Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels)

Wednesday 6th December 2023 Lords Chamber

Motion to Approve

16:10

Moved by

[Lord Johnson of Lainston]

That the draft Code of Practice laid before the House on 13 November be approved.

Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[The Minister of State, Department for Business and Trade (Lord Johnson of Lainston) (Con)]

My Lords, I beg to move that the draft Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels), as laid before the House on 13 November 2023, be approved. This code of practice, which I will refer to as the code for the remainder of this debate, provides important clarity on how trade unions can meet the legal requirement in the Trade Union and Labour Relations (Consolidation) Act 1992, as amended by the Strikes (Minimum Service Levels) Act 2023.

As noble Lords are aware, the 2023 Act enables regulations to be made specifying minimum service levels and the services they apply to. Where minimum service level regulations are in force, if a trade union gives the employer notice of a strike action, the employer can issue a work notice to the trade union ahead of the strike identifying the persons who are required to work and the work they are required to carry out to secure the minimum service level for that strike period. Trade unions should then 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 they are required by the work notice to work.

During the passage of the Strikes (Minimum Service Levels) Bill, the Government committed to bringing forward a statutory code of practice to provide more detail on the reasonable steps that trade unions should take. In accordance with the 1992 Act, the Secretary of State consulted with ACAS on the draft statutory code and, on 25 August, published a draft code, enabling trade unions, employers and other interested parties to contribute their views. Careful consideration was given to those views and, as a result, important changes were made to the draft code. An updated draft code was laid in Parliament on 13 November.

Alongside the code, we have supplemented the more detailed provisions of the Act on work notices by publishing non-statutory guidance for employers—that is important—setting out the steps for employers to take. These include engaging with trade unions and workers when developing the process, consulting with the trade unions on the numbers required to work and the work they must do, and having regard to their views before issuing the work notice and notifying the workers.

The code before the House today sets out four reasonable steps that trade unions should take to meet the legal requirement under Section 234E of the 1992 Act. Although the code itself does not impose legal obligations, it is admissible in evidence and taken into account where a court or tribunal considers it relevant.

First, trade unions should identify workers who are its members in a work notice. Secondly, trade unions should send an individual communication, 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 the work notice. Thirdly, trade unions should instruct picket supervisors to use reasonable endeavours to ensure that picketers avoid, so far as is reasonably practicable, trying to persuade members who are identified in the work notice not to cross the picket line at times when they are required by the work notice to work. Finally, once a work notice is received by the union, trade unions should ensure that they do not do other things that undermine the steps they take to meet the reasonable steps requirement.

It is worth noting that the code being debated today reflects much of the feedback that we received in the consultation on the earlier draft. For example, the updated code no longer includes a step requiring trade unions to communicate with their wider membership who are called to strike. The Government have changed the language so that it no longer requires those on the picket line to encourage individuals identified in a work notice to attend work. Instead, it now makes clear that those on the picket should simply refrain from encouraging those identified on a work notice to strike where they are aware that this is the case.

Having explained the background to the code, I will now turn to the fatal and regret amendments that have been laid on this code by the noble Lord, Lord Collins of Highbury, and the noble Baroness, Lady Bennett of Manor Castle. I will start with the fatal amendment, much of the content of which was more properly for debate during the passage of the Bill. I have no intention of re-running the debates on the Act which Parliament passed earlier this year, but I do want to remind noble Lords of why it was brought forward.

16:15

The Government firmly believe that the ability to strike is an important part of industrial relations in the UK, but this must be proportionate. Over the past year, there has been significant disruption, with massive impacts on the public. Since August 2022, 4.5 million days have been lost due to labour disputes. As a result, people have been unable to access key services that they rely on. For example, 1.1 million appointments have been rescheduled by acute NHS trusts due to strike action, and nearly one in five people reported having their travel plans disrupted by rail strikes. When you start adding on the impact of strikes in schools and other key areas it becomes clear why the Government had to take action.

It is, of course, this legislation and not the code, which is often discussed, that introduced the requirement for trade unions to take reasonable steps. During the passage of the Bill, noble Lords on the Benches opposite repeatedly criticised the fact that trade unions would not, without further guidance, know what this means in practice. Indeed, both the TUC and the Joint Committee on Human Rights asked for greater clarity on what the Government considered this to mean. This is exactly what this code provides. It should help not only to avoid expensive litigation by giving unions clarity on their obligation but to protect them from the very liabilities that the noble Baroness raises in her fatal amendment. Without the code, the duty on trade unions still exists, but there is much greater uncertainty for trade unions over what it means.

Additionally, I reiterate the points made by the Government during the passage of the Bill that we are confident that the Strikes (Minimum Service Levels) Act is compatible with our international obligations, including the European Convention on Human Rights, and that minimum service levels can be a proportionate means of achieving the balance between the ability of workers to strike and the rights of the public to access certain services. Minimum service levels do not remove the ability of strikes to take place. They simply seek to ensure that there is a balance between the ability to strike with the rights and freedoms of the public. This code, by providing much greater legal clarity for trade unions, further supports compliance with Article 11. As set out during the passage of the Bill, most major European countries, including France, Spain and Italy, have had a minimum service level regime in place for many years. Even the ILO recognises that they can be an appropriate mechanism to balance the rights of the public with unions and their members.

I call on all noble Lords to reject the regret amendment that has been tabled by the noble Lord, Lord Collins. We are confident that the draft code is within the scope of the 1992 Act as amended by the Strikes (Minimum Service Levels) Act 2023. Section 234E and amended Section 219 are clear that a union that fails to take reasonable steps to ensure that all members identified in the work notice comply with the notice will lose its protection from certain liabilities in tort. The Government therefore consider that a code of practice that sets out the reasonable steps a union should take is within the scope of the Act. Furthermore, Section 203 of the 1992 Act provides that the Secretary of State may issue a code of practice containing such practical guidance as he or she thinks fit for the purpose of promoting the improvement of industrial relations.

I want to respond to a point raised by the Secondary Legislation Scrutiny Committee regarding the time until implementation and to thank it for its considerations and its report on the code. The Government believe that there is sufficient time for employers and unions to get to grips with the practical implementation of the strikes Act. Trade unions and other stakeholders were consulted on the draft code in August and have been able to see the updated code since it was laid in Parliament on 13 November. They have therefore had sufficient notice of the contents of the code and sufficient time to prepare before it is expected to come into effect. Delaying commencement of the code would delay minimum service levels being implemented, meaning that strikes could continue to have disproportionate and harmful impacts on the lives and livelihoods of the general public for longer.

The code under consideration in the Chamber today has been designed to address the concerns raised in this House and the repeated requests for clarity by providing assurance for trade unions on the reasonable streps that they should take. If this code is approved by Parliament, 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. The Government’s intention is for the code to be in effect before regulations implementing minimum service levels come into force. To achieve this, the Government are planning for the code to come into effect very shortly after the commencement order relating to it is laid. I hope that your Lordships will support this code. I beg to move.

[Lord Collins of Highbury (Lab)]

My Lords, this House, by quite large majorities, gave the elected Chamber the opportunity to think again on this legislation—and, unusually, more than once. The reason, quite simply, is that no one really knows what this law will mean. Trade unions do not know what reasonable steps they will need to take to protect the right to strike. Even Ministers —and I am glad to see the noble Lord, Lord Callanan, in the Chamber—could not make up their mind on what it means. Kevin Hollinrake, the Minister, told the Commons on 22 May 2023:

“The reality is that nobody will be sacked as a result of the legislation”.—[Official Report, Commons, 22/5/23; col. 103.]


That is what he told the elected Chamber. However, the noble Lord, Lord Callanan, told this House that workers who receive a work notice will lose protection from dismissal. The code states that the compliance notice should contain a comment stating that the 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”.

The Minister talked of minimum service levels in Europe. Nobody is against minimum service levels; when it comes to life and limb, they are essential. But in every European country, they work and are applied because they are determined by voluntary agreement. People consent and co-operate; as soon as you remove that consent, you are in trouble. That is why so many employers are so against what the Government are proposing.

We remain very 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. Let me be very clear to the noble Baroness, Lady Bennett of Manor Castle; the only democratic way to get rid of this bad legislation is to campaign for a Labour Government. We have promised to repeal this legislation when we get into government, and we stand by that pledge. I am sure the noble Baroness will agree that the implementation of that pledge should not be frustrated by an unelected Chamber.

As the noble Lord, Lord Callanan, knows very well, it was only late in the day that the Government committed to a statutory code of practice. That was because this House scrutinised that legislation and pushed this Government into trying to make it clearer what the reasonable steps should be for a trade union. It was this House that resulted in that change, and I am glad the Government heard and responded.

Of course, as the noble Lord said, following consultation, the Government did make some changes to the draft code; they have removed the requirements to communicate with the wider membership, as he says, and the duty on a picket supervisor has changed from a positive one to attend work to a negative one of ensuring that picketers avoid trying to persuade members on a work notice not to work.

However, the code imposes significant new duties on trade unions well beyond the scope of the Act, rather than simply providing guidance about the law. It also places trade unions in the position of policing members on behalf of an employer, acting with the authority of the state. The code contains nine—I repeat, nine—separate pieces of information that unions should include in a compliance notice, with those named in the work notice clearly and conspicuously.

The fact is that the code fails miserably to explain the legal issues with necessary accuracy. It states that unions are advised to tell members that they should receive from the employer a statement that the member is an identified worker who must comply with the notice given to the union. But, as the noble Lord said, there is no obligation under the Act for an employer to communicate with the workers named in the work notice. They need do so only if they want to keep open the option of dismissing them for not attending work.

What we do know—I will be very brief on this point—is that the slightest transgression in an industrial action ballot can lead to some employers seeking injunctions, even though the practical effect of that transgression is nil, so there is a concern that any deviation from the template contained in the code will invite legal challenges from some employers. As the TUC said in its excellent briefing, that would almost certainly lead some employers to seek to legally challenge unions. I hope the Minister will respond to that. Does he agree with that point of view? Does he think that such satellite litigation will aid the resolution of industrial disputes? Can he really explain the rationale for including a pro forma template on top of the guidance contained in paragraph 26?

Unfortunately, and sadly, that is not the only way in which the code could instigate a legal challenge. There are plenty of areas in the code that appear to allow for challenges, and that is something that we really need to think about. It comes back to the Minister’s original point on Report, which was that it will be for the courts to decide what is a reasonable step. Everyone in this House thought, “That isn’t really appropriate. Is that going to lead to the settlement of disputes? Clearly not”.

One of the letters that the Secretary of State has had was from the Joint Committee on Human Rights. I hope the Minister will address its letter of 24 November today. It raised a number of issues on the code, stating that it

“does nothing to reduce the impact of minimum service levels imposed through Regulations on trade unions, requiring them to actively encourage their own members to break their own strike”.

I hope the Minister will address today the four specific questions posed to the Secretary of State on the impact on Article 11 workers’ rights of these regulations.

The fact is that, as my amendment states, the code and the associated regulations will exacerbate conflict in the workplace. The code contains so much uncertainty that we are sure to see more legal action, which I am confident will entrench and prolong disputes, thereby causing more harm to workers, employers and, just as importantly, the public.

Amendment to the Motion

Moved by

[Baroness Bennett of Manor Castle]

As an amendment to the motion in the name of Lord Johnson of Lainston, to leave out all the words after “that” and to insert “this House declines to approve the draft Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels) because it exposes trade unions to liability of up to £1 million, makes trade unions act as enforcement agents on behalf of employers and His Majesty’s Government, reduces the rights of workers to withdraw their labour, introduces legal uncertainty, and breaches international labour commitments.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the House is colloquially calling this a “fatal amendment”. I know there are many people watching this debate who may not regularly watch your Lordships’ House, so I will define it as saying, “This House declines to approve the draft code of practice”. That is what is happening here.

In speaking to my amendment, I am picking up the baton on this subject from my noble friend Lady Jones of Moulsecoomb, who worked on the legislation. She is currently enjoying an extremely well-earned short break. That is a right to decide not to come to work that Members of your Lordships’ House can exercise with total freedom but which these regulations, the code and the legislation behind them seek to deny to millions of workers.

16:30

My noble friend made powerful speeches on the irony of a Government who have eviscerated public services, handed them over to the untender mercies of hedge funds and investment managers, and suddenly decided that there should be a minimum service level when workers exercise their right to strike, which might turn out to be higher than the service level that you get on normal days. That is why I have put down this fatal amendment, and those that follow. I am told by expert lawyers that there is a high likelihood that the law, this code of practice and the subsequent regulations are incompatible with Article 11 of the European Convention on Human Rights, which concerns the right to freedom of association. I note also that your Lordships’ House sought extensively to amend what is now the Strikes (Minimum Service Levels) Act, which shows noble Lords’ concerns. This is another chance for your Lordships’ House to act.

I considered putting down only one fatal amendment, as a sample for the whole, but I felt that that would be inadequate for the range of concerns and fundamental issues before the House. It is important that your Lordships know some of the reaction to the code of practice and the subsequent regulations. The British Medical Association said:

“We strongly call on parliamentarians to oppose the code of practice and the MSIs”.

The Royal College of Nursing said:

“The imposition of the proposed code of practice, which underpins the process for the serving of work notices on nursing staff, would mark an alarming abuse of state power”.

Remember, I am quoting the Royal College of Nursing here. It went on:

“Parliament must reject the code of practice, which seeks to make trade unions responsible for breaking their own strikes. The vote on the adoption of the code of practice is a de facto vote on the freedom of working people to withdraw their labour”.

I am sure that many noble Lords have also seen the extensive briefing from the TUC. In addressing the points made by the Minister about why we should not throw this out because it has already been passed, the TUC said:

“Significant legal grey areas remain meaning that workers and employers will be uncertain where they stand”.

My understanding is that, if your Lordships’ House does not support my fatal amendment today, within days—at most, weeks—all this terribly unclear, complicated situation will be in practice. Can the Minister confirm that in his response?

There is widespread agreement that these regulations are in breach of international law and UK legal standards, and that they breach the Government’s own promise to the Commons. I will not go over the same ground as the noble Lord, Lord Collins, but, as he said, Minister Hollinrake promised that no one will face the sack as a result—although that is not what the code of practice says.

I have already had quite a few people question whether your Lordships’ House can follow a fatal amendment. Some 110 fatal amendments have been put forward since 1950; indeed, Labour’s Front Bench successfully defeated the Government using this process here in this House in 2012. In the Strathclyde Review in 2015—I can see some Members of your Lordships’ House who are vastly more expert on it than I am—the Parliamentary Secretary, John Penrose, described the Lords’ role in rejecting statutory instruments, saying:

“It also does not reject statutory instruments, save in exceptional circumstances”.

I suggest that noble Lords listen to the BMA, the RCN and the TUC, as well as the legal concerns expressed by our own Secondary Legislation Scrutiny Committee.

Furthermore, let us look to the report by the Joint Committee on Conventions, in which the Clerk of the Parliament says:

“There is no generally accepted convention restricting the powers of the Lords on secondary legislation”.

The report also noted that not blocking SIs has been described as more of a political agreement between Labour and the Conservatives than a constitutional convention, and has not been accepted by the Lib Dems or the Cross-Benchers. The committee set out examples of where it would be appropriate for the Lords to reject statutory instruments or a code such as this. There are situations in which it is consistent both with the Lords’ role in Parliament as a revising Chamber and with Parliament’s role in relation to delegated legislation for the Lords to threaten to defeat an SI; an example it gave is when the parent Bill is a skeleton Bill and the provisions of the SI are of the sort more normally found in primary legislation.

The Lords Delegated Powers Committee described the Bill—now this Act—as a skeleton Bill. I note that the Labour regret amendment says that it goes beyond the scope of the Act. The noble Lord, Lord Collins, suggested that your Lordships’ House should back his regret amendment, which—let us be clear—has no practical impact. It means that we will see this code of practice and the subsequent SIs come into effect on the basis that, in something like a year’s time, a Labour Government would reverse the legislation. A week is a long time in politics; who knows where we might be in a year’s time? Even more pressingly, what kind of damage might be done to the structures of our unions—the people who represent our workers—in that year? What will be left in a year’s time to restore?

From my four years in your Lordships’ House, I know how regret and fatal amendments usually go —I have seen it all too often—but, if we are not going to take a stand now, when will we? I will wait to see what others indicate and whether there will be enough of a body in your Lordships’ House to call a vote on my amendment. I have to act to act within the limits of the power available to me but I know—like the five Tolpuddle Martyrs sailing off for seven years of penal servitude under the obscure and disreputable Unlawful Oaths Act 1797—that the wheel of history turns eventually. One of the martyrs, George Loveless, wrote this as he was sentenced:

“We raise the watchword, liberty. We will, we will, we will be free!”

Many thousands of people continued bravely to work for the freedom of those martyrs and the rights that they espoused in their absence, eventually winning the men’s freedom. They then won the right to withdraw their labour, thought now to be definitively established. That people should have hope is crucial—it matters—which is one more reason why I put down these fatal amendments. We know that there is significant, strong opposition to these regulations, and a determination to stand firm. If others will not ensure that there is parliamentary expression of that, let me say for the record in Hansard that the Green Party will step up to the plate.

[Lord Fox (LD)]

My Lords—

[The Deputy Speaker (Lord Geddes) (Con)]

I was so fascinated by the noble Baroness’s speech.

[Lord Fox (LD)]

I apologise to the Deputy Speaker for stepping up too soon.

I thank the Minister for describing the first on the menu of the four statutory instruments we will be tasting today. I think that he was yet the ascend the rickety stairs of ministerial responsibility when the noble Lord, Lord Collins, the noble Baroness, Lady Jones—when she was among us—and I were debating the substantive nature of this Bill, so we welcome him to this tiny corner of legislation. It is a shame that the noble Lord, Lord Callanan, has now left as I thought he was overseeing the realisation of his creature; of course, it was the noble Lord, Lord Callanan, with whom we debated. Actually, the Minister did not miss a lot of the substance of the legislation because, as the noble Lord, Lord Collins, pointed out, there was not a great deal of substance in the enabling Bill. It is these statutory instruments that we will see today that begin to put the soft tissue on to the skeleton of that Bill.

There are four instruments, but we are looking in particular at the one aimed at tying the unions up in procedural knots. It is laying legal traps by which they can be caught out, with potentially existential sanctions. None of us enjoys the effects of public sector strikes—the Minister described those effects today. Swathes of society are inconvenienced and, in the case of the health service, it is much worse than an inconvenience. It behoves any Government to create the conditions for ending strikes as soon as possible, but this legislation does not create those conditions. As we heard from the noble Lord, Lord Collins, it creates heat and friction and makes settlement less likely. For the benefit of this Minister, I will repeat what I said while we were debating the Bill: disputes end only when the relevant parties sit down, talk and negotiate. It is for Governments to act to maximise the opportunity of those negotiations, rather than turn one party on the other.

I will concentrate on the operational faults of this statutory instrument, because therein lie the traps for unions. It really begs the question of how reasonable the code’s “reasonable steps” are? Unions must ensure that their members comply with the employer’s work notices. A work notice, as we have heard, is essentially a list of names associated to tasks for that particular service. Its purpose is to seek to deliver an agreed level of service—a handed-down level of service from government to the employer to the union. To comply, the union must first filter out the non-union members from that list and then take “reasonable steps” to ensure that its members do not honour that strike—a strike that the union itself has legitimately and legally called. To do this, the unions are likely to have extremely tight deadlines—deliberately unreasonable deadlines, I suggest.

Employers have only to provide a work notice seven days before a strike commences. That notice—the list—can be further amended, leaving only three days for the union to contact its members. That is not three working days, just three days, so it could include Saturday and Sunday. We have seen the pro forma; this communication must encourage them to pass through the union’s picket lines and go to work. I remind your Lordships, including those of us who were at the debate, that picket lines and picketing were never mentioned in the original discussion.

To go back to the procedural difficulties, some disputes are small and involve few union members. But the nature of the industries covered by the Act means that disputes are likely to be countrywide and involve tens of thousands of employees, maybe more, so I ask the Minister: is it a reasonable step to ask a union to track down and contact 20,000 people in three days, perhaps over a weekend? How does he expect that contact to be made? Will it be by email? He may be surprised to know that not everybody has email, and further surprised to find out that not everybody hands over their email address to their union. Will it be put on a postcard? I suggest that the postal service may not get it there in time.

There are serious impediments to the taking of these reasonable steps—or possibly unreasonable steps—but let us say that the union succeeds in crossing these hurdles and navigating its way through the minefield set out in this statutory instrument. Can the Minister confirm that the union is therefore indemnified from prosecution if some or all of its members still choose to ignore its advice and honour the strike? What is the legal position of the union? The point raised by the noble Lord, Lord Collins, about how we prove that the steps were reasonable still remains but, in negotiating those reasonable steps, can the Minister confirm that the union is then indemnified?

One would expect the TUC to be critical of this legislation, as it is, but what about ACAS, the Advisory, Conciliation and Arbitration Service, which is the expert at putting people around a table and trying to solve these problems? It too expressed reservations and asked why—I have relayed this to the Minister—if the reasonable steps for unions are set out in detail, similar steps are not set out for employers. Why are similar steps not also set out for the Secretary of State in his or her dealings on these issues? For example, what is to stop the employers overstating the number of persons reasonably necessary to provide the minimum service level mandated by the Secretary of State? Those are not my questions but ACAS’s. At the moment, as far as I can see, there is nothing to stop them. How would the union challenge that, given the time available and the current state of the code?

16:45

There are further practical impediments and deep flaws in this legislation, which we debated ad infinitum when the Bill was before your Lordships’ House. We sent it back to the other place with our comments several times, and I am afraid that we were unsuccessful in substantially changing it. It comes down to one central illiberalism. During the debate in the Commons, as we have heard, the Minister repeatedly denied from the Dispatch Box that any worker would get sacked for going on strike. Here, the noble Lord, Lord Callanan, was more nuanced and said that their protections would be removed. Can the Minister front up and explain which statement is true? Will no employees be sacked or, as the noble Lord, Lord Callanan, said, will they lose their protections and therefore be likely to be sacked?

If the noble Lord, Lord Collins, decides to move his regret amendment, we will take the TUC’s advice and support His Majesty’s loyal Opposition.

[Baroness Noakes (Con)]

My Lords, I completely understand that the Benches opposite did not much like this legislation when it went through your Lordships’ House, as we have heard today, but it is the law of the land and has been passed by both Houses of Parliament. It seems churlish to hold out against a document that is only trying to help unions comply with its provisions.

The noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord Collins of Highbury, have listed a number of reasons for the code of practice to be rejected or regretted, as the case may be. I suggest that these reasons do not stack up. I refer to the reasons as specified in their amendments, as opposed to the broader political speeches that we have heard.

The amendment from the noble Lord, Lord Collins, says that the code of practice

“imposes significant new duties on trade unions”.

It does not. Paragraph 7 says:

“This Code imposes no legal obligations”.


It is just guidance. It therefore does not go beyond the scope of the 2023 Act, as the noble Lord’s amendment alleges. Put simply, his amendment is inaccurate. It acknowledges that the intention of the guidance is to “provide … clarification to unions”, but then complains that there are “significant areas of uncertainty”. Guidance, by its nature, will never be exhaustive. He seems to be calling for absolutely certain rules and not guidance, but this is guidance. Much will depend at the end of the day on the circumstances, and the courts—not the Government—will determine whether a union has taken appropriate legal steps to stay within the law.

The noble Baroness, Lady Bennett, did not go through her list of complaints when she spoke to her amendment, but I believe it is similarly misplaced. Her amendment says that the guidance can lead to fines on trade unions or make them into “enforcement agents”. She also complains that the draft guidance reduces workers’ rights. The guidance simply cannot do these things—it is just guidance.

The complaints of the noble Baroness might be more accurately targeted at the minimum service levels legislation itself, as we discussed earlier. That is now the law of the land. It is not the time to redebate those issues, which took up so much of your Lordships’ time in the last Session.

Lastly, the noble Baroness’s amendment says that the guidance somehow “breaches international labour commitments”, which, again, as guidance, it cannot do. Our obligations under the ILO conventions do not prohibit us from setting minimum service levels and certainly do not prohibit us from issuing guidance. I hope—though without much hope at all—that neither of the noble Lords will be pressing their amendments, as they really do not make sense.

[Lord Cromwell (CB)]

My Lords, good grief, how did it come to this? I come at this at a slightly different angle as a businessperson, and I know that the Minister has much business experience. However, in business, a great deal of time and study goes into how to motivate people to work productively. I find it difficult—and I wonder if I could ask the Minister whether he shares my view—that passing a law that in effect forces people to work is hardly the way to go about things, and is, in fact, a sign of failure. It is certainly a sign of regret.

[Baroness O'Grady of Upper Holloway (Lab)]

My Lords, I rise to support the amendment standing in the name of my noble friend Lord Collins, and to join him in reminding the House that Labour will repeal this toxic legislation that would turn the clock back on mature industrial relations and workplace justice in this country.

First, I relay my thanks to the Minister, the noble Lord, Lord Offord, for taking the time to meet with me yesterday. Our discussion touched on the P&O Ferries scandal. I confirmed that, after those unlawful mass sackings, no one was prosecuted and there have been no government sanctions against either the firm or the owner. Compare and contrast that with the proposals that we have before us today. This House rightly raised the alarm about the risks of a skeleton Bill railroaded through without proper scrutiny or parliamentary accountability and without proper regard for our international obligations.

Sadly, this legislation was never about good policy-making; rather, it is about an unpopular Government trying to shift the blame for their own failings on to decent public servants and punishing trade unions which exist to defend them. Ministers say they are standing up for public service users, but those claims ring hollow. During the recent wave of strike action, polls showed public sympathy with the strikers and exasperation with Ministers’ high-handed, slow and chaotic approach to resolving these disputes. Now, the OBR is forecasting an unprecedented two-decade squeeze on real pay by 2028, and the Autumn Statement heralds another round of deep austerity cuts for many public services. That is why the Government are railroading through this bad legislation. They have no intention of addressing the causes of discontent; the objective is to crush it.

The code of practice is just the latest manifestation of contempt for the rights and freedoms of ordinary working people. The code sets out so-called “reasonable steps” that unions must take to comply. However, there is nothing reasonable about the code’s ridiculous requirements and deadlines for identification, state interference in what an independent union must communicate with its own members, new demands on picket supervisors when the strikes Act did not even mention picketing or imposing draconian sanctions on staff and unions. Rather, the code enables employers, no doubt under pressure from Ministers, to disregard democratic strike ballot, drag unions into court, attack union funds, strip away automatic protection against unfair dismissal and ban strikes by the back door.

On the day that the former Prime Minister, Boris Johnson, professes gratitude to healthcare workers and other public servants for protecting people through the pandemic, this is their reward. In drawing up this code, Ministers ignored the advice of Select Committees of this House, trade unions who opposed the strikes Act, employers who never wanted it, the RPC, which red-rated it, the UN’s labour arm—the ILO—and even the UK’s widely respected industrial relations body, ACAS.

I have two questions for the Minister. First, the Government fund ACAS with taxpayers’ hard-earned cash to promote good industrial relations and provide real-world expertise. However, ACAS’s long list of sensible proposals for substantive amendments to this code were rejected. Can the Minister tell us why? In what area of good industrial relations practice have this Government proved to be more expert than ACAS?

Secondly, the code spells out that an individual worker who disobeys a work notice will lose automatic protection against unfair dismissal and, if unions are deemed to have failed to have taken the so-called reasonable steps, all striking workers lose that automatic protection. However, the code says absolutely nothing about what positive rights NHS staff, rail staff and other dedicated key workers would then have in those circumstances. This is quite an oversight. If, as a result of the legislation, workers individually or en masse are sacked, precisely what would their rights be and why does the code fail to set this out?

[Lord Hendy (Lab)]

My Lords, I declare my interests as in the register and that I am a member of the Delegated Powers and Regulatory Reform Committee.

Of the many points that I would like to make, I will restrict myself to four. First, having spent 46 years of professional practice largely involved in the legal consequences of industrial relations disputes, I find it offensive that the Act and the code of practice compel trade unions to serve the interests of employers in undermining their right, guaranteed by all relevant international law and hence diminishing the only bargaining power our 34 million workforce have, to enhance the terms and conditions on which they sell their labour.

Secondly, in November 2021 the Delegated Powers and Regulatory Reform Committee published Democracy Denied? and the Secondary Legislation Scrutiny Committee published Government by Diktat. Your Lordships will recall the two principles underlying those reports. First, primary legislation should conform to the principles of parliamentary sovereignty, the rule of law and the accountability of the Executive to Parliament. Secondly, the threshold between primary and delegated legislation should be founded on the principle that the principal aspects of policy should be in the Bill and only detailed implementation should be left to secondary legislation. These principles were debated in this House on 6 January 2022 and 12 January 2023. The House clearly and strongly endorsed them. I understood that the then Leader of the House did not dissent from them. Yet this legislation failed both principles.

In its consideration of the Bill, the Delegated Powers Committee, in its 27th report, criticised the Bill’s granting of a Henry VIII power to the Secretary of State to set minimum service levels by regulations. We said:

“This is a Bill that deals with minimum service levels during strikes. Yet there is nothing in the Bill saying what those minimum service levels are. We shall only know when Ministers make regulations after the Bill is enacted. This is small comfort to Parliament, which is considering the matter right now”.

17:00

How right we were. Now, 10 months after the introduction of the Bill and four months after it became law, we find out, too late to debate or amend them, what the minimum service levels are to be. We now discover that the Act will remove many workers’ right to strike altogether. That means that three-quarters of the Border Force, 100% of ambulance drivers and call handlers, and signallers on priority routes are barred from striking between six in the morning and 10 at night. If the House had known those levels when we debated the Bill, amendments could have been debated, and some clauses might not have stood part. This irregular mode of legislating has cheated the House of those opportunities. I find that unacceptable.

My third point emphasises the second. The Act is being used as a device to amend the law on picketing, not by amending the statutory provisions that regulate picketing—Sections 220 and 220A of the 1992 Act—but by imposing on trade unions the duty to take “reasonable steps” to ensure that all members of a union who are identified in the work notice comply with the notice. This sidesteps the need for need for primary legislation; what the Delegated Powers Committee calls “disguised legislation” is deployed. The Code of Practice requires that picket supervisors must be instructed by the union

“to 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”.

In consequence, the law on picketing is changed. A failure, even a negligent failure, to so instruct even one picket supervisor—for example, at any one of the hundreds of picket lines in the recent RMT dispute—to use such “reasonable endeavours”, which is a phrase that is undefined in the Act, may expose the union to injunctions and damages claims in respect of the whole strike, and all strikers may lose automatic unfair dismissal protection. The omission of this picketing restriction from the Bill, to prevent parliamentary scrutiny and amendment, will be viewed by some as legislation by deception.

My fourth point is to draw the attention of the House to the fact that this Bill contravenes the rule of law. The right to strike is protected by Convention 87 of the International Labour Organization, ratified by the UK as long ago as 1948. The right to strike is not unlimited and, as has been said, the ILO has made it clear that minimum service levels are permissible in essential services, but subject only to certain conditions. I shall mention three.

First, the maintenance of minimum service levels in strikes is permissible only in services that are “essential”. Railways are not so considered by the ILO.

Secondly, the ILO requires dialogue between trade unions and employers to set the level of the minimum service. The Act, however, excludes dialogue between those parties in setting the level. The Minister alone does that.

Thirdly, once the level is set, the ILO requires the employer and the union to negotiate an agreement about how the service level will be fulfilled in the particular firm or service. In the event of a failure to agree, there must be an established independent adjudication process by the courts or agreed independent arbitrators. The Act fails in that respect as well.

Given that so many workers will lose the right to strike altogether, there is a fourth point to make. Where workers are barred legitimately from exercising the right to strike—for example, in the military—the ILO holds that, where collective bargaining fails to reach agreement, there must be access to speedy, binding, impartial and independent arbitration. The proposed non-binding conciliation that the Government have mentioned does not meet that threshold. As none of those conditions are met by the Act, there is a clear breach of ILO Convention 87. That is not the end of it, because Articles 387(2) and 399(5) of the trade and co-operation agreement require the UK not to weaken or reduce ILO fundamental standards below the levels in place at the end of the transition period.

I mention in passing that Article 6.4 of the European Social Charter, Article 8.1(d) of the International Covenant on Economic, Social and Cultural Rights, and Article 11 of the European Convention on Human Rights all protect the right to strike and are guided by the ILO jurisprudence on it, all of which were ratified by the UK.

For those reasons, among many others that my noble friends have and will articulate, I shall vote for the fatal amendment and, in case that fails, the regret amendment.

[Lord Sikka (Lab)]

My Lords, it is a pleasure to follow my noble friend Lord Hendy. I will ask the Minister to clarify a few things.

My noble friend already quoted some of paragraph 33 of the Code of Practice, which requires the picket supervisors or other trade union officials

“to use reasonable endeavours to ensure that picketers avoid … trying to persuade members who are identified on the work notice not to cross the picket line”.

However, the next paragraph states:

“Unions are not required to notify the picket supervisor of the names of union members identified in the work notice”.


So how exactly would they know who to stop? Will they have to wear strange hats, ties or jackets or some other way of identifying themselves? Those two paragraphs contradict each other.

That is not the only contradiction in the statutory instruments. Workers are being subjected to laws that do not apply to the withdrawal of capital, so the Government are not being even-handed at all. Companies can close facilities and sack workers without notice and without any vote by any stakeholder. Last year, P&O Ferries unlawfully sacked 800 people. The then Prime Minister openly said that that was unlawful. The chief executive of P&O Ferries came to a parliamentary committee and said that they knowingly broke the law, but no action whatever was taken. The Government are not even specifying the minimum levels of service for any government departments, monopoly service providers or companies. There are no minimum levels of service even for Ministers to answer Questions.

Why are the Government so anti-worker and one-sided? I am reminded of a great quote: “When tyranny becomes law, resistance becomes a duty”. I too shall vote for the fatal amendment and, if that fails, the regret amendment.

[Lord Thomas of Cwmgiedd (CB)]

Notices are often fraught with peril, so I want to know from the Minister what the employer is required to do when giving a notice. What is specified as to his means of communication? Is the means of communication employed by the employer to be communicated to the trade union, so that the trade union has some idea of what the employer thought was a means of bringing it to the attention of the employee? If this is to work, there must be a reasonable degree of co-operation.

[Lord Johnson of Lainston (Con)]

My Lords, I greatly thank all noble Lords who participated in this debate. I hope to clarify some key points, which are well labelled on the Government’s website and in the code.

I begin by thanking my noble friend Lady Noakes for her comments. This is a code, not a law. The whole point about this code is to enable unions to know how they can safely operate once they have taken reasonable steps to ensure that minimum service levels have been applied. The noble Lord, Lord Cromwell, mentioned that I came from a business background. He is correct and, from my point of view, this will provide welcome clarity to enable us to operate effectively. It does not impose anything or any type of activity: it simply makes recommendations. If you look at the concepts such as the template, that is the recommended template. It is not necessarily the template by which unions will have to operate. I would have thought that it would be very helpful for unions to have a template construction in that way to enable them to feel safe when they are communicating with their members.

I wish to raise something that I consider most valuable when debating this point and this code. Minimum service levels, as operated by the Act and structured by a useful guide such as this code, really—in my view and in the view of the Government—should be the last resort. The noble and learned Lord, Lord Thomas, made apparent the crucial point that it is through collaboration with employers, businesses and unions that we will have strong relations. The noble Lord, Lord Fox, also made that point. The timelines imposed by the Act and referred to in the code are quite short, but are designed to fit within the strike legislation, enabling a 14-day announcement of a strike, a seven-day turnaround for the work notices, and then further days to refine that.

The theory is that the employer and the unions will have done a great deal of work to prepare for the scenario so that effective work notices can be issued. It is not unreasonable for an employer and a union to be expected to collaborate very closely to ensure that this process can be as smooth as possible. At no point does this code, in any way, derogate the right to strike. It gives vital clarity on the relationship between the union and the employer. It actually goes further than that: it protects the rights of unions and the rights of the union members, so that they know where they stand.

A number of noble Lords raised points about reasonable steps, and they are just that. This has been quite well clarified by previous discussions in the sense that, so long as the union can prove that it has taken reasonable steps to ensure that the work notices are properly served and communication has taken place and that workers are not prevented from attending a work site, it can consider itself relatively safe when it comes to the process that may be placed on it in the courts by an employer. That is the whole point of the code: to make the unions feel safer and to ensure that an act around a strike can be properly orchestrated.

In conclusion, I ask for the support of this House. What we are discussing here is a code that will enable a great degree of welcome clarity and was called for by all sides on this debate. There have been a number of consultations to which the Government have responded, making changes to the code to bring to bear some of the very sensible points that were raised to ensure that it is reasonable, practical, fair and clear. It balances the unions’ and individuals’ rights to withhold their labour, while crucially providing minimum service levels so that the public can go about their business and the economy can sustain itself.

[Baroness Bennett of Manor Castle (GP)]

My Lords, we have had a very strong debate. I do not think the Minister answered my direct question about when, if your Lordships’ House allows this through, it will come into operation. Perhaps he could answer that now.

[Lord Johnson of Lainston (Con)]

I said at the beginning of my opening remarks that it will come into effect once it has been laid, so in the next three days.

[Baroness Bennett of Manor Castle (GP)]

I thank the Minister for that information: it is useful for the world to know that we will be facing this situation in three days’ time.

We have had a useful debate: this code of practice and all these statutory instruments that we are debating today have been very thoroughly critiqued. The noble Lord, Lord Hendy, made a powerful statement about the way in which the UK is, yet again, placing itself beyond the international pale in terms of norms and legal standards.

17:15

I thought the comment from the noble Lord, Lord Sikka, about employers being held to minimum legal standards was very powerful—the water companies come to mind. I thank the noble and learned Lord, Lord Thoms of Cwmgiedd, for helping to highlight the real, considerable uncertainties here. I also thank the noble Lord, Lord Cromwell, for making an important point about the practicality of this. The noble Baroness, Lady O’Grady, pointed out the concerns that the Advisory, Conciliation and Arbitration Service has about this code of practice. ACAS has indeed suggested that the code is likely to widen the scope for disagreement and dispute, introducing additional flashpoints. Maybe that was the Government’s point; the noble Lord, Lord Cromwell, was clearly concerned about it. I have to commend the noble Lord, Lord Fox, on his powerful evisceration. One phrase that stuck in mind was that the central illiberal element of this code of practice is that people can be sacked. Saying this is a “central illiberalism” rightly suggests that there are other illiberalisms in this code of practice.

However—and I feel that I need to explain this to the many people watching this outside your Lordships’ House who are not familiar with the practices of the House—for a vote to be called, it needs two Tellers and, half way through the vote, people in the Chamber to shout for the vote to continue. We have heard clearly indicated that the Labour Front Bench does not support the amendment that would throw out this code of practice. The Liberal Democrat Front Bench has not supported this. I do not have the indications that would allow me to put this amendment to a vote at this time. Your Lordships’ House might like to ponder what judgments will be made about the position that puts us in, as a representative House, but I find myself with no option but to beg leave to withdraw the amendment.

Baroness Bennett of Manor Castle’s amendment to the Motion withdrawn.

Amendment to the Motion

Moved by

[Lord Collins of Highbury]

As an amendment to the motion in the name of Lord Johnson of Lainston, at end to insert “but that this House regrets that the draft Code of Practice imposes significant new duties on trade unions, beyond the scope of the Strikes (Minimum Service Levels) Act 2023; could exacerbate conflict in the workplace; and despite its intention to provide additional clarification to unions, still contains significant areas of uncertainty.”

[Lord Collins of Highbury (Lab)]

That is the first time I have heard this House described as representative. I am not going to prolong the discussion. The noble Lord, Lord Cromwell, is absolutely right in that the essence of this is: what in practice is going to work? That is why most employers object to this code. It is a statutory code, unlike the one on the employer, which can be used against trade unions when a rogue employer might see that it is of benefit to take a legal case. Therefore, I beg to move my amendment and test the opinion of the House.

17:18

Division 1

Ayes: 196

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Labour: 112
Liberal Democrat: 58
Crossbench: 19
Non-affiliated: 4
Green Party: 1
Bishops: 1
Plaid Cymru: 1

Noes: 192

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Conservative: 179
Crossbench: 8
Non-affiliated: 2
Democratic Unionist Party: 1
Labour: 1
Ulster Unionist Party: 1

17:31

Motion, as amended, agreed.