Draft Strikes (Minimum Service Levels: Border Security) Regulations 2023
(Limited Text - Ministerial Extracts only)
Read Full debateThe 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.
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.