Strikes (Minimum Service Levels: Fire and Rescue Services) (England) Regulations 2024

Tuesday 19th March 2024 Grand Committee

Considered in Grand Committee

15:45

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Strikes (Minimum Service Levels: Fire and Rescue Services) (England) Regulations 2024.

Relevant document: 15th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, these regulations were laid before Parliament on 8 February, following publication of the department’s response to its consultation on implementing minimum service levels for fire and rescue services. Before we get into the detail, I would like to take a moment to pay tribute to all those who work in fire and rescue services: for all that they do, I am extremely grateful.

The services provided by fire and rescue authorities are critical to the safety of the public and the protection of property and the environment. It is therefore crucial that the public remain able to access fire and rescue services when they need them. The overarching aim of these regulations is to help ensure that this happens on strike days. Using powers introduced by the Strikes (Minimum Service Levels) Act 2023, the regulations will allow fire and rescue authorities to issue work notices to ensure that there is sufficient cover to answer all emergency calls and respond to fire-related emergencies as if strike action was not taking place.

The minimum service level for fire and rescue services includes three core aspects. These are control rooms, emergency incident response and fire safety services. Broadly speaking, the responses to the Government’s consultation, including those from the majority of fire and rescue services, were in favour of a nationally set minimum service level, but with a degree of local flexibility. This is reflected in the provisions set out in the regulations.

For control rooms, the minimum service level makes sure that emergency calls are answered and assessed, and resources dispatched to emergency incidents, as if it were a non-strike day. Decisions on the number of staff required to fulfil these functions will be for individual fire and rescue authorities to take.

For firefighters, we have set the minimum service level at 73% of the appliances—by which I mean fire engines and other fire and rescue service vehicles—that would be available if strike action were not taking place at that time. Individual fire and rescue authorities will be able to determine the number of staff required to safely crew and oversee these appliances.

The decision to set this aspect of the minimum service level at 73% is based on detailed modelling, summarised in our consultation response. The modelling calculates the proportion of days over the past five years on which demand exceeded the number of appliances required to meet a minimum service level set at different thresholds. The model identified 73% as the threshold at which every fire and rescue service would have enough appliances available to meet emergency demand on more than 97% of days. In the interests of public safety, we therefore consider 73% the most appropriate point at which to set this aspect of the minimum service level.

Many fire and rescue services also host national resilience assets, which would form an important part of any response to major and significant incidents, such as a major building collapse or a wildfire. It is of the utmost importance that fire and rescue services can maintain these capabilities and keep the public safe. This is why the minimum service level for national resilience assets is set so that they are capable of being deployed as if the strike were not taking place. Like other provisions in the regulations, fire and rescue authorities will consult trade unions and determine the number of staff required to meet this minimum service level.

The third key element of the minimum service level is to provide cover for urgent fire safety issues. Under the regulations, fire and rescue services will be expected to have staff available to rectify any emerging issues that pose an imminent risk to life and so would normally require a same-day response. This could include any significant fire safety issues uncovered at residential or public premises. Individual fire and rescue authorities will be able to determine how much cover will be required for these activities, although we anticipate that the number of urgent fire safety issues emerging on a strike day is likely to be relatively small.

The minimum service level set out in these regulations is designed to balance the ability of workers to take strike action and the need of the public to access essential services. In summary, this is a proportionate step to ensure that public safety is protected on strike days. I beg to move.

[Lord Hendy (Lab)]

My Lords, in the debate on the strikes/minimum service legislation and the regulations made under it, the rationale for the right to strike sometimes gets overlooked. I will cite for your Lordships three very short passages, not from Marx and Engels or Sidney and Beatrice Webb but from the highest courts in the United Kingdom and Canada.

First, I cite a case of the Judicial Committee of the House of Lords from 1942, Crofter Hand Woven Harris Tweed v Veitch, in which Lord Wright said:

“Where the rights of labour are concerned the rights of the employer are conditioned by the rights of men to give or withhold their services. The right of workmen to strike is an essential element in the principle of collective bargaining”.


The second authority that I want to put before your Lordships is a case in the Supreme Court of Canada from 2015, Saskatchewan Federation of Labour v Saskatchewan. In it, the Chief Justice cited an earlier case in the Ontario High Court, with approval, in which it was said that

“freedom of association contains a sanction that can convince an employer to recognize the workers’ representatives and bargain effectively with them. That sanction is the freedom to strike. By the exercise of that freedom the workers, through their union, have the power to convince an employer to recognize the union and to bargain with it … If that sanction is removed the freedom is valueless because there is no effective means to force an employer to recognize the workers’ representatives and bargain with them. When that happens the raison d’être for workers to organize themselves into a union is gone. Thus I think that the removal of the freedom to strike renders the freedom to organize a hollow thing”.

Finally, in a later passage, the Chief Justice said:

“The right to strike is essential to realizing these values and objectives through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse. Through a strike, workers come together to participate directly in the process of determining their wages, working conditions and the rules that will govern their working lives … The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives”.


As your Lordships well know, collective bargaining operates successfully in the fire service, including in relation to incidents that may occur when strikes are called. Those issues are negotiated, as are terms and conditions and—most recently, of course—pay, but the effect of these regulations will be to remove the right to strike for a large proportion of the staff of the fire and rescue service. For example, as the Minister pointed out, 73% of appliances and crew must be available, as on a non-strike day. In my local fire station, there are three appliances, so the application of the 73% rule means that all three must be present, available and fully crewed on any strike day.

In addition to that, 100% of control room staff must be available, as must 100% of the staff whose job it is to work national resilience assets such as high-volume pumps and, I think, aerial ladder platforms. The effect of these regulations will be to diminish the bargaining power of the fire and rescue service’s workers and union, which will result in worsening terms and conditions and will lead to difficulty in retention and recruitment.

The United Kingdom has ratified ILO Conventions 87 and 98, which protect the right to organise and to bargain collectively. They are two of the five fundamental conventions of the ILO, the importance of which the UK recently reasserted in the trade and co-operation agreement it reached with the European Union when leaving. Under Article 387(2) of that agreement, the obligation on the EU and the UK is as follows:

“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards”.


The words

“labour and social levels of protection”

are defined in Article 386 as including the fundamental ILO conventions. Under Article 399(2),

“each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions”,

which it then summarises.

It is clear that these regulations will lead the United Kingdom to be in breach of its international legal obligations. It is true that the ILO jurisprudence permits a state to adopt minimum service legislation, but that is on one condition, which has a number of aspects. First, the minimum service level must be the subject of negotiation between the social partners; secondly, the fulfilment of that minimum level of service in any particular firm or enterprise must be the subject of negotiations between the unions and the particular employer; and thirdly, in the event of disagreement, there must be an established method of resort to either judicial or arbitral resolution of the failure to agree. That applies in all the countries in western Europe.

There is a fourth element to it. Where workers are deprived of the right to strike, such as, in our case, control-room staff, compensatory measures must be adopted by the state which bars the right to strike. The compensatory measures are that the ability to seek arbitration must be speedy, binding, independent and impartial. None of those conditions is available under these regulations or indeed under the Act itself, so I ask the Minister, how can the UK be said to uphold the rule of law in the face of what is a clear breach? How will the Government explain this discrepancy to the European Union?

[Baroness Twycross (Lab)]

My Lords, I declare an interest as London’s deputy mayor for fire and resilience. However, I am speaking in my capacity as a Member of your Lordships’ House.

I have had the privilege and pleasure of over a decade’s involvement in the fire service. Until last summer, this has included being involved with the collective bargaining referred to by my noble friend Lord Hendy, as a member of the national pay negotiating body for fire, the National Joint Council—NJC—which is made up of employers and employees, including the FBU. The NJC is a negotiating body that successfully negotiated a two-year agreement on pay last year, in stark contrast to the Government’s many failures in negotiations in other parts of the public sector. The Government’s failure to negotiate successfully is not a good enough reason to introduce unreasonably restrictive legislation. On these Benches, we are committed to repealing these measures.

16:00

Over the past few years, we have had a number of Home Secretaries and Fire Ministers. We have had consultation on fire reform and assurance after assurance from Ministers that there was no intention to ban firefighters taking strike action. However, it is patently clear that this is fundamentally what this Government intend to do through this action.

The recent correspondence to employers from the Home Office, in effect, sets the bar at 73%—so high that it renders strike action virtually impossible. The Minister quoted the Home Office view that provision on strike days should be as if it were not a strike day. This is an Alice in Wonderland use of language as it is, in effect, a ban on strikes. In some cases, it probably sets the level of service higher than some fire and rescue services, particularly those reliant on retained or on-call firefighters, have on a normal working day.

Can the Minister say how the Government arrived at the figures sent out to fire and rescue services? What soundings were taken from the National Fire Chiefs Council and from the main fire union—the FBU—other fire unions and employers’ representatives, through the Local Government Association or the NJC? Have the Government tested the level set against service levels on any other day of the year? How is the Home Office going to manage a situation in which on-call firefighters have no legal requirement to work, but the minimum service level legislation suggests that they might have to in a strike situation? Given that there is already a crisis in recruiting and retaining on-call firefighters, what impact assessment has the Home Office undertaken to ensure that this does not exacerbate it?

The Government clearly believe that the solution to their failure to negotiate, and their apparent deep hatred and misunderstanding of the trade union movement, is restrictive, regressive legislation. In the case of fire, there has not been a national strike over pay for more than 20 years and the pension strike, in the last decade, was triggered by the Government’s own heavy-handedness.

During the pension dispute, I had the opportunity to speak to firefighters on the picket line. No firefighter or trade union official I spoke to at that time took the decision to strike lightly. No firefighter actually wants to go on strike; no union wants its members to lose pay. Firefighters do their job because of their sense of public duty. Part of the contingency arrangements in London, as in other parts of the country, is a recall agreement in the event of major incidents of the type that the Minister described. The picket lines outside fire stations, and an understanding that firefighters will leave picket lines in extreme circumstances, are central to this. This is similar to the derogation arrangements for the ambulance services last winter, which, in London, included having union officials in the London Ambulance Service control centre to ensure transparency and ease of discussion over decision-making in relation to major incidents.

These arrangements are born of good industrial relations and of respect. The Government’s lack of understanding of the value of good industrial relations has led them to introduce the anti-strike legislation we are discussing today. This is Victorian legislation from another era, out of touch with public opinion. It would damage rather than enhance public safety, by setting employers against employees. I am not naive enough to believe that the Minister will do anything other than defend the Government’s position, but I ask that he answers the questions put during this debate.

[Lord Goddard of Stockport (LD)]

My Lords, I speak on this minimum service level agreement from a unique position: I spent 25 years working for British Gas and was a GMB union negotiator for 35,000 gas workers. Roll on to when I was in local government; I was on the Greater Manchester Fire and Rescue Service for 15 years and on the NJC that dealt with the FBU on national pay negotiations. In both those exercises, as poacher and gamekeeper, even in the bitterest disputes, one thing was certain: public safety was the primary concern of the gas industry and the Fire Brigades Union.

Introducing minimum strike levels is a sign of desperation from the Government. I have seen minimum strike levels—I think they are in the railways now, are they not? The difference between railwaymen and fire- fighters is that firefighters, as has been said, are vocational; they do this from the heart, as well as doing it as a job. I have been at Euston station, where there are supposed to be minimum service levels for trains and train drivers, and seen hundreds of people trying to get home to Cardiff, Manchester and Glasgow while there are picket lines outside. With the FBU, whenever there is a fire, the fire brigade turns out and puts it out whether it be Grenfell, the Woolworth fire or Kings Cross.

As a party, the Liberal Democrats take the view that fire safety is extremely serious. We continually emphasise the ongoing importance of the victims of disasters and want to ensure the safety of the public against the risk of fire. However, the main threat to the fire and rescue service comes not from this agreement but from central government’s cuts to the fire service. It is being expected to do more and more with less and less. Having had 20% cuts in real terms since 2013 means that all fire authorities are struggling to meet their budgets. If you talk to people from Greater Manchester, Merseyside, South Tyneside, Yorkshire and the West Midlands, along with London, Cleveland and Humberside, they will all say that they will receive slightly more this year but that inflation has removed all the benefits. So fire brigades are trying to do more with less, and the Government want more from that.

The Minister—he is the messenger in this place so this is nothing personal—would do well to go back to the other place and say to the Minister there, “Instead of looking at minimum strike levels, why don’t you look at rethinking some of your recent decisions like changing the legislation that says that all new schools will have sprinkler systems installed, which you have now reversed?” Think of the damage that could do when schools begin to burn down, whether people are on strike or not. What about revisiting the issue around tower blocks and the need for second staircases to ensure that people who live in those properties can get in and out safely?

Why do the Government not reconsider those sorts of legislative things, which will really save lives? No, they take the big sledgehammer to crack a small nut. That is all the Government are trying to do here. I know Matt Wrack and the unions. I have found that they always say, “At the end of the day, if we’re needed, we will turn out”. Sometimes, the Government have to step up, acknowledge that, stop messing about with these minimum levels and go to the heart of the problem with a number of industries in this country: the funding for and protection of firefighters.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing this statutory instrument and join him in paying tribute to all those who work in this area.

As the Minister said, on 8 February this year, the Government published their minimum service levels for fire and rescue services in England. These new laws will restrict the ability of firefighters and emergency control staff to take lawful strike action. We believe that the new laws are unnecessary. The FBU has always negotiated a major incidents agreement with fire employers before national strikes. Last year, collective bargaining between the FBU and fire employers meant that there were no fire strikes. An acceptable pay agreement was reached and endorsed by the firefighters.

The minimum service level regulations state that fire and rescue control rooms must function during industrial action as if it were a non-strike day. All calls have to be answered, assessed and a response mobilised. Requiring the same standards as a non-strike day is in effect a ban on control staff taking industrial action, despite repeated assurances that it is not a strike ban.

The regulations for minimum service levels of firefighting functions dictate that 73% of appliances usually deployable on a non-strike day must be deployable on days when industrial action is taking place. My noble friend Lord Hendy gave the example of his local fire station, which has three appliances, so it is in effect a strike ban on that station. How many firefighters will be forced to work if a work notice is issued? What is to stop chief fire officers abusing the work notice and forcing all firefighters to work? Ministers have failed to explain how work notices will affect retained firefighters since retained firefighters cannot be compelled to work on strike days; I would be grateful if the Minister could comment on that.

The minimum service level regulations state that national resilience assets, such as high-volume pumps, must be capable of being deployed as if the strike were not taking place that day. This is in effect a strike ban for firefighters deployed on national resilience assets. I would be grateful if the Minister could comment on that.

Ministers claim that these laws are needed because the Army no longer provides cover. The last time the Army was deployed during fire strikes was in 2003. After the coalition Government attacked firefighters’ pensions between 2010 and 2015, the FBU organised 50 separate firefighter strikes in England. The FBU has always signed a major incident agreement with fire employers before national strikes, with provisions to recall firefighters in the event of a major emergency.

Government guidance makes it clear that the liability for work notices lies with fire authorities. Fire employers in England are rightly unhappy with these regulations. Many will not impose work notices because of the impact on industrial relations. Fire Ministers in Scotland and Northern Ireland have refused to implement these laws. It is unclear how these regulations can or will be applied in operation. It is a risk, both legal and reputational, on fire service employers who choose to issue work notices.

The guidance is clear that it is not statutory and that, ultimately, the courts will interpret the law. This places a risk on employers that is compounded by the additional difficulties that are unique to the fire and rescue service. Failure to comply with these unworkable measures exposes individual firefighters to the risk of the sack, while the FBU could also face financial penalties.

The regulations before us today are an example of the Government’s failed approach to industrial relations. No one wishes to see the public disrupted by industrial action. We all wish to see minimum standards of service in our public services but these regulations will not achieve what the Government want them to. They will poison relations when what is needed is a constructive working agreement between management and unions. The Labour Party opposes attacks on working people’s freedoms. That is why we would repeal the 2023 Act and why we oppose the regulations before us today.

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful for all the contributions to this relatively short debate. As I outlined in my opening remarks, the Government believe that these regulations are vital to ensure that there is sufficient cover to respond to fire and rescue-related emergencies on strike days. They will help protect the public and provide people who call 999 with reassurance that firefighters will be able to respond quickly to reduce the risk to life and property. Fires can spread quickly and present a serious threat to life and limb; it is vital that such services are available to the public during strike action. Demand for fire and rescue services fluctuates depending on the season, weather patterns and the time of day. As we saw in the tragic fire at Grenfell, without warning, fire can quickly spread, develop into a major incident and cause an unspeakable tragedy that will devastate a community.

I want to be clear that fire and rescue services perform a critical role in our society. It is only right that they respond to incidents that could pose an immediate risk to the public. I say to all noble Lords that we of course recognise the importance of the ability to strike, which is protected by law. We are striving to maintain a balance between the ability of workers to strike and the rights of the public to access the emergency services when they need them.

The noble Lords, Lord Hendy and Lord Ponsonby, and the noble Baroness, Lady Twycross, emphasised that we are challenging the right to strike. I stress again that we are not banning the ability to strike. These regulations focus on maintaining fire and rescue services’ capacity to respond to emergency incidents that posed an immediate risk to the public. Fire and rescue services will be able temporarily to suspend more routine duties that they would normally carry out if such action were not taking place.

16:15

The regulations require 73% of normal appliance cover to be provided; I will come back to the figure of 73% in a moment. It means that the staff not required to crew that proportion of appliances would be able to participate in strike action. We also anticipate that, in a number of services, the number of staff required to cover functions such as control rooms, national resilience and urgent fire safety issues is likely to be relatively small. It will be for individual employers to decide how many staff will be required to work in order to meet the minimum service level.

However, the primary legislation is clear that they must not include more workers than reasonably necessary to meet this level, and that they must consult with the striking union about the number of workers specified and the work that they will be required to do. We cannot make apologies for setting the minimum service level for fire and rescue services at this threshold because, as I have said a number of times now, when a fire breaks out, it is important that the fire and rescue services attend the vast majority of incidents quickly as the risk of fire spreading and the risk to life cannot be assessed unless their skills are present.

In answer to the noble Lord, Lord Hendy, this does not diminish the pay bargaining process because minimum service levels have nothing to do with negotiations over pay and conditions. This is simply about public safety and ensuring that, when incidents occur on strike days, the public can be reassured that professional firefighters will be available to attend. There is a collective pay bargaining process led by the National Joint Council, which the Government do not participate in. The Government are not the employer and have no official role to play in pay negotiations. The Government are committed to ensuring that fire services have the resources that they need to keep the public safe.

It is important to talk about the role of the fire and rescue authority because it is down to local fire authorities to ensure that they can carry out their functions during a strike. In the past, the options for doing this have been limited—some have considered military support while others have recruited retired firefighters—but, now, authorities have the additional option of issuing work notices to staff who are planning to strike. At the heart of the primary legislation is the premise that the employer can choose not to issue work notices if they decide that services can be provided without doing so. We will be asking all fire and rescue authorities, along with their chief fire officers, to consider their business continuity plans for the future and encouraging them, in the strongest terms, to ensure that these plans give them the confidence to provide life-saving services.

What we are doing is not without precedent. Minimum service levels exist in a range of countries globally as a legitimate mechanism to balance the ability to strike with the needs of the public. The International Labour Organization, to which the noble Lord, Lord Hendy, referred, recognises that this is justifiable for services where their interruption would endanger citizens’ lives, personal safety or health. We do not accept that these or other MSL regulations breach our international obligations. Disruption to fire and rescue services puts lives at immediate risk. We are not an international outlier; there is some international precedent for restricting firefighters’ ability to strike. For example, strike action by firefighters has been subject to restrictions in countries including Germany, France, Belgium, Switzerland, Iceland and Portugal. Firefighters in the United States, Estonia, Latvia and Slovakia are currently or have previously been prohibited from taking strike action.

Obviously, fire and rescue staff who work on strike days will be paid as normal. More broadly, any restriction on the ability of fire staff to strike is adequately counterbalanced by provisions in the existing national collective bargaining negotiating mechanisms for fire and rescue services. These mechanisms provide for mandatory and binding arbitration, which would usually follow conciliation, where either the employers or employees request it.

The regulations apply to firefighters so, as the noble Baroness, Lady Twycross, noted, they can respond to emergency incidents as if it were a non-strike day. This level has been set following extensive deliberations and is intended to ensure that we can be as confident as possible in achieving our core aim: to deliver an improved life safety position by putting fire employers in a better position during strike action. It will apply to any fire and rescue services if its fire and rescue authority decides to issue work notices.

We held a public consultation, which ran for 13 weeks from February to May 2023. We invited views from operational and political leaders working in fire and rescue authorities, unions, staff groups, employees and people working within fire and rescue services, as well as the wider fire safety, public safety and protection sectors.

It may make sense to go into more detail on how the 73% modelling works. It is based on two data sources: fire and rescue service incident data covering the period between April 2018 and March 2023, and data on the average, daily business-as-usual availability of pumping appliances in the 12 months up to January 2023. The model calculates the proportion of days on which each fire and rescue service had more pumping appliances simultaneously mobilised than would be available under a minimum service level set at different percentages. This allows us to set the minimum service level at a threshold which would ensure that no single fire and rescue service is likely to be overwhelmed by anticipated demand on a strike day.

However, that does not mean that 73% of all firefighters will have to work on strike days. If a fire and rescue authority issues a work notice, the relevant fire and rescue service must be able to safely crew 73% of the appliances that would be available if no strike action were taking place. It would be for the individual employer to determine how many staff will be required to crew these appliances. The number of staff required will vary between fire and rescue services in light of local circumstances, risk profiles and approaches to the crewing of fire appliances. The primary legislation is clear that, when determining how many staff to include on a work notice, the employer must not include more staff than reasonably necessary for the purpose of providing the minimum service level.

The noble Lord, Lord Ponsonby, and the noble Baroness, Lady Twycross, asked how the minimum service level will work in fire and rescue authority areas that have large numbers of on-call firefighters. Employers in those areas will have the flexibility to include on-call firefighters on work notices. Each fire and rescue authority will be able to determine the most appropriate mix of whole-time and on-call firefighters to include on each work notice in light of the workforce composition of their specific fire and rescue service and the availability of their on-call staff members.

The noble Lord, Lord Ponsonby, asked me about the application to control rooms. Control room staff are vital members of the fire and rescue service. They do not just answer emergency calls and mobilise fire appliances; they play a vital part in bringing incidents to successful conclusions through the use of their specialised call-handling techniques. This responsibility makes it a highly skilled role. Without them, life-threatening 999 calls would be unanswered or delayed; callers in the most terrifying moments of their lives would not receive the life-saving advice that they need to stay alive; and fire appliances would not be dispatched.

The noble Lord, Lord Goddard, challenged me on fire safety. The Government have delivered a range of legislation that covers fire and building safety, including the Fire Safety Act, the Building Safety Act and various supporting regulations. This Government remain committed to measures that contrive to improve fire and building safety. I reassure the noble Lord, Lord Goddard, that fire and rescue services have the resources that they need to do their important work. Fire and rescue authorities will receive around £2.6 billion in 2023-24, and stand-alone fire and rescue authorities will see an increase in their core spending power of £95.4 million 2024-25, which is an increase of 5.6% in cash terms compared to 2023-24. Decisions on how many firefighters are required and how their resources are best deployed to meet their core functions are a matter for each fire and rescue authority.

The noble Lord, Lord Hendy, asked about unions. Of course, we acknowledge that unions play an important role in the process, as is set out in the guidance of the Department for Business and Trade, published on 16 November 2023. We have invited the unions to be engaged in the production of further guidance that sets out how the policy can be operationalised, and the more detailed guidance is being developed in partnership with key stakeholders and will be available in due course.

In conclusion, we believe that these regulations are a positive and proportionate step to ensure that any strike action by the fire and rescue services does not put public safety at risk. For that reason, I commend them to the Committee.

Motion agreed.