Strikes (Minimum Service Levels: Border Security) Regulations 2023
(1 year ago)
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18:53 - Division on Lord Coaker’s amendment to the Motion - Ayes: 151 / Noes: 167 - Amendment disagreed.
Lord Sharpe of Epsom
That the draft Regulations laid before the House on 7 November be approved.
Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, maintaining services at our borders is essential to our security and prosperity as a nation. We depend on skilled professionals to ensure that, 24 hours a day, 365 days a year, our borders are strong and effective. 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 may seek to take advantage of strike action to enter our country or to move illicit commodities through our ports and airports. People smugglers may seek to exploit gaps in our patrol activity to land illegal migrants on our shores.
We are focused on making the hard but necessary long-term decisions to deliver the change the country needs to put the United Kingdom on the right path for the future. It is for this reason that the Government have decided to include border security within the scope of the Strikes (Minimum Service Levels) Act 2023. These new regulations have two purposes: to make provision for minimum service levels in relation to strikes as respect to relevant border security services and to define those relevant border security services.
The regulations set out that border security should be provided at a level that means they are no less effective than if a strike were not taking place. The regulations also set out that passport services as are necessary in the interests of national security are provided as they would be if the strike were not taking place on that day. The relevant border services that must be provided are now defined as
“the examination of persons arriving in or leaving the UK; the examination of goods imported to or exported from the UK; the examination of goods entered for exportation or brought to any place in the UK for exportation; the patrol of … ports … the sea and other waters within the seaward limits of the territorial sea adjacent to the UK; the collection and dissemination of intelligence for these purposes; the direction and control of”
those engaged in providing those services; and such passport services as may be necessary for national security reasons.
As the employer for Border Force and HM Passport Office, it will be the Home Office that issues work notices to trade unions during strike action. A work notice is, to recap, a notice given in writing that identifies the members of the workforce who are required to work on a strike day and the work they are required to do to deliver the levels of service as set out in the minimum service regulations. 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 a trade union or has taken part in trade union activities or used their services in the past. The trade union must then take reasonable steps to ensure that members of theirs who have been identified in a work notice do not take strike action. If the union fails to take reasonable steps, it may lose its legal protection from damages, claims and injunctions. I will return to that at the end of my speech.
The regulations stipulate that border security services can be provided only by employees of the Home Office, which will mean those who already provide border security services or the relevant passport services required in the interests of national security. This means that we will no longer need to rely on outside resource to provide cover. In the past, we have used other civil servants working elsewhere and members of the Armed Forces. We acknowledge and appreciate the efforts of those who have provided cover previously, but this cannot be a long-term solution.
We recognise that restricting the ability to strike, even in the way we are proposing, means that we need to ensure that compensatory measures are in place. The Government are therefore committing that they will agree to engage in conciliation for national disputes in relation to border security, where the relevant unions agree that this would be helpful. This is a significant and appropriate commitment that balances the ability of workers to strike with the safeguarding of our borders.
I note the amendment tabled by the noble Lord, Lord Coaker. I respectfully say that we have responded to the recommendations of the Delegated Powers and Regulatory Reform Committee. Its 27th Report of Session 2022-23, which was published on 2 March 2023, made two recommendations on what became the Strikes (Minimum Services Levels) Act. The first was that
“the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels … is likely to be exercised”.
The second was that
“the House may wish to press the Minister to provide an explanation of how the power to define ‘relevant services’ … is likely to be exercised”.
I respectfully submit that both recommendations have now been addressed through the regulations and in this debate.
I also respectfully disagree that the regulations are too prohibitive. This brings me to the Motion tabled by the noble Baroness, Lady Bennett, and to the findings of the Secondary Legislation Scrutiny Committee in its 3rd Report of the Session 2023-24, published on 23 November 2023. As I have set out, we are bringing forward these regulations to establish a fair balance between the ability to strike and enabling people to go about their daily life in the confidence that on a strike day our borders will still be secure.
Our recent experience of industrial action saw staffing levels of around 70% to 75% being delivered by Border Force. This enabled Border Force to carry out the essential functions listed in the regulations. Our estimate of the impact on HM Passport Office is that around a dozen or so personnel may be required to work. We none the less recognise that these new measures may mean that members of staff may not be able to strike. It is for that reason that we have made a commitment regarding conciliation, and I think this commitment is significant.
Turning to the question of trade unions’ liabilities, I would simply say that unions that continue to comply with trade union law are completely unaffected by this change, and therefore the issue of liability will not arise.
I call on Members of your Lordships’ House to reject the amendment tabled by the noble Lord, Lord Coaker, and the Motion tabled by the noble Baroness, Lady Bennett. I beg to move.
Lord Coaker (Lab)
My Lords, I thank the Minister for his introduction, although I disagree with much of it. We have heard in earlier debates from my noble friends Lady Merron and Lord Collins the general view that we have about these regulations. The law is not a substitute for proper negotiation. It is the failure of the Government to negotiate properly and reasonably with so many groups of workers that has led to this. Instead of addressing this failure of public policy, the Government have sought to undermine the right of people to take industrial action to protect their interests. Indeed, on the contrary, following the Act, regulations are put in place with huge consequences for unions and their members and workers if they fall foul of often ill-defined and ambiguous legislation. We will repeal them if we win the next election and will have no hesitation in doing so. The legislation that was outlined by the Minister to the Delegated Powers and Regulatory Reform Committee should properly have been in primary legislation, which is one of the points that the committee made and which the Minister did not answer or point out in his remarks.
I turn briefly to the regulations with respect to border security and the reasons we regret them. Can the Minister confirm that because the regulations involve employment law, they do not apply to Northern Ireland? It is important to understand what assessment the Government have made of a situation in which there was to be industrial action in Britain under these regulations but not in Northern Ireland, where, presumably, existing law applies.
Can the Minister also explain why the Explanatory Memorandum spoke—as the Minister did here—of the impacts on UK immigration, UK territorial waters and UK border security staff? He will know that the UK includes Northern Ireland but these regulations are about Britain and so do not include Northern Ireland. Can he explain why the Home Office cannot distinguish between the terminology of the UK and the terminology of Britain with respect to these regulations?
Can the Minister explain why the measures have been extended to cover HM Passport Office? This appears, whatever the Minister says, to be a last-minute addition to the legislation, going beyond the earlier indications and debates that were had with respect to the Act—hence the amendment that I have put. The impact assessment says that a small number of HM Passport Office staff—the Minister talked of 12—will be affected. Can he outline what roles that will be and whether the passport staff in Belfast, in Northern Ireland, will be affected? Presumably they will not, so what will happen? When was the decision made to extend the regulations to HM Passport Office? Why were the trade unions not consulted about that change?
The border security regulations allow an employer to serve a work notice that requires border services to be
“no less effective than they would be if the strike were not taking place on that day”.
—see Regulation 3(1). The very real question that results, as trade unions point out, is to what extent there is any reason for anyone to strike if it is not supposed to have any impact at all. How is that proportionate? That is why we regret these regulations before us.
The TUC points out how strict this short but powerful set of regulations with respect to border security is. The Government say that, to ensure the minimum service levels that they have outlined, this SI necessitates 70% to 75% of border staff working. How on earth is it proportionate to effectively deny three-quarters of the workforce the right to strike? How on earth is it reasonable or proportionate that, in many cases, only one in four workers in border security will have the right to strike? Hence, I tabled the regret amendment.
In many small ports, because of the minimum service levels, there will effectively be no right to strike at all. Can the Minister also explain, notwithstanding the points he has made about conciliation, what the conciliation process will involve? How will it actually work? Will there be frank and open discussions with the trade unions about it to ensure that a system is put in place that works?
The Government make considerable play of doing this in the interests of the public, but millions of trade union members are members of the public. Is the noble Lord sure that these regulations, interfering with the right to strike to such an extent, are consistent with our legal duties? Of course, we rightly praise our border staff and others for the important and crucial work that they do. However, in wage negotiations and conditions-of-service talks, they have been disappointed that this praise is not turned into acceptable offers when it comes to their pay and conditions. In those circumstances, and subject to a ballot, trade unions should have the right to strike. The proposed restrictions are not proportionate and can never replace fair and open negotiations based on mutual respect, even when that is difficult. It is for those reasons that I have tabled my amendment to the Motion.
Amendment to the Motion
Baroness Bennett of Manor Castle
As an amendment to the motion in the name of Lord Sharpe of Epsom, to leave out all the words after “that” and to insert “this House declines to approve the draft Strikes (Minimum Service Levels: Border Security) Regulations 2023 because they expose trade unions to liability of up to £1 million, make trade unions act as enforcement agents on behalf of employers and His Majesty's Government, and reduce the rights of workers to withdraw their labour, and will prohibit around 75 per cent of Border Force workers from taking part in strike action.”
Baroness Bennett of Manor Castle (GP)
My Lords, I rise to move my fatal amendment on the border security minimum service levels regulations. I will be very brief in doing so, in the interests of progressing the business of the House, particularly given the fine balance of our numbers. I am not going to repeat all my previous statements and arguments but, for the record, that does not mean that I am in any way withdrawing any of them.
I agree with virtually everything that the noble Lord, Lord Coaker, just said about these being, in some ways, the strictest of the regulations before us today. Some 70% to 75% of staff are losing the right to strike; in many smaller places, there is effectively no right to strike. We are taking that right away from people. However, that would really be a stronger argument for my fatal amendment. In that context, the regret amendment does not really achieve anything, as I have said before. I will, however, just reflect on one comment that the Minister made, repeating statements that the Government have often made before. If the Government are committed to conciliation for national disputes, this is a kind of rhetorical question, but it is worth asking. Can the Minister confirm how he can speak for future Governments, because these are the regulations we are laying now?
Lord Fox (LD)
My Lords, this is perhaps the most curious of the three statutory instruments aimed at particular sectors. I say that because it seems that the Government have chosen to pick a fight with one of the groups of public sector workers with which, to my knowledge, they do not currently have a full-blown dispute. Perhaps there is one coming; perhaps that is why Robert Jenrick has just resigned. He must know something that we do not. Given the choice of sectors, why did the Government choose to accelerate this one over other public services which are currently in trouble? It seems strange. Clearly, as other speakers have said, it is not a very long measure, and noble Lords will be happy to know that my speech will be shorter.
At the heart of this, as we heard from the noble Lord, Lord Coaker, the intent of the measure is that the strike-day service from Border Force should be no less effective than on a non-strike day, and services should cover all the areas normally running—port and airport services, passport services and so on—as the Minister has set out. I do not need to explain that when the minimum service level is no less effective than the everyday service level, that basically means almost everybody is required to go to work. In this case, the estimate from the TUC is that 70% to 75% of the employees of Border Force on a normal day will be required to attend on a strike day.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, further to the remarks made by the noble Lord, Lord Coaker, I understand that the Strikes (Minimum Service Levels) Act 2023 applies to England, Scotland and Wales. However, it is interesting that, while labour relations are devolved, Border Force, HM Passport Office and so on are not; they are reserved.
In light of this legislation, if it is important to the Government, how does the Minister intend to provide similar measures in Northern Ireland? How does he maintain the integrity of the single reserved agencies? How does he ensure similar terms and conditions for staff across the United Kingdom, given the restricted extent of these regulations? As he said, this is important legislation. I will be interested to hear how he can say that, on the one hand, it is a devolved matter but, on the other, Border Force, His Majesty’s Passport Office and so on are not because they are reserved matters. How does the Minister deal with that?
Lord Sharpe of Epsom (Con)
My Lords, I am grateful for all the contributions and will address the points that have been made. The noble Lord, Lord Coaker, has tabled a Motion to regret this statutory instrument because
“the draft Regulations contain policy detail that was not included in primary legislation contrary to the recommendation of the Delegated Powers and Regulatory Reform Committee; and … given that the impact assessment acknowledges that some workers’ right to take industrial action will be affected or denied… they are too prohibitive”.
I do not agree. The 27th Report of Session 2022-23 of the Delegated Powers and Regulatory Reform Committee, published on 2 March 2023, made two recommendations regarding what became the Strikes (Minimum Service Levels) Act. The first was that
“the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels … is likely to be exercised”,
and the second, as I have already said, is that
“the House may wish to press the Minister to provide an explanation of how the power to define ‘relevant services’ … is likely to be exercised”.
I respectfully submit that both those recommendations have now been addressed through the regulations themselves and in this debate.
I also respectfully disagree that the regulations are too prohibitive. The Government committed to introducing statutory minimum service levels on strike days in a range of sectors, including border security. That was to establish a fair balance between the ability to strike and enabling people to go about their daily lives. The ability for staff to take strike action is an integral part of industrial relations. However, the security of our borders is something that we cannot compromise on; that is why this measure is proportionate. We must also consider the disruption caused to, and the costs incurred by, passengers and businesses that expect the essential services they pay for to be there when needed.
The noble Lord, Lord Coaker, asked me about the consultation. We are grateful to all those who responded to it. As noted in our formal response, we received 69 online questionnaires and a further nine written responses, but we consider that those who responded have a reasonable expectation of confidentiality, which is why we have not identified them.
In the consultation we ran in the summer, we made it clear that we were considering applying these regulations to Border Force and other organisations. We invited respondents to identify any organisations they thought should be in scope. Following the consultation, we considered it important to include critical passport services in the regulations. Passport services required for the purposes of national security could include, for example, identifying stolen passports and forged documents. In practice, as I said in opening, we think that we would require around a dozen employees from the Passport Office to work on a strike day, if necessary.
Our commitment on conciliation is clear. To partially answer both noble Lords’ questions on Northern Ireland, there are issues in the background with Northern Ireland that we are working through. I will return to those subjects in writing.
The public rightly expect us to maintain a secure border—as I said, that is why this is proportionate— in balance with the ability of workers to strike. The Government believe that these new border security minimum service levels will do that. I hope noble Lords will join me in supporting these regulations, which I commend to the House.
Baroness Bennett of Manor Castle (GP)
My Lords, I note that the Minister did not address my admittedly unanswerable question about the next Government. The news from the noble Lord, Lord Fox, might make us wonder when the next Government, or at least the next Prime Minister, might arrive. In light of the hour, I beg leave to withdraw my amendment.
Lord Coaker
As an amendment to the motion in the name of Lord Sharpe of Epsom, at end to insert “but that this House regrets that the draft Regulations contain policy detail that was not included in primary legislation, contrary to the recommendation of the Delegated Powers and Regulatory Reform Committee; and considers, given that the impact assessment acknowledges that some workers’ right to take industrial action will be affected or denied, that they are too prohibitive.”
Lord Coaker (Lab)
My Lords, the noble Lord, Lord Sharpe, says that it is not prohibitive to stop three-quarters of a workforce from taking strike action. I leave that on the table for others to judge and come to their own conclusions about, but I think it is too prohibitive and disproportionate.
The noble Lord, Lord McCrea, raised a serious point, and it is good that the noble Lord, Lord Caine, is here. The Explanatory Memorandum to these regulations talks about the United Kingdom all the way through, yet the Act talks about the regulations applying only to England, Scotland and Wales—Britain, not the UK. Even the Minister talked about UK territorial waters and UK immigration. As the noble Lord, Lord McCrea, others in Northern Ireland and the noble Lord, Lord Caine, will tell him, you get steeped in this—you cannot talk about Britain in legislation and then include Northern Ireland. That is not acceptable.
In partially responding to this, the Minister said that he would write a letter. This is a really serious point, as it means that we cannot have answers about the Passport Office in Belfast. He made all sorts of points about immigration, trafficking, drugs, et cetera; there may be very good reasons why this does not apply to Northern Ireland, but you cannot have an Explanatory Memorandum that talks about the UK and then say that it is applicable only to England, Scotland and Wales. That is a really big failing on the Government’s part. It should not happen and must not happen again. I beg leave to test the opinion of the House on my regret amendment.