with the right to strike, when in some cases they will prevent all workers from striking, and in some cases it will be 75%? Secondly, what assessment have the Government made of the extent to which effective strike action is still possible in cases where services must be no less effective than if no strike were taking place? On what basis does the Government conclude that restricting strike action in this way amounts to a proportionate interference with article 11, both generally and specifically for those individuals identified in a work notice?
John McDonnell (Hayes and Harlington) (Lab)
I declare the same interest as my hon. Friend the Member for Easington, which is that I am a member of the PCS parliamentary group. Just so that everyone is absolutely clear and for the record, PCS is not affiliated with the Labour Party—there is no financial relationship to the Labour Party or any of us. We are in the group because we receive information from the union about what is happening on the ground, and it helps us to communicate in debates.
I have a particular interest in being a member of the PCS parliamentary group because Heathrow is in my constituency, and quite a sizeable number of the people employed by Border Force are my constituents. If Members present from all parties have the opportunity, it would be worth their sitting down and talking to some of those people. It is important that we recognise who we are dealing with here: trained professionals who understand that the role they play is important in protecting this country. They do so out of professional commitment and a deep sense of patriotism. In some instances, they put themselves at considerable risk, particularly in dealing with the drugs issues raised by Members on the Government side. They do not go on strike lightly. I find it ironic that emphasis is being put on the importance of the role that they play, yet when it comes to their wage negotiations that does not seem to be reflected in the offers they have had. That is why they have taken industrial action: because they could not find any other route to secure a wage settlement that in some way meets the challenges they face in the cost of living crisis.
My constituents live in an area where it is very difficult for most of them to afford housing, or even get on to the housing ladder, because of the increase in the valuation of properties. We must be honest and straight with people when we legislate. The reality is that three quarters of my constituents will not have the right to strike, if the level is 75%. That is the first thing. The other quarter will not have the right to have an effective strike, so in effect we are removing the right to strike from the bulk of them, if not all of them. Regulation 3(1) states that the level of service in relation to
“strikes as respects the border services is that, on each day of the strike, the border services are no less effective than they would be if the strike were not taking place”.
That undermines the whole effectiveness of industrial action and why people take it.
In addition, if Members look at the procedures set out in the SI and the draft guidance, they will see that so far there is no specific reference to the conciliation offered by the Minister. Not to bring forward this SI in particular alongside conciliation is almost an act of provocation, because it gives no succour to people who could argue, “At least we have something to fall back on to resolve our disputes.” That is not the case here. It places an onus on the trade unions themselves. The employer gives a week’s notice under the SI and can, up to the fourth day, change that notice and include different members of staff in it. The onus then falls on the trade union, not the employer, to contact them.
It is then up to the trade union to send out the letter—the draft letter is set out in the guidance for unions to use. Although it is only a guidance letter, we know from past experience that when there is interference with an organisation and the way in which it communicates with its members, it is often used in legal actions by others if people do not follow the exact wording. In addition, there is even guidance on how pickets are to be supervised. That goes well beyond what was discussed in the debate about the main legislation. The SI goes well beyond the main thrust of that debate and the legislation itself.
We need to get into the real world here. Imposing legislation like this undermines the industrial relations climate and worsens it significantly, particularly among this group of people, who feel they have done everything they possibly can. They have been forced into industrial action, they have a settlement, and now they just want to get on with their job. If this is enforced, it will undermine the morale of those staff. Do not think that people do not find other ways of taking action. There are real warnings from most of the consultations going on: if morale collapses and people get fed up, what do they do? They do not co-operate in all sorts of different, informal ways. Sickness levels will rise. People will find a way of protesting if they feel that they are being treated badly. That is the reality. It happens in every workforce if people think that the managers or employers are not treating them properly.
My big fear is that if the SI is implemented, when the first trade unionist who is identified and told that they must go into work says no, it will act as a spark to a tinderbox across the industrial relations scene in our country. That is not what we want, but the first time a trade unionist or trade union is fined, it will be seen as an act of provocation. I do not think that is the sort of society we want to construct. We need to try to get back to the process of negotiations, agreements and, accepting that there will be differences, finding a route to resolve them. Legislating people out of the right to take industrial action will result not only in inevitable legal challenges but, as we have seen historically, in wildcat action that is well beyond the control of any trade union. No union would seek to control its members in that way.
I say to the Government: be careful what you wish for. This is a hugely retrograde step and I think, knowing the workforce in the way I do, that it will undermine the service that the Government seek and that we all want the workforce to provide. It will impact on recruitment and the retention of existing staff, and on the overall service. I oppose this statutory instrument totally, and I also oppose the general thrust of the way the Government are developing industrial relations policy. I hope that wiser heads prevail in the Government. I hope they step back and postpone any form of implementation of the regulations, even if they go through, so that there are no provocative Government actions that impose on these professionals a duty or responsibility that makes matters worse rather than improves them.
Robert Jenrick
I will try to respond swiftly. I will first make a general point and will then come to some of the specific questions that were asked.
The general point is this. In some of the speeches we have just heard, although not all, there seemed to be a casual disregard for some of the issues we are dealing with. We are talking about how to maintain our national security and stop terrorists who, if allowed to enter our country, might pose a serious and credible risk to our fellow citizens. We are talking about how we ensure that, even on a strike day, we intercept sizeable quantities of drugs, weapons and contraband. We are talking about how we ensure safety at sea. We are talking about ensuring that migrants crossing in small boats do not drown and that when they arrive at Western Jet Foil and Manston, there are Border Force officers to do national security checks on them to protect the general public.
Even though it may not seem important to some, we are also talking about the queues at our airports, which all our constituents think are extremely important. Since I have been a Minister, few things have filled my mailbag as much as out-of-control queues at airports ruining people’s holidays and trips abroad, and making it difficult to do business travel.
What we are talking about today is not some incidental policy: it is absolutely critical to our country. As the Minister responsible for combating the strike action over the past year, I took the view, along with the Prime Minister and the Defence Secretary, that each and every one of those things matters immensely to our constituents.
Robert Jenrick
I will not give way to the hon. Gentleman.
That is why we deployed members of the armed forces. We asked young men and women to give up their Christmas holidays, often on pay and conditions substantially less than those of the Border Force officers whose places they were filling, to keep this country safe. That is why this measure is so important. I will not compromise on that, and I think it raises questions of fitness to govern if Labour Members do not consider these things to be important to our constituents and our country.
There was an extraordinary suggestion that we should respond just by closing ports. In what world would it be good for the United Kingdom to declare that the Port of Dover or Felixstowe is closed, or that there will not be any security checks at a small Scottish port because they do not matter? Well, they do matter: they matter to business, to national security and to the protection of the general public. The Government believe it is absolutely critical that every port in this country, large or small, stays open every day of the year, and that is why we are taking this action.
I turn to some of the specific points that have been raised, starting with the question of smaller ports. We take this issue seriously, and staffing requirements will depend on the exact nature of the strike. We will assess this on a case-by-case basis, depending on the circumstances, and we will take decisions to ensure that we are compliant with our legal obligations. To give an example of how we might do that, Border Force officers invariably move between ports on a regular basis. When we managed the recent strikes, we asked Border Force officers who were willing to come into work to deploy to ports where they would not ordinarily work, and in many cases they were willing to do so, so I am confident that that issue can be managed appropriately and in line with our legal obligations.
With respect to the question about introducing the regulations without having a voluntary arrangement for minimum service levels, we first sought the support and engagement of the unions, as one would expect, but they declined to engage with us. It was only when they declined that we decided to proceed with the policy. With respect to the question about the scope of the arrangements under the regulations, I go back to my earlier remark: those wanting to limit their scope need to say which things do not matter. Which of these things do they not want to be open on any given day? Is it that they do not want counter-terrorism activities to be happening? Do they want very large queues at our ports? Do they want goods no longer to be checked at the Port of Dover? That is what one has to think through, and we took the view that each and every one of those things matters, which is why we need to have the level of minimum service that we have set out in the regulations. However, I will caveat that by saying that the test is that the system should be no less effective. Not all border services are in scope—just those identified in the regulations—and we have not set out exactly which services would be operating on any given day, precisely because it would be extremely naive to signpost to terrorists, smugglers and criminals which activities would be stood down on any given day. We do not do that, we have not done it on recent strike days, and we do not intend to do it with the passage of the regulations.
With respect to the question about the Passport Office, we are applying the regulations only to those services that are integral to national security, and I hope that everyone across the House supports us in that regard. We estimate that that is no more than a dozen individuals, so with all due respect, I think the hon. Member for Easington is getting ahead of himself on that. The sorts of functions we are talking about include identifying stolen passports and forged documents, and I would not want to be the Minister for Immigration on a day on which we were not able to identify either of those things, because they are integral to the security of our borders.
Mary Glindon (North Tyneside) (Lab)
I declare that I am an associate member of the PCS union and a member of the all-party parliamentary group. I am saddened by the Minister’s assertion that the Opposition do not care about security. Border Force and the unions have stressed over and over again that they do not take strike action without careful consideration and heavy hearts, but it has been necessary. Does he think threatening to bring in other people to do the work and criticising people for striking, when it is the very last resort, is a way of engaging with the unions in future?
Robert Jenrick
I suspect I have a higher regard for people working in Border Force than some of those who contributed to the debate. It is precisely because what it does is critical to our security that I want to ensure that a minimum service level is maintained on every day of the week. I think Border Force is akin to a uniformed service. I do not think it is a doing a basic service stamping passports and letting people through our airports. It is protecting the public, which is why we need to ensure that we maintain the service every day of the week. I do not think the regulations will impact on recruitment and retention. In fact, we are enlarging all the relevant organisations, including the Passport Office, Border Force and allied organisations such as Immigration Enforcement and the Small Boats Operational Command. In most, if not all, of those cases, the jobs are oversubscribed, because thousands of our fellow citizens want to take part in this important work on behalf of the general public. With that—
Robert Jenrick
I have already said that the Government have made a clear and unambiguous commitment to have non-binding conciliation services with regard to the regulations. That is the offer we have made to the unions, and we intend to follow it through. I commend the regulations to the Committee.
Question put.
Draft Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023
(1 year ago)
General CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 10 / Noes: 7 - Question accordingly agreed to.
The Minister of State, Department for Transport (Huw Merriman)
I beg to move,
That the Committee has considered the draft Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023.
It is a pleasure to serve under your chairship, Sir Edward. The regulations will be made under powers conferred by the Trade Union and Labour Relations (Consolidation) Act 1992, as amended by the Strikes (Minimum Service Levels) Act 2023. The purpose of the regulations is to set minimum service levels that can apply to specified services during passenger rail strikes. These minimum service levels are designed to balance the public’s need to make important journeys and the impact of rail strikes on the economy on the one hand, with the ability of rail workers to take strike action on the other. It is my hope that strike action can be avoided, but the regulations will mean that when strikes take place, the rail industry can provide an improved and more consistent service, in a way that is proportionate and fair for all parties.
Let me give some background to the regulations. Strike action in the rail sector has occurred frequently in recent years, and has a significant impact on people’s ability to travel. Since 2019, there has not been a single day when there has not been either a strike on our railways, or mandates for strikes outstanding. The result has been many periods of disruptive strike action, in some cases resulting in the suspension of all rail services on affected routes. Between June 2022 and November 2023, there have been 42 days of widespread disruption caused by strikes. That can have considerable consequences for the passengers and communities affected. People often struggle, or are unable, to travel to work. Others have difficulty accessing vital services, such as education and healthcare. Businesses and the wider economy suffer. Enabling a minimum service to operate during rail strikes is a means of protecting against disproportionate impacts of strike action.
The Strikes (Minimum Service Levels) Act, passed on 20 July this year, establishes a clear framework for implementing minimum service levels. The Act amends the Trade Union and Labour Relations (Consolidation) Act 1992 to give the relevant Secretary of State the power to make regulations setting minimum service levels for specified services in six key sectors, including transport. In addition, the strikes Act sets out the framework through which minimum service levels can be deployed. It gives employers the ability to issue a work notice to a trade union if a strike is called on a service specified in the regulations. The work notice must set out the staff whose are reasonably necessary if the minimum service level set out in the regulations is to be met, and the work that those staff must undertake. The trade union must take reasonable steps to ensure that the trade union members identified in a work notice comply with its requirements.
The regulations for passenger rail specify three categories of service that minimum service levels apply to, and the associated minimum service levels. Category A is train operation services. Category B is infrastructures services, and category C is light rail services.
John Spellar (Warley) (Lab)
The Minister says that the trade union should ensure that its members comply with the work notice. What mechanism should it use to ensure that?
Huw Merriman
I will come back later in the debate to the right hon. Gentleman’s point about the action that we would require trade unions to take—or rather, not take—to ensure that the standard is met.
Let me explain categories A to C. Category A covers train operation services provided by passenger train operators under agreements with the UK Government, including services provided as operator of last resort, and by devolved Governments, and local transport authorities and executives. It therefore excludes services provided by open-access and freight operators; heritage and tourist services; and international train services that start or finish outside Great Britain. The minimum service level for train operation services is the provision of those services necessary to deliver the equivalent of 40% of the operator’s timetabled services, as shown in the most recently published National Rail timetable, during the strike.
Vicky Ford (Chelmsford) (Con)
My constituency of Chelmsford has a particularly busy train station. Indeed, I am told it is the busiest two-platform train station anywhere in the country outside London. It is used by many people to commute to work, and by many young people to get in and out of schools and colleges. I am absolutely delighted to support the regulations, because train strikes have made those people’s life an absolute nightmare. Does that 40% figure mean 40% across the whole day, or will the 40% rate apply in the rush hours, so that my young people can still get to school or college?
Huw Merriman
I thank my right hon. Friend for her point. The 40% of train operation services is 40% of services across the train operator’s timetable as a whole. It applies for as long as that timetable runs. I will go on to talk about category B, because that is hours-specific guidance.
Category B covers services listed in the regulations that are provided by infrastructure managers. During strikes by railway infrastructure workers, the minimum service level is the provision of services between the hours of 06:00 and 22:00 on the priority routes that are listed in the regulations, and on certain enabling infrastructure within a 5-mile radius of the priority routes, including connections to depots, sidings, and rail freight terminals.
Category C covers train operation and infrastructure services provided on the 11 light rail systems specified in the regulations. The minimum service level is the provision of services necessary to deliver, during the strike, the equivalent of 40% of timetabled services as shown in the most recently published timetable issued by the operator of the light rail service.
We have designed the minimum service levels to address appropriately the type of strike action that we typically see, and to ensure that the levels are operationally viable for employers. The minimum service levels are intended to achieve a suitable and proportionate balance between delivering benefits to passengers and the wider economy, and workers’ ability to strike. Our work has been informed by extensive consultation and engagement, including a public consultation between 20 February and 15 May of this year, and consultation with train and infrastructure operators, passenger representative groups, unions, and a wide range of other stakeholders.
Once in force, the regulations will apply to any future strikes, even if the mandates for those strikes predate the primary legislation, which received Royal Assent on 20 July this year. That will allow employers in the rail industry to use these regulations as soon as they come into force, should they choose to do so. The Government have identified passenger rail as a priority for minimum service levels. These regulations deliver on that commitment, and deliver on the 2019 manifesto.
Huw Merriman
I am not giving way. I said I would come back before the end of the debate on the points the right hon. Gentleman made.
The regulations mean that train operators will be able to provide the equivalent of 40% of their timetable during strikes, whereas on some recent strike days, a number of companies have been unable to run any effective service at all. During full-day infrastructure strikes, priority routes can be open for 16 hours, instead of the 11 hours provided for under the industry’s current contingency arrangements, with some additions to the routes normally provided. Importantly, this will enable industry to encompass both the morning and evening peaks, so passengers will have more certainty around getting to work and returning home in the evening. These regulations are a positive step towards addressing the impact of rail strikes in a proportionate way. I commend them to the Committee.
Stephen Morgan (Portsmouth South) (Lab)
It is a pleasure to serve under your chairmanship, Sir Edward. I thank the Minister for his explanation of the purpose and content of the legislation. Labour does not support the passing of this instrument. The Government’s failed approach to industrial relations has led to the worst strikes in decades, and this legislation will do nothing to solve those issues. Last December, the Transport Secretary admitted that minimum services for rail is “not a solution”, and that the way to get a better service was to “resolve the disputes”. The Government’s own impact assessments on this legislation in the transport sector admitted that the plans could increase strikes, disruption short of a strike, and chronic staff shortages. Even the architect of the law, the former No. 10 adviser Andrew Gilligan, said the plans may
“promote more industrial action than they mitigate”,
and will not ensure smooth services. The chief executive of the Rail Safety and Standards Board said the proposals
“won’t make the slightest bit of difference”.
Minimum service levels do not stop strikes in Europe. Countries such as Spain and France lose far more days to strikes than the UK. In Spain, minimum service levels have led to messy legal battles and delayed solutions to industrial action. It often takes the courts around a year to solve disputes on MSLs.
The impact assessment for the statutory instrument was first submitted on 12 October for scrutiny by the regulatory policy committee, which found that it was not sufficiently robust and identified areas where improvements should be made. The RPC confirmed that the points that it raised would generate a red-rated opinion, if not addressed adequately. The legislation is so rushed that the RPC has not been able to provide an assessment of the updated impact assessment, which was submitted only earlier this month. Given that the legislation has safety-critical implications and involves complex arrangements, it is absolutely staggering that the Minister is refusing to produce the impact assessment before Parliament has the chance to vote on the regulations. This is dreadful policymaking practice, with potentially serious consequences.
John Spellar
In my earlier exchange with the Minister, was there not a clue to the reason why he cannot provide the impact assessment? It is because he does not have a clue what the impact will be. Fundamentally, he does not know how the regulations will work. That may not be his fault; it may be the fault of whoever drafted the regulations. I am not saying that such measures could not work, but there is nothing I can see in the documentation that indicates how the regulations could work effectively.
Stephen Morgan
I thank my right hon. Friend for that scrutiny, and I agree with him. This is the challenge we face with this Government: they are not willing to listen or take on board our concerns about the legislation. Where was the response to the point my right hon. Friend raised earlier? That raises the question of why the Government are not willing to wait for the impact assessment to be reviewed before pushing this legislation through; they realise how poorly thought-through these plans are.
Over the past 13 years, the Conservatives have consistently attacked rights at work, including through the Trade Union Act 2016, the Strikes (Minimum Service Levels) Act 2023 and the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. Labour will repeal all of them to give trade unions the freedom to organise, represent and negotiate on behalf of their workers. A Labour Government would ensure that trade unions could get on with their job of standing up for working people, and ensuring that industrial relations are based on good-faith negotiation and bargaining. That will end the Conservatives’ scorched-earth approach to industrial relations, ushering in a new partnership and co-operation between trade unions, employers and Government, and putting us in line with high-growth economies that benefit from more co-operation and less disruption.
We need clarity from the Minister on a number of issues. First, when will he receive the regulatory policy committee’s review of the impact assessment? Why has this Committee been scheduled for today, ahead of this review being published? The rushed nature of the legislation has created significant legal grey areas, so workers and employers will be uncertain about where they stand. As the TUC has stated, that is particularly troubling because the consequences for unions and workers of falling foul of the legislation could be enormous, with unions potentially facing damages of up to £1 million.
We need clarity on how many people will effectively be denied the right to strike. The headline is that 40% of rail services will run during strikes, but delivering that is likely to require a lot more than 40% of staff, once consideration has been given to issues such as cover staff. Will the Minister confirm how many staff will be denied the right to strike by the legislation? How will the issue be managed across the network? For example, what happens if there is a strike by multiple operators and Network Rail on the same day? How many signallers would be needed to ensure that 40% of those operators’ services could run? All sorts of safety concerns could be created. In theory, could all signallers be given work notices on a strike day? What would happen if a driver named on a work notice refused to operate a service because of safety fears, such as severe overcrowding? Would such a refusal be treated as a breach of the work notice?
Finally, will the regulations extend to the freight sector via the back door, given that freight services and workers are often used by passenger operators and Network Rail to ensure a good service on the network—for example, on recovery services?
This statutory instrument is being rushed through without proper scrutiny and raises far more questions than answers. Labour has been consistently clear that this shameful assault on the rights of working people will do nothing to stop industrial action on the network, and we oppose it. Indeed, as the Government themselves admit, it could make industrial action worse. This unworkable legislation could have very serious safety implications, which the Government have steadfastly refused to address.
The fact remains that only the Secretary of State getting around the table will solve the ongoing rail dispute—something he has refused to do this whole year. Rather than launch yet another attach on workers’ rights, is it not time that the Conservatives showed some responsibility, went back to negotiations and sorted out this dispute?
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
It is a pleasure to serve under your chairmanship, Sir Edward. I very much look forward to hearing the Minister’s full response to the questions from the Labour Front Bencher. Also, given the intervention from the right hon. Member for Chelmsford (Vicky Ford), will the Minister say whether Chelmsford is covered by the priority routes in the regulations? I will stand corrected if it is, but I have looked through the routes a couple of times and cannot see Chelmsford. I do know whether that will help the right hon. Lady’s constituents.
A breakdown in industrial relations in a train operating company can, as elsewhere, result in disruption for the long term, as workers who volunteer for rest-day working decide to take their rest days, overtime is knocked back, and good will disappears. No doubt some service managers think that they will be able to use the regulations to bully staff back to work, but the fact is that they would cause longer-term damage to the rail network and the industry. The Government are facilitating that damage through their legislation and the regulations that are before us.
Do the Government seriously think that when the industrial action is over, the workforce will be keen to go back to working under the managers and decision makers who threatened them with criminal charges if they did not comply? It does not take an expert in industrial relations to work out that the legislation could only harm relations between management and staff, and in turn harm our rail network and the wider economy. Perhaps that is why the industry has repeatedly expressed its reluctance to get involved. While the primary legislation was passing through Parliament, the Rail Freight Group told the Transport Committee—after the Minister’s time as its Chair—that
“our members who are private companies wish to manage their relationships with the trade unions directly rather than with any legislative overlay.”
Transport Focus said:
“There is no substitute for good, modern industrial relations in any industry where changes and terms and conditions are negotiated, and agreement is reached. You want to have workers who want to come to work.”
The Government have repeated their proportion of 40% in order to give the impression that the majority of striking workers will still be able to avail themselves of their human rights, but given the nature of work on the railway network—signalling, station management and maintenance, dispatch, ticket gates, public safety and so on—the reality is that far more than 40% of staff will be ordered to work.
The Scottish Government continue to regard the legislation as unnecessary, unwanted and ineffective. It seeks to undermine legitimate trade union activity and goes against the principles of fair work, the interests of the Scottish public, workers and employers, and the delivery of public services in Scotland. The UK’s record on employment rights, and indeed basic human rights, is exemplified by the International Trade Union Confederation’s annual report on workers’ rights, which this year ranked the UK alongside such champions of workers as El Salvador, Angola and Qatar.
Further to the points about the efficacy of minimum service levels in other countries, let us say hypothetically that the Scottish Government supported this idea. A look at the priority routes I mentioned to the right hon. Member for Chelmsford proves that Mick Lynch was right when he said the Government and the Department for Transport do not care about Scotland or Wales. The most northerly station covered by these priority routes is Cowdenbeath, which is barely one third of the way up mainland Scotland and 170 miles as the crow flies, or 270 miles and three train journeys, to the most northerly station, in Thurso. Therefore, even if we supported these priority routes, they would mean nothing to vast swathes of Scottish passengers.
To be crystal clear, the Scottish Government are not interested in using any of the powers the UK Government have grabbed for themselves. The Cabinet Secretary for Wellbeing Economy, Fair Work and Energy has made it clear that the Scottish Government will not co-operate in establishing any minimum service orders in Scotland over which Holyrood has competence, which is nearly all of them.
I am grateful to the Government for highlighting through their regulations the continued illogical control of Network Rail in Scotland by Westminster and the DFT. The UK Government cannot impose minimum service levels on ScotRail or the Caledonian Sleeper, because both are under the auspices of the Scottish Government—better still, they are publicly owned by the Scottish Government. However, because Network Rail remains undevolved, these regulations can be applied to track and infrastructure. So we have laws being applied to force employees to work, and trade unions to take part in that coercion under pain of criminal penalty, in order that train tracks, signalling and stations remain open and semi-functional to serve trains that will not run, because the Government who run them actually respect individual human rights. What complete nonsense! It is another nail in the coffin of the idea that Network Rail in Scotland should remain outwith the control of Scotland. Given that no services will run on all the routes I have just mentioned, will the Minister confirm that a higher proportion of Network Rail staff in Scotland will be able lawfully to withdraw their labour compared with their counterparts south of the border?
The truth is that the overwhelming consensus in Scotland—among three quarters of Members of the Scottish Parliament, over 85% of MPs, and trade unions serving Scotland—is that these work regulations are wrong, like much of the UK Government’s attitude to workers’ rights. Indeed, polling shows that the strongest opposition in this island to minimum service levels comes from people in Scotland. So when Ministers say that this legislation is what the people want, I am not so sure that that is true south of the border, but it certainly is not true in Scotland. That is just one reason why we will vote against the regulations this evening.
John McDonnell
I am not sure I want that on the record.
The Minister has responsibility for transport, but I do not think that any Transport Minister, including him—when we have gone through lengthy industrial relations problems on rail and many of them are being concluded, and when we might be entering a period of relative industrial peace on rail—wants to carry out such a hugely provocative act, which could pour petrol on the fire and start the problems up all over again, but these proposals could do that, because people will be angry.
As has been mentioned, the reality is that a number of staff, because of the safety-critical role they play, will lose their basic right to strike, against all the international conventions and international agreements we have signed up to and against the human rights legislation we have endorsed over the years. They will lose their right to strike.
In addition, if we take the evidence that has been put before us all the way through this debate from those in the industry, the train operating companies, when they have been consulted, have clearly said that this legislation and its implementation in this sector will increase disruption. Even the Government’s own original impact assessment said that, and we can see why. It is because the Government are interfering in the basic right of trade unions to represent their members—the very reason they were formed.
But it goes further than that. This statutory instrument is retrospective. We in this House understandably have concerns about retrospective legislation, as most people feel it is unreasonable and irrational, but this legislation, in particular, will apply to current disputes, where ballots have taken place quite lawfully and the dispute is going ahead.
In addition, the onus placed on individual trade unions will almost undermine the operation of the Government’s proposal. Let us take just one example. The employer has to give seven days’ notice—fair enough. The trade union is then required to identify which workers are in the notice and whether they are its members, and it then communicates with them directly. But the employer can come back on the fourth day and vary the order, either to delete or include other workers. To be frank, I think the administrative burden on trade unions is such that it will place the whole process in jeopardy.
There is another element, which I had not noticed before, because it was not debated when the original legislation was brought forward: the introduction of Government control of picket lines in a way that was never rehearsed in the original debate. I do not know how many Government Members have been on picket lines—but we are expecting trade unionists to supervise the picket line and behaviour in relation to communication with members of staff, and to have before them and check through the full list of all those who have been identified as being required to work, when it comes to whether the picket line members can just talk to them.
Chris Stephens (Glasgow South West) (SNP)
It is even more perverse than, isn’t it? Some of the people identified in the varied work notice could be trade union representatives—those we would expect to be on the picket line maintaining good order. It is a real concern that trade unionists are going to be identified, picked on and bullied through this legislation.
John McDonnell
It is a recipe for further conflict—I think for disaster—at every stage.
The Conservative party prides itself on the defence of civil liberties: not interfering in civil society organisations because that is an intrusive step by the state. But under this statutory instrument and the draft guidance, the Conservatives are actually telling trade unions how to write the letter to their members encouraging them to comply with the legislation and go to work. Now, unions will be almost forced to comply with that draft guidance, because if they use other language, as we have seen in the past, lawyers acting on behalf of the train operating companies or others will pick through it in precise detail. I have never seen this before: the state actually dictating the language to be used in a civil society organisation’s communication with its members. This has gone a step beyond anything we have seen in the past.
Let me explain the reality of industrial relations: if the Government try to prevent people from taking strike action, they will find other mechanisms. We have seen wildcat strikes in the past in our country; we have tried not to encourage them, because we want industrial relations to be orderly, but if people are told to go to work, instead they will go sick, they will work to rule, and they will not be as committed in the job as they should be. It is obvious that that will happen when the industrial relations climate is soured like that.
We have been trying to get absolute clarity from Ministers on whether the use of this legislation by companies is discretionary, and we have been given assurances that it is. But the reality in the rail industry at the moment is that it is not the companies that are engaged in the industrial relations conversations; it is the Government that are determining the industrial relations decisions, so it will be up to the Government, not the TOCs, to decide whether to employ this strategy to defeat the unions or to try to constrain the unions to reform in some way.
The Government should be careful what they wish for. To introduce this legislation and put petrol on the fire at this stage, just when there is the potential for negotiated settlements, a period of industrial relations co-operation and the development of a new spirit in the industry, could be completely counterproductive. The Government should think before they act in this way. I would rather the Minister wait for the impact assessment, which we have been promised but which has not been delivered, so that we can properly consider all the implications of this statutory instrument, and just hold back. What is the rush, particularly when negotiations to resolve some of the final disputes are taking place, and when the Government have withdrawn their plan for the closure of ticket offices, which was one of the major contentious elements of the dispute? This measure is precipitous and provocative, and it is dangerous for the future of our industry in the coming period. I urge the Government to think again.
John Spellar
I thoroughly agree with my right hon. Friend the Member for Hayes and Harlington—people do not hear that very often.
I may be being a bit unfair to the Minister but, as colleagues have indicated, there is a question as to whether his heart is in this, or whether it has been dreamed up by political pointy-heads in No. 10 who think they can run the next election on “Who runs the country?” I merely caution the Minister that the historical precedents for that are not encouraging. That is exactly what Ted Heath did in 1974, to which the response of the Great British public was, “Not you, mate.” These things can blow up, and what are thought of as weapons turn out to be boomerangs.
My right hon. Friend rightly identified one of the core problems, but the other is the way in which the railways were privatised. I am not getting into the argument about whether they should have been privatised, although, interestingly enough, Margaret Thatcher did not privatise rail, for the very good reason of all the practical complexities that it would entail. The creation of separate companies meant that negotiations dealt with one company after another and that, in fact, rail workers’ wages went up significantly. The Government seem to be trying to deal with that by sitting behind the negotiators—not at the table, but behind the curtain—and putting the arm up the back of the rail companies, preventing them from reaching an agreement that, as I understand it, they would not be averse to. The Government seem to want the dispute to go on, possibly for political reasons, even though they have settled in other parts of the economy. This measure would actually bring the Government right into the negotiations. Why not do things in the sensible way, by being part of the negotiations to try to reach a settlement, especially given that, as was mentioned, the industrial action seems to be largely receding?
I come back to the question I posed to the Minister: how does he think this will work? Even during the second world war, with the Defence of the Realm Act 1914, order 1305, all the powers and a national emergency, the Government could not to prevent strikes from taking place. When there were strikes in the mines, it was rightly said that we could not dig coal with bayonets. That does not mean that we should not try to resolve the strikes or that we should give in to every strike, but the blunt instrument of legislation has proved ineffective time and again, partly because of the ingenuity of the members, who will find ways around it, and partly because it starts to run up against the public’s concept of fair play. We saw that with the Pentonville five and the docks dispute, for example. I come back to my question, and I hope the Minister has had a note to tell him how this legislation will work—he can even intervene if he wants. What mechanism is the trade union supposed to use to ensure that enough workers attend to get to the 40% service? Is it expected to expel members, who will then go off and form an independent union? We would then have more multi-union competition going on.
The Minister will be pleased to know that, because I have a bad cold and my voice is giving out, I am about to conclude. The final point I will make is that the Government put a lot of weight in their relationship with the United States, including the possibility of a transatlantic trade deal. Given that this is the most pro-union Administration since Franklin Roosevelt’s, if the Government think that introducing anti-union legislation will in any way endear them to the US Congress and the White House, they have another thing coming.
Mick Whitley (Birkenhead) (Lab)
I refer Members to my entry in the Register of Members’ Financial Interests and my membership of Unite the union.
The passengers’ representative Transport Focus told the Transport Committee:
“There is no substitute for good modern industrial relations in any industries where changes and where terms and conditions are negotiated, and agreement is reached because you want to have workers who want to come to work.”
That is the view shared by the majority of the public, as well as by the Scottish and Welsh Governments, which have said that they will decline to enforce minimum service levels. Will the Minister explain why the UK Government—in stark contrast to the devolved Administrations—are so singularly incapable of engaging with trade unions in good faith and instead feel the need to resort to these repressive, anti-democratic measures?
Rail is a safety-critical industry, with the vast majority of rail staff having some safety-critical element to their role. The Government’s deliberately divisive measures, which would compel workers to cross their own picket lines or else jeopardise their own and their colleagues’ most basic employment protections, risk causing serious damage to the spirit of co-operation and trust that is central to the safe running of our rail network. Does the Minister accept that if the Government took the time to listen to rail workers, they would recognise that, far from improving the service provided to commuters, these measures actually risk undermining passenger and staff safety?
There are few things harder for a trade unionist to contemplate than being forced to cross their own picket line. Does the Minister accept, as the Rail Safety and Standards Board has, that many union members who have been instructed to go to work despite having voted to take strike action may simply go off sick, and that this will make the planning of minimum services chaotic and unpredictable and increase risks to passengers?
These regulations risk creating a situation where a guard who has been issued a work notice might feel compelled to take out a train that they believe to be unsafe, when they previously would not have. Does the Minister share my concern that these regulations risk creating a conflict between rail workers’ responsibility to work safely and the requirements to comply with work notices or else lose vital employment protections?
Joanna Cherry (Edinburgh South West) (SNP)
I am grateful for the opportunity to make a few comments about the human rights aspect of the regulations in my capacity as acting Chair of the Joint Committee on Human Rights. When the Committee published a very full legislative scrutiny report on the parent Act in March, we raised serious concerns about the Act’s compatibility with the UK’s obligations under international law, in particular the rights to freedom of assembly and to freedom of association under article 11. We share those concerns in relation to these regulations and the way in which they have been framed. As the Minister is aware, the European convention on human rights is, thankfully, still part of our domestic law, due to the survival of the Human Rights Act 1998. Article 11 does not refer expressly to the right to strike, but it has been interpreted as covering the taking of strike action—in a case brought against the Russian state, ironically.
When the Joint Committee on Human Rights took evidence from international law experts, the only country in the whole of Europe they could think of that had similarly draconian legislation to the United Kingdom was Hungary, as well as Russia, of course, although Russia has now left the ECHR—rightly so, after the invasion of Ukraine. I am not sure that the UK Government should want to be in the same grouping as the Government of Hungary, but by bringing in this draconian legislation, they are.
Article 11, as I said, has been interpreted as covering the taking of strike action. The European Court of Human Rights has also referred to requirements set down by the International Labour Organisation when assessing compliance with article 11. I know from my recent meeting with the TUC that it has reported the Government to the ILO in relation to the parent legislation, and it is also concerned about these draft regulations. In legal terms, a qualified right to strike is also provided for by article 8 of the international covenant on economic, social and cultural rights and article 6.4 of the European social charter, both of which bind the United Kingdom in international law.
Compliance with article 11 of the ECHR requires that any restrictions on strikes are
“in accordance with the law”,
which includes a requirement that the consequences of the law must be foreseeable for those it affects—we heard earlier that perhaps that is not so in the draft regulations. The restrictions must also be
“necessary in a democratic society”
to meet a “legitimate aim”. That condition requires the restrictions to meet a “pressing social need” and for them to be
“proportionate to the legitimate aim pursued”.
I very much question whether these draconian regulations are proportionate to the aim being pursued.
The Committee might recall that at the tail-end of the year before last, the Government introduced a Transport Strikes (Minimum Service Levels) Bill, which had an alternative mechanism in it. That was going to be based on negotiation and independent resolution of disagreements about minimum service levels. That kind of approach would reflect standards set out by the International Labour Organisation, and would involve less interference with article 11. It would therefore be more likely to meet the requirement of proportionality.
The Government have never adequately explained why they went from initially proposing negotiation and an independent resolution of minimum service levels to the draconian imposition of them. I will be interested to hear if the Minister has been able to come up with an answer to that.
As I said, the Joint Committee on Human Rights had similar concerns about the draft regulations as we did about the Act. Last week, in my capacity as acting Chair, I wrote to the Secretary of State for Business and Trade setting out our concerns about the regulations. In doing so, I was very conscious of the fact that the consequences of employees failing to work as required by a minimum service level imposed through a work notice, and of trade unions not taking reasonable steps to ensure that their members complied, would include a loss of automatic protection against dismissal for participating in a strike. That is a big deal.
Sometimes, Government Front Benchers talk about the rights of the public as though somehow those rights were in conflict with the rights of trade unions in exercising the right to strike, but trade unionists and workers are members of the public. They face very straitened times at the moment, with the cost of living crisis, and some people are struggling to make ends meet. If people are struggling to make ends meet and their wages are not being raised in line with inflation, in particular in relation to energy bill inflation, the only option they have is to withhold their labour in a dispute. It is a fundamental part of our democracy that they should be able to do that.
Chris Stephens
I am grateful to my hon. and learned Friend for her excellent speech. She is correct to say that the Government do not support decent wages for workers. I go back to the point that she made about protections from dismissal, because she is articulating the fact that, under this legislation, anyone could be dismissed without the right to an employment tribunal. Can she name any other groups of workers who do not have that basic right?
Joanna Cherry
The Joint Committee made that point in our initial report. A trade union’s involvement in an illegal strike could result in damages of up to £1 million. Any individual worker who participated in a strike that was found to have been illegal could be dismissed. The difficulty with these draft regulations is that workers and trade unions may not be able to foresee the legality of action, which is why the penalties are particularly concerning. We pointed out that lesser penalties for individuals—suspensions rather than dismissals— would make interference with the right to strike more proportionate.
John McDonnell
Let me try to give a concrete example of what the hon. and learned Member is talking about. An employer can take a union to court and argue that it has not performed its role of encouraging workers to go to work. As a result, the strike is rendered illegal. Any individuals who participate in that strike would therefore lose their legal protection against unfair dismissal. We could have employers using this as an opportunity to sack a large number of their workers. They could shed workers at will.
Joanna Cherry
To be frank, these are the kinds of laws and consequences that workers in Russia and Hungary face. We do not want them here in the United Kingdom.
Of course there should be minimum service levels; I am not arguing against that. However, they should be reached through negotiation. When negotiations between unions and the employer break down, there should be arbitration. That is what happens in a lot of other European countries.
I am concerned that the regulations on passenger trains would allow an employer to require 40% of timetabled services to run. That would allow some employees to participate in strikes, but infrastructure services such as signalling would have to be provided between 6 am and 10 pm for a substantial number of priority routes. That gives rise to a risk that employees working on those lines would be effectively prevented from striking.
I have met the TUC to discuss its concerns about these draft regulations. It made a number of points, some of which have been covered already, so I will confine my remarks to those that have not been covered. It said the rail industry is highly complex, so the effect of the draft regulations on the right to strike is difficult to quantify without access to industry information. The impact of any work notice will depend on how an employer seeks to deploy it. The TUC is concerned that the regulations will prevent many workers from taking industrial action. It says that providing 40% of a service is likely to require a lot more than 40% of staff once consideration has been given to cover staff, for instance.
The TUC also fears that many infrastructure staff on priority routes, including signal operators, will be denied the right to strike completely because their presence is necessary for the routes to run. It shares the concern I articulated in my letter to the Secretary of State for Business and Trade.
The TUC also made the point that the Government seem to have given little consideration to safety and the role of transport workers in ensuring that passengers are safe. Overcrowding could be a real issue when only a partial service is running. Rail workers need to know that they can apply “work safe” principles and, if necessary, stop working. It needs to be clear that, in those situations, staff would not face legal consequences—or political opprobrium from the Government.
The TUC also raised the significant uncertainty over whether the draft regulations include or exempt those working on freight services. Will the Minister clarify that?
The main point I want to raise with the Minister, and on which I want an answer, is this: what assessment have the Government made of the extent to which the article 11 rights of those working on passenger rail infrastructure on priority routes would be protected in cases when services must be provided between 6 am and 10 pm on strike days? A proper, full assessment with regard to the law is required to have been made in that respect in order for this to be proportionate interference with rights under article 11. I do not believe that that has been done, and I do not believe this is proportionate interference.
Huw Merriman
I thank all right hon. and hon. Members for their points. I should start with the right hon. Member for Warley, given that I said I would come back to him. His question was along the lines of what steps will be required. It is a generic test—it is a legal definition that one would look at. I can read it to him. It is not off a blue Post-it note; it is actually in the guidance. To paraphrase, when a work notice has been issued by a relevant employer, a trade union is under an obligation to take reasonable steps to ensure that its members named in the work notice comply with its requirements. In that regard, there is not that much of a role to play. I should make it absolutely clear—I think there were errors in some hon. Members’ starting points—that a work notice makes no differentiation between whether an employee is a member of a trade union or not, or whether they want to work or not. It is a generic test in that sense.
On the point made by the hon. and learned Member for Edinburgh South West, certain individuals may therefore find themselves on a work notice more than others, so some regard will be given to ensure that if a work notice has been given to an employee in one particular industrial action, they are not taken up the next time to ensure they have their right to strike. To go back to the right hon. Member for Warley, it is more that the trade union should not take any steps to stop that individual coming to work under a work notice, rather than it being required to do anything, but it is a test. I worked as an in-house lawyer for 18 years, and I often looked at what reasonable steps meant and how I would interpret that. There is enough precedent in court to do that.
John McDonnell
It is absolutely critical to get this clear. If a trade union leader engages in a debate during a dispute and argues that the offer from the employer is not satisfactory, and therefore that there should be a strike and people should take industrial action, does that influence the requirements of taking reasonable steps, or does it go beyond reasonable steps?
Huw Merriman
What the right hon. Gentleman is describing is the calling of industrial action in the first place. The idea behind these regulations, of course, is that, when industrial action has been called and an employer chooses at their discretion to issue a work notice—I will come back to that, because it is key that it is not the Government but the employer who decides—that is where the determination comes in. It is whether the trade union, after the work notice has been issued, is taking reasonable steps, so I would differentiate in that regard.
John McDonnell
So if that debate takes place while the strike is on, and the trade union general secretary urges their members to continue with the strike, does that influence it? Is that part of undermining and encouragement?
Huw Merriman
Well, I am going into a lot of detail here, and that would ultimately be for a court to determine. I suppose the right hon. Gentleman is asking what happens if a person is known to be on a work notice and somebody reads out, “X must ensure they are taking industrial action.” The courts might argue that that is not a reasonable step, but hopefully our examples have given enough clarity.
Again, I want to be absolutely clear on this point. I have a great deal of respect for the hon. Member for Paisley and Renfrewshire North, and I was interested in the point he made about Scotland. It is absolutely clear that it is down to each individual employer to determine whether they wish to issue work notices or whether they are able to gain enough traction from the workforce without the issuance of work notices. That is not a matter for Government; it is down to the employer. I was intrigued that the hon. Gentleman made it pretty clear that he would not give the same freedom to employers when it comes to ScotRail, because he seemed to intimate that it would not be taking part. He seems to be taking more of a forthright view of what the employer should do than the Government.
Gavin Newlands
ScotRail is owned and operated by the Scottish Government, who have been very clear in their attitude to this legislation: they will not issue work notices. While I am on my feet, I want to quickly ask about Network Rail, which is obviously a reserved issue that comes under the auspices of the Department for Transport, but it operates slightly independently in Scotland. Some of its workforce will potentially fall under a work notice for DFT, but obviously a lot of network in Scotland is used only by ScotRail. How will that work?
Huw Merriman
There are interesting parallels. When I talk about train operators, I also mean the operators of last resort: Southeastern, the east coast main line and TransPennine Express. They are under the same control that he referenced the Executive in Scotland having. We, as the Government, will treat those with the exact same autonomy, and will not be autocratic; we will not tell them what they must and must not do. There is talk of this legislation being controlling, but we are demonstrating that we are not being controlling, whereas the hon. Gentleman is demonstrating that he would perhaps intervene, which is obviously a policy matter for him.
Network Rail is, of course, an arm’s length body. It will be down to Network Rail across the whole of Great Britain to determine whether it wishes to use the work notices, when it comes to category B. That will be a matter for Network Rail in Scotland, as it will be in England, and not for me, the hon. Member or the Scottish Executive.
I want to come back to a point that the hon. Member for Portsmouth South and others mentioned: safety. Let me be absolutely crystal clear—this is why we have the safest railway in Europe—that there will be no compromise when it comes to safety and these regulations. Those are not just words. Everyone needs to remember that we already have a minimum service; it is the key route strategy, and it operates right now, but our contention is that it does not operate to the same extent—it is about 20%. Safety is the most important ingredient during a strike day, as it is during a non-strike day. There will be no difference to that, as far as the regulations are concerned; safety will always be paramount in the railways.
Jess Phillips (Birmingham, Yardley) (Lab)
I wonder whether the reason that we have one of the safest railways in the world is the same reason that my family and I do not have fingers missing from industrial accidents. Maybe the people we should thank for that are the trade unions.
Huw Merriman
Of course I pay tribute to everybody on the railway who takes safety so seriously, but it is fair to say that we had trade unions when we did not have such a safe railway, and we have them now that there is a safe railway. That seems to suggest that it is the entire railway family that makes railways safe. We have the independent Rail Safety and Standards Board, and we will ensure that safety is paramount on the railways.
I will touch on freight. Freight is not included in the regulations. That was part of the consultation; the freight industry did not wish to be included, but, of course, freight benefits from the regulations. If there is an infrastructure strike and more of the key route network can be opened up, that means that more freight can be delivered, as well, which is important.
I come back to a point made by the hon. Member for Portsmouth South that was slightly contradicted by other hon. Members. That was that the Secretary of State should get to the table and deal with the trade unions. Of course, we have had some deals with the trade unions. According to the right hon. Member for Warley, the Government want the industrial action to continue, and the right hon. Member for Hayes and Harlington said that the Government ultimately control all train operations. If we are both controlling and making deals, that must mean that the Government have got round the table and had those discussions; I certainly know about the discussions that I have had. Or perhaps the right hon. Gentlemen pluck out arguments that suit them. When it comes down to it, we want industrial action to be settled. We welcome Transport Salaried Staffs’ Association and Unite the Union settling their industrial action, and it looks as though—we will find out on Thursday—the RMT has settled its action as well.
We do not want to use these regulations, because we would rather there were no strikes at all. The Opposition claim to be the party of the workers when it comes to the rail workers, but not the workers who use the trains. A train driver is paid £60,000 for a 35-hour, four-day working week—we have an offer on the table to increase that to £65,000—but people on those trains who earn a lot less are inconvenienced, and cannot get where they are going, because there is no proper minimum service. I have a constituent who writes to me to say, “I’m on a zero-hours contract; when train drivers go on strike, I don’t get the opportunity”—
Huw Merriman
The key is to ensure that those individuals have the right to go to work. It may be asked, “Why don’t you ban zero-hours contracts?”. I am pleased to hear that that is now Labour policy. We want to ensure that those who want to go to work, and who are not as well paid as train drivers, have the choice to do so. That is the balance, and the measures are proportionate.
Mark Eastwood (Dewsbury) (Con)
I should declare that, surprisingly, I am a member of a trade union—a moderate one, I have to say. I have heard a lot of noise from the Opposition about safety and workers’ rights, but not much about the passengers. Does the Minister agree that the only thing Labour cares about is the flow of money from their union paymasters?
Huw Merriman
My hon. Friend has said it, and obviously he has the experience to do so. It is a fair point that needs to be considered. Through the regulations, we are taking a proportionate approach that still allows those who wish to strike the right to do so. Equally, it allows those who wish to go about their lawful business—to go to work, go to school, get skills or go to their health appointment—the right to do so. Those people deserve that right. We should be on the side of people who really need train services.
Huw Merriman
I will not give way. I have been very generous with my time.
It has been suggested that the regulations will just cause rail workers to go off sick. Obviously, that is a contractual employment matter; no one is allowed just to go off sick under the terms of their contract. It will be down to employers to determine whether to use the work notices. They will then determine how the work notices operated, see how they worked, and decide whether individuals’ behaviour needs to be looked at, but I would not expect anyone in the rail industry, good people as they are, to go off sick unless they were sick. I am sure that everybody on the Committee would agree on that.
I will address the points made by the hon. and learned Member for Edinburgh South West. With regard to article 11, there has to be a proportionate approach. That will be a legal test, and we believe that the test is met. I believe that she also referred to the RPC impact assessment not being published. As requested, we provided further work to that body on 7 November. The RPC is now considering the input we made, and we wait to hear from it. A view was taken that information on matters relating to the umbrella Act would not need to be provided under the regulations, because that was for the umbrella Act. The RPC wanted more information, and we were happy to provide it. The impacts on small and medium-sized businesses, which will differ across the rail network, was another matter to be addressed. We take impact assessments seriously in the Department; we have a very good record of delivering them, and will continue to work to ensure that they are delivered.
The regulations make possible a considerable improvement in the service that can be delivered during rail strikes. They will support passengers who are making important journeys, including to work and to access vital services, and will limit strikes’ impacts on the economy. However, that is carefully and proportionately balanced with workers’ ability to take strike action. Although I am sure we all hope that strike action can be avoided, when they do take place, the regulations will provide a means of addressing the disproportionate impacts that strikes can have on the public, communities and businesses. I hope that the Committee will join me in supporting the regulations.
Stephen Morgan
I thank the Minister for his response. However, it is still not clear why the SI is being pushed through without proper scrutiny. As we have heard said tonight, what’s the rush? This is dreadful policymaking practice, with potentially serious consequences, and it seems that the Government have not thought through how the arrangements will be managed across the network and how many staff will be denied the right to strike. The fact remains that only the Secretary of State’s getting round the table will solve the ongoing rail dispute— something that he has refused to do throughout the year. For that reason, we will vote against the SI this evening.
Question put.