Strikes (Minimum Service Levels) Bill

Debate between Baroness O'Grady of Upper Holloway and Lord Callanan

Consideration of Commons amendments
Thursday 8th June 2023 Lords Chamber

[Lord Callanan (Con)]

My Lords, we have once again had a reasonably full debate on these matters, so the House will be relieved that I will keep my response brief. We have largely covered many of these points before, so we do not need to repeat them.

Briefly, in response to the noble Baroness, Lady O’Grady, I restate the view of the Government that this Bill is not about sacking workers, and nor is it about forced labour, which is a frankly ridiculous exaggeration. It simply equips employers to manage instances of non-compliance with a work notice. That is exactly the same situation as any other strike action that is not protected under existing legislation.

To be clear, under the original drafting of the Bill an employee who went on strike contrary to being named on a work notice would lose their automatic protection from unfair dismissal only provided that they were notified in advance of the requirement for them to work and that they must comply with the work notice. We expect employees to be told if they are required to work and, in that case, what work they are required to do. In such circumstances, it is reasonable for an employer to consider, if it wishes, disciplinary action if an individual none the less chooses to continue to strike, thereby putting the public at risk. It is at the discretion of the employer as to what, if any, disciplinary action is taken in these circumstances. In response to the noble Baroness, Lady Fox, the Government expect employers to be fair and reasonable and to take this action only where it is necessary.

Unions must have a role to play in minimum service levels, otherwise they would be able to induce people to strike as normal and take steps to undermine minimum service levels being achieved. That directly counters the objectives of this policy. The consequences of a union failing to play that role are consistent with any other failures by a union to comply with any other existing law.

In response to the noble Lord, Lord Collins, as I said in my opening speech the Government are willing to consider whether there is a case to provide further detail on what reasonable steps are, what this means for trade unions and how they might fulfil those obligations.

I stress to this House that Motions C1 and D1 would continue the prolonged and disproportionate impact of strike action on the public. With this legislation, the Government are taking a fair and proportionate approach to balance the fundamental ability of unions and their members to strike, on the one hand, with the need for the wider public to access some of the key services that they expect and pay for, on the other. I therefore hope that the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, do not push their amendments. I commend the government Motions to the House.

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

I wish to test the opinion of the House.

Strikes (Minimum Service Levels) Bill

Debate between Baroness O'Grady of Upper Holloway and Lord Callanan

Report stage
Wednesday 26th April 2023 Lords Chamber

[Lord Callanan (Con)]

I do not think it is a different thing at all. If action is prohibited completely, as it is in the three countries I mentioned—let us take, for example, fire services—there is no provision for workers to take any strike action at all. If they do so, they are in breach of their contracts—presumably they can be dismissed, in those countries. I think the comparison is completely valid.

I turn to the amendments. To achieve a minimum service level, employers, employees and trade unions all have a part to play, in our view, and the Bill makes it clear what those respective roles are. The amendments in this group would remove key parts of the legislation, which we believe are necessary to make it effective, and I suspect that is the aim of those who tabled them. As such, I take the same position as I did in Committee and resist these amendments.

Amendment 4 seeks to remove the consequences for an employee who participates in strike action while being identified in a work notice. The approach taken is both fair and proportionate. It enables employers to manage instances of non-compliance with a work notice in exactly the same way that they would manage any other unauthorised absence. I repeat the point for the benefit of the noble Lord, Lord Collins: this is not about sacking workers, nurses or anyone else. An employee loses their automatic protection from unfair dismissal for industrial action if they participated in a strike contrary to a work notice, as indeed they would lose their unfair dismissal rights if they participated in any other form of strike action that was not in accordance with the law, just as failing to attend work without a valid reason does not necessarily mean that they will be dismissed. It simply enables employers to pursue disciplinary action if they believe it is appropriate, but it is ultimately at their discretion whether or not to do so.

Amendment 4 also provides that individuals identified in a work notice are not subject to the work notice unless they have been given a copy of it, and the employer must prove that the individual has received it. However, under the current drafting, employees lose their automatic unfair dismissal protection for going on strike in contravention of a work notice only if the employer notifies them that they are required to work under a work notice and of the work that they must carry out. I believe that this additional requirement is both unnecessary and duplicative; it could also be inappropriate as workers could be given a work notice which identifies thousands of other workers.

Amendment 5 seeks to ensure that unions have no responsibility for ensuring that their members do not participate in strike action and attend work instead if they have been named on a work notice. It also ensures that there are no consequences for failing to meet that responsibility. I suspect this is an attempt to disrupt the balance between the ability to strike and the rights and freedoms of others to go about their lawful business, which is ultimately at the heart of the Bill.

If employees are not incentivised to attend work on a strike day when they have been identified on work notice, or if a trade union has no responsibility to ensure that its members comply, the effectiveness of this legislation will be severely undermined. I suspect noble Lords opposite know that their amendments will do exactly that, and I am sure it is therefore no surprise to them that I cannot support them on this occasion. Given the direct disruption that these amendments will have on the ability of the public to go about their normal, lawful business, I ask noble Lords—without too much optimism—to feel free to not press their amendments.

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

I thank the Minister for that response, but Amendment 4 is about the individual freedoms, dignity and livelihoods of workers. I therefore wish to test the opinion of the House.

Strikes (Minimum Service Levels) Bill

Debate between Baroness O'Grady of Upper Holloway and Lord Callanan

Committee stage
Thursday 23rd March 2023 Lords Chamber

[Lord Fox (LD)]

My Lords, I fully expect the Minister to stand up and tell us that none of these amendments, which have been put so well by noble Lords, is necessary. I expect him to say that there is no possibility of the Bill, once it becomes an Act, breaking or impairing our relationship with the international organisations that noble Lords have mentioned. I wonder how he will be able to say that, given the nature of the Bill.

We come back to its skeletal nature and the answer which nobody seems to know to the question “What is a minimum service level?” Until we know, we do not know whether the Bill breaks any agreements that we have with organisations in this country or around the world. I refer your Lordships to our previous debate in Committee, in which we discussed correspondence with the noble Lord, Lord Sharpe, in which he represented the issues around the fire and rescue services. I remind noble Lords that, after I prompted him on why the consultation had raised the issue of the Grenfell Tower fire and the Manchester Arena bombing, the Minister—the noble Lord, Lord Callanan—said that one thing the consultation sought to probe was that the minimum service level would include the ability to cope with issues on that scale. He did not disagree with me when I came back and said that that implied that 100% of the fire and rescue services in an area would need to have been named in the work order under a minimum service level. In effect, that would ban striking.

In the event of such a minimum service level, that calls into question our relationships with the ILO, the EU under the TCA and others, because it is a de facto ban on striking. It may or may not upset those relationships, but I want the Minister to be able to say what minimum service level is being modelled when he tells us that we do not need to worry.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, I sometimes wonder when I listen to the noble Lord, Lord Fox, whether I need to bother replying to these debates, because he has written my speeches before I get up. For the benefit of the House, I will go through this anyway.

Amendments 18A, 18B, 32B and 36C all relate to the UK’s international obligations. Before I deal with the amendments in detail, it is worth reiterating, as I have previously and as we debated last time round with the noble Baroness, Lady Chakrabarti, that the Government firmly believe that the Bill is compatible with our convention rights and complies with all international conventions that the UK is signed up to. I signed a statement to that effect.

Amendment 18A in the name of the noble Lord, Lord Hendy, looks to ensure that the Bill does not prevent people from taking strike action and cannot be used to create an offence. I oppose this amendment because its effect would be to prevent any minimum service levels from being implemented at all. He will understand my reservations, given how the Bill is drafted in respect of the operation of work notices and where an employee would lose their automatic protection from unfair dismissal for industrial action if they participated in a strike while being named on a work notice. To be clear, our Bill does not prohibit strikes or other industrial action, but it does enable employers to continue to deliver a minimum service level to their users and stakeholders during and notwithstanding that action.

The Bill is about balancing the ability to strike with the rights and freedoms of others. Preventing minimum service levels being implemented does not strike a balance; it would merely maintain the current disproportionate impacts that strikes can have on the public—although I expect that that is a cause of legitimate disagreement between us.

Amendment 18B would ensure that the regulations did not compromise our obligations under the trade and co-operation agreement. However, given the reiteration I made earlier, we believe that this amendment is duplicative and unnecessary. The Government remain committed to our international obligation and respect the process of the respective governing bodies in providing any rulings that are required concerning compliance. I recognise that the noble Lord, Lord Hendy, has a desire for relevant international conventions and treaties, and their associated governing bodies, to have a greater role in respect to minimum service levels in Great Britain. But my argument here is that incorporating decisions by supervisory committees into domestic primary legislation, as this amendment seeks to do, goes way too far.

Amendment 32B, tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, seeks similarly to prevent minimum service regulations being made where they could be said to be within scope of the trade and co-operation agreement and other international obligations. As I stated at the outset, the Government firmly believe that we are entitled to bring forward this legislation—many other European countries already have similar legislation—which I remain satisfied is compatible with all the international conventions the UK is signed up to. The noble Baroness will, of course, be aware that there are existing mechanisms for monitoring adherence to the trade and co-operation agreement—if indeed there are concerns from EU member states or the European Commission, although I do not believe there will be.

In any case, I am surprised if anybody thinks that ensuring that the public are able to access some level of service in key sectors, including emergency services, during strike action goes to the heart of the TCA, not least because many EU member states already have minimum service level arrangements in place. Indeed, in some of the services we have mentioned, some member states ban strike action completely in those areas. As drafted—and perhaps not intentionally—this amendment would prevent minimum service levels regulations being made at all, which, given that is the purpose of the Bill, we clearly cannot accept.

Finally, on Amendment 36C from the noble Lord, Lord Hendy, and to respond to the points the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Woodley, made, as I have stated previously, the Government firmly believe that the Bill is compliant with convention rights and international conventions. The Bill also enables regulations to be made in a way that is compliant with the convention rights, and on making those regulations, Secretaries of State will need to carefully consider the relevant articles of the ECHR, alongside international conventions, if they choose to suggest minimum service regulations to Parliament. So they will also have to make similar statements.

I highlight that this amendment seeks to restrict minimum service levels so that they can be made only where they are necessary to provide protection for the life, personal safety or health of the whole or part of the population. While the protection of life and health are indeed important aims of minimum service levels in areas such as healthcare—

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

I apologise to the Minister—it took me a while to find this on my system. He referred to minimum service levels being common in other European countries. I submitted a Written Question on this, to which the noble Lord, Lord Johnson, replied:

“The Government does not believe that direct comparisons with other European countries are particularly helpful because of the different administrative and legal frameworks governing industrial action.”


The Minister will also be aware that the overwhelming majority of the other countries in Europe that are cited provide for negotiated minimum service levels, not state diktat.

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[Lord Callanan (Con)]

I will seek further legal advice. I am not a lawyer, but it seems to me that if the provision already exists in other applicable legislation, there is no need to duplicate that provision in another statute. I will certainly check that with the lawyers for the noble Lord.

Amendment 29 seeks to require the employers to be satisfied that the work notice does not identify more people than reasonably necessary before giving a work notice. However, as we set out in new Section 234C(5), the employer is already required to not identify more persons in the work notice than are reasonably necessary for the purposes of providing MSLs.

Amendment 30, meanwhile, seeks to require the employer to assess the equality implications of the work notice. Again, in our view, this is not necessary. The Bill does nothing to reduce the existing obligations of employers under the Equality Act 2010. As I said, there is an existing legal provision that continues to apply. There is no need to restate it.

Finally, Amendment 31 seeks to require the employer to assess the health and safety implications of the work notice and consult health and safety representatives. The Government’s view is that the current requirements in the Bill strike the right balance between the views and perspectives of employers and unions to enable a reasonable and fair work notice to be issued. As I have said, the Bill explicitly requires that employers must consult the relevant trade union and have regard to its views before issuing a work notice.

Adding any further steps or requirements to this process will result in disproportionate and costly burdens for employers and could result in delays to the issuing of a work notice by the employer and therefore delays to minimum service levels being applied. I fully accept that this may well be the purpose of the amendment, but I hope the Opposition understand why the Government cannot accept it. Additionally, when drawing up work notices, employers must still adhere to the relevant requirements set out in existing health and safety law. That is unchanged by this legislation.

For these reasons, the Government resist these amendments.

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

I thank the Minister—I think—for that response. Many of us raising legitimate concerns about this Bill are quite disturbed that the argument for naming individuals seems to be that you have to name individual workers so that they can be threatened with the sack and that it is necessary to share those names with employers so that they can be required to take reasonable steps or face significant sanctions, including seeing the entire workforce stripped of protection against unfair dismissal.

The whole basis of this Bill seems to be born of a “command and control” school of management where you order people to work rather than seek agreement, which I think most modern management is about. That is why it is particularly frustrating for those of us who are critics of the Bill, because we know that where minimum service levels are genuinely needed for safety issues and made by agreement, whether or not those agreements have been made at the last minute—so be it; that is often the case—they are much more likely to work effectively than anything proposed in this Bill.

I could make a number of points. I thank the Minister for his point about Amazon, but I feel I have now heard very confusing messages across this Dispatch Box from him and the noble Lord, Lord Markham, so I will want to come back and clarify that.

At some point I would like an opportunity to explain more clearly the real concerns in the trade union movement about victimisation and derecognition. They are not being brought up to put obstacles in the way of this Bill. They are born of real-life experience, both of trade union officers representing shop stewards, convenors and reps who have been victimised and of many of our families who have been through this. The penalty of victimisation is so high—to have your livelihood removed is massive. I would like to pursue this area in other ways if possible, because I am sure we can convince the Minister of the sincerity of that concern and the need for genuine protection.

It is confusing why there are specific references to not selecting people on the basis of trade union membership but not extending that to those who hold trade union office and lay leadership positions.

I could go on, but I will leave the Minister with one last question. I have yet to meet a reasonable employer who wants this Bill. I have had plenty queueing up to tell me that it is wrong, immoral or maybe just unworkable and will make matters worse from a pragmatic perspective. Can the Minister tell us of a single employer or group of employers batting for this Bill? I have yet to meet one. I beg leave to withdraw.

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

My Lords, I will speak to Amendment 41 in my name and the names of my noble friend Lord Collins and the right reverend Prelate the Bishop of London, and support the amendments tabled by the noble Lords, Lord Fox and Lord Hendy.

Many of us agree that one of the most disturbing features of the Bill is that it hands employers powers to name individual workers in a work notice and potentially force them to work against their will, through a strike, without their individual consent or the agreement of their union—or face the sack. Many employers in the public and private sectors have told us very clearly that they do not want this authoritarian power because it would sour industrial relations. If the Bill is enacted, they fear that they would come under undue political pressure to exercise that power. The publication of WhatsApp messages, as I mentioned previously, between the then Health and Education Ministers revealed that at the very same time as they were publicly praising, clapping and thanking key workers for their efforts during the pandemic, privately they were describing those same workers and their unions—unions are made up of workers—with contempt.

The noble Lord, Lord Callanan, has often sought to reassure us by saying that he hopes the powers will never be used and that there would be no undue pressure. However, I am sure that he would agree—I might even get a smile out of him—that if Gavin Williamson was Education Minister today, on the evidence of those WhatsApp messages, he would be straining at the leash to ensure that academy schools pulled that trigger. That is the fear.

The Government have continually cited France, Italy and Spain as countries that also provide minimum service levels. However, unlike in the UK, in each of these countries the right to strike is a constitutional right. Perhaps the noble Lord can also confirm which of these countries, if any, have provided a blanket power to remove protection against dismissal for individually named striking workers? I submitted a Written Question on this subject, but the response I received did not answer the Question. What is more, it took 15 days rather than the expected 10 not to answer my Question. In fact, the answer, as we have heard, is zero. None of those countries does that.

Can the Minister also explain and justify a gaping hole in the consultations issued on the Bill so far? Those consultations failed to ask whether respondents agree with the Government that it is acceptable to sack individual firefighters, ambulance staff and rail workers if, for example, for reasons of conscience they do not comply with the work notice. Could it possibly be that this is not in the consultation because Ministers know that they will not get the answer that they want? Most fair-minded people find the idea of such sackings abhorrent. The sacking of individually named workers who refuse to comply would be catastrophic for workers’ rights, staff morale and industrial relations in this country. I remind the Minister that NHS job vacancies currently stand at over 133,000 and that 17% of newly qualified teachers leave within two years.

Not so long ago, following a public outcry about what happened at P&O, Government Ministers condemned its scandalous behaviour, and rightly so. Ministers said then—I quote from the 24 January government press release—that unscrupulous employers

“must not use threats of dismissal to pressurise employees into accepting new terms”.

But the Bill provides powers to do exactly that: to pressurise key workers into accepting terms under threat of the sack. These key workers’ heroic work through the pandemic has earned the public’s respect and gratitude. One firefighter was moved to write a letter about his experiences. He says that he has been proud to work for the service for 15 years, including being deployed to Nepal following the devastating earthquakes in 2015; that he and his colleagues have a can-do attitude and have provided emergency cover voluntarily when needed through industrial action; and that they entered the service because they want to help people. He warns against this legislation and says that it is unnecessary, given that arrangements for emergency cover are already in place, and says that Ministers

“can’t simply legislate away the depth of anger and frustration we feel about how we’ve been treated. The Bill could lead to individual workers like me being sacked for taking part in legal and democratically decided industrial action over issues which are genuinely of concern to society in general.”

Taking the power to sack workers whose names are chosen unilaterally by employers, as sanctioned by Ministers, is understandably perceived as deeply provocative. If this firefighter refused to comply with the work notice, does the Minister really imagine that his colleagues would stand by and let him be sacked? Some argue that the Bill is intended to be provocative but, if so, that would be foolish. The provision to sack workers flies in the face of all industrial relations common sense and any sense of human decency.

I know that we are covering the same ground, but it is not just named individuals who could be vulnerable to the sack, as the Joint Committee on Human Rights made clear in its report:

“We find it hard to see how it is compliant with Article 11 ECHR to expose any participant in industrial action to the risk of dismissal simply because a trade union fails to take unspecified ‘reasonable steps’ required in respect of those subject to a work notice.”


I will not go on, but I look forward to the Minister's response—or, better still, an indication that this Government will remove that right to sack striking workers from the Bill.

[Lord Callanan (Con)]

My Lords, I thank all noble Lords who have contributed to this debate. At the risk of provoking further interventions, I will start by replying to the noble Baroness, Lady Chakrabarti. I do not know the legal definition of victimisation, but her understanding of it is clearly different from mine. I would define it as something like “subjecting an individual to degrading, unfair treatment”. In effect, a work notice says to an employee, “You fulfil your contract, as has been previously agreed, as normal. You come into work, do your normal contracted job and get paid for it.” In any definition that I understand, that is not victimisation. Obviously she has an alternative view, but I do not believe that it would come under the definition.

I will directly address the point by the noble Baroness, Lady O’Grady. I have said it before and will say it again: this legislation is not about sacking key workers. Let me be very clear about that. She inquired about the outline of the Bill: it is about protecting the lives and livelihoods of the public by enabling minimum service levels to be applied on a strike day. If people comply with the legislation, then there is no question of anybody being sacked on the basis of it.

This group of amendments seeks to ensure that no detrimental action could be taken by an employer against persons who are named on, but then fail to comply with, a work notice. There would be no consequences for participating in a strike despite being named on a work notice. The whole intention of these amendments is not to achieve a balance between the ability to strike and the rights and freedoms of the rest of us to go about our normal daily business—to get an ambulance, to attend the health service or to have a firefighter come to put out a fire in my property. This is about ensuring that strike action can continue with no consequence whatever and with no regard as to whether a minimum service level will be achieved. That fundamentally cannot be accepted by the Government.

For a minimum service level to be achieved, it strikes me as obvious that enough people need to attend work and therefore workers need to be appropriately incentivised to do that. The legislation achieves this by removing the automatic protection from unfair dismissal where employees participate in strike action despite being named on a work notice. While it is at the discretion of employers rather than the Government as to what, if any, action is then taken against employees in those circumstances, we think it vital that the Bill equips employers to manage instances of non-compliance, just as they would in any other case of unauthorised absence, to enable them to achieve that minimum service level. As my noble friend Lady Noakes observed, employees retain all their existing protections against discrimination—a very good point that further reinforces why these amendments are not required.

Overall, we believe that the approach in this legislation is fair and reasonable and ensures that there is the balance, which we have talked about so often, between the ability to strike and the rights and freedoms of everyone else to go about their daily business and use essential public services. Removing the ability for there to be any consequences whatever for failing to comply with a work notice would likely lead to strikes being more disruptive, as we have seen, when compared with the level of service that employers would be able to provide by applying a minimum service level that allows for these consequences.

Finally, there is a point of detail. Amendments 32 and 32A, if implemented, would cause a significant legal conflict with Part 2 of the Schedule, which makes amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 to make clear that there is no automatic protection from unfair dismissal for an employee who is identified in a valid work notice but participates in the strike contrary to that work notice.

In conclusion, I resist these amendments on the grounds that they seek to sustain or increase the disproportionate impact that strikes in these key areas can have on the public as a continuation of the status quo, a continuation of the public being disproportionately impacted by strikes and a continuation of lives and livelihoods being put at risk by those strikes. Therefore, I cannot accept these amendments.

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

If I can elaborate even further, it is not necessarily the issue of being counterintuitive or not; if there is a voluntary agreement, both parties enter into that voluntary agreement with good faith. So if, as we have discussed many times before, safety is genuinely at risk and there are life and limb agreements, unions and employers work incredibly closely together to secure the consent of individual workers, and issue them with what we call exemptions to go across that picket line. That can all happen. But as soon as you introduce the law and remove that requirement for agreement, why is it our responsibility to make this work? It is not our responsibility; it is the employer’s responsibility. You cannot have it both ways. If we are going to have a voluntary agreement, we will do our best to honour and make that voluntary agreement work. If the state intervenes and dictates to workers under threat of dismissal, it simply will not work.

[Lord Callanan (Con)]

My Lords, I am grateful to those who have contributed to the debate.

It should go without saying that, to achieve a minimum service level, employers, employees and trade unions all have a part to play, and the Bill makes clear what those respective roles are. As many Members have quoted, unions are required to take “reasonable steps” to ensure that the union members named in the work notice comply with the notice. If they do not, they will lose protection from legal claims.

In response to the noble Lord, Lord Woodley, I say that there are a range of steps that trade unions could take, and what is considered reasonable can depend, as my noble friend Lady Noakes made clear, on each specific situation. First and foremost, a trade union should not call a union member identified in a work notice as required to work on a particular day out on strike that day. The trade union could also encourage those individual members to comply with the work notice and make it clear in its general communication with workers that, where members are named in a work notice and therefore required to work on a particular day, they should work on that particular strike day.

Before turning to the individual amendments, I will respond to the question from the noble Lord, Lord Fox, about what would happen if a number of the workforce are sick on the day of the strike. As I indicated to the noble Lord from a sedentary position, the responsibility of the unions is to take “reasonable steps”, as it says in the Bill. If union members named in a work notice are off sick, it is not the responsibility of the trade unions to find other members to take their place; it is the responsibility of employers to ensure that enough work notices are issued to fulfil that minimum service level.

Amendments 34 and 34A seek to diminish the responsibility of unions to take reasonable steps to ensure that their members who are named on a work notice actually attend work rather than participating in strike action. These amendments would remove any obligation on the trade unions to notify their members of the need to comply with a work notice and not to take part in the strike, which, in my view, would reduce the likelihood that a minimum service level will be maintained or achieved. Therefore, the Government are unable to accept them.

Amendment 33 goes further and seeks to ensure that unions have no responsibility whatever for ensuring that their members comply if they have been named on a work notice. It also ensures that there are no consequences for failing to meet that responsibility. I submit that that is an attempt to disrupt the balance between the ability to strike and the rights and freedoms of others, and therefore the Government cannot accept the amendment.

If a union member does not cross a picket line when identified on a work notice, this will of course negatively affect the employer’s ability to achieve the minimum service level at all. The picket line is usually a critical place for a union to exercise persuasion over its members, and we have seen some egregious examples of that. However, the Bill and the achievement of minimum service levels would be substantially undermined if the union’s obligations did not extend to picketing, and therefore we cannot accept Amendment 35.

The responsibility of the union to take reasonable steps is a continuing one, because the impact on the public is the same if a minimum service level is not achieved, whether or not that results from picketing activities. Therefore, the Government cannot accept these amendments, which would significantly reduce the responsibilities of trade unions. Our view, which is reflected in the legislation, is that they need to play their part in ensuring that essential services continue during strikes. As always, we encourage unions to act responsibly and to fulfil their statutory duty that will be established by the Bill if it becomes law. I therefore hope that the noble Lord, Lord Collins, will withdraw his amendment.

Strikes (Minimum Service Levels) Bill

Debate between Baroness O'Grady of Upper Holloway and Lord Callanan

Committee stage
Thursday 9th March 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, I am grateful to all those who have contributed to this exciting—almost, in some respects—debate about the main issues we will discuss as the Bill progresses.

Let me start by addressing the point made by a number of noble Lords—including the noble Lords, Lord Collins, Lord Fox and Lord Hendy—on the report from the Joint Committee on Human Rights. Of course, we are grateful to the committee for its work, and, in the normal course of events, we will respond to the report in full. Let me say, before then, that this Government do consider that this Bill is compatible with the ECHR.

As the noble Baroness, Lady Chakrabarti, pointed out, on the introduction of the Bill I made a statement under Section 19(1)(a) of the Human Rights Act that the provisions of the Bill are compatible with convention rights. Indeed, I have to do so on all the Bills I introduce into this House, and I have been doing a lot of that recently. I say to the noble Baroness that this is a duty I take very seriously. I would not just wake up in the morning and sign a bit of paper. I respond to legal advice that I receive, as I do on every Bill, and I often go back and query that legal advice, because I take my duty to sign that statement seriously. I can tell the noble Baroness that I was happy to do so in this case, because I am confident that the Bill strikes the right balance between the ability to strike and the rights and freedoms of others.

It is a question of balance, and I am grateful for the comments from my noble friend Lord Henley, who is actually a member of the committee, in his helpful speech. As he pointed out, the report does not say that the Bill is not compatible with the ECHR. Regulations that set minimum service levels in specified services will, of course, need to be compatible with the ECHR, including Article 11, and the Government will ensure that they introduce regulations that are compatible. Obviously, failure to do so would result in a breach, and a court would be able to grant such remedy as it considers just and appropriate should a union or others take a matter to judicial review. I am sure there is a lot of thinking about that at present.

In response to the question from the noble Lord, Lord Collins, about when the provisions would apply, and the issue of retrospectivity, I agree with my noble friend Lady Noakes. It will of course apply only to future action. After Royal Assent, we need to lay the appropriate regulations, which would need to be approved by both Houses before the legislation can come into force.

The noble Baroness, Lady Donaghy, asked me whether employers can discriminate against trade union members when issuing a work notice, I am happy to confirm to the noble Baroness that the Bill is clear that employers should have no regard to trade union membership when they are issuing work notices.

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

My noble friend Lady Donaghy also raised the issue of recommendations that refer to trade union activities. The real fear here is that a bad employer could use a work notice to victimise and discriminate against not only union members, which, as the Minister says, is covered by the Bill, but against elected union workplace representatives. I wonder whether the Minister can give us reassurance that moves will be made to ensure that that cannot happen. It clearly cannot be right that an employer could victimise elected union representatives in the work notice. We hope it would never happen, but we cannot rely on hope.

[Lord Callanan (Con)]

I think the noble Baroness was, in effect, asking me to consider amendment 4 from the JCHR, which is what the noble Baroness, Lady Donaghy, was referring to. I was about to come on to that. The noble Baroness, Lady O’Grady, is getting slightly ahead of herself. There are in fact later amendments, Amendments 27 and 28, tabled by the noble Baroness and the noble Lord, Lord Collins, that seek to achieve a similar effect to that recommended, and we are going to have a fuller debate on that in group 10. So, if the noble Baroness will forgive me, I will address those points in more detail when we get there.

To restate why this legislation is needed—because this has been a general debate—let me set on record the Government’s position that there needs to be a reasonable balance between the ability of workers to strike and the rights of the public, who work hard and expect their essential services, which they pay for through their taxes, to be there when they need them. The minimum service levels aim to restore this balance in order to protect the lives and livelihoods of the public from disproportionate impacts and results of strike action. This important protection should be afforded, in our view, to members of the public without delay, which is why we are opposed to the amendments seeking to delay the imposition of this legislation.

Amendment 1 seeks, in effect, to extend the impact that strikes can have on the wider public. It would ensure that strikes could continue for up to six months of the whole strike mandate period after the Bill comes into force without the relevant minimum service level being applied. Parties, including employers, unions and workers, will have sufficient notice of minimum service levels prior to their application via, for example, the consultation or parliamentary processes that will need to take place before those regulations come into force. So our view is that further notice is not necessary.

Amendment 50 seeks to delay commencement of all provisions of the Act, including the regulation-making powers, until two years after the day on which the Act is passed. My noble friend will be unsurprised to know that the Government do not support this amendment. Practically, the legislation will not take effect, as I have said, until the regulations are made to specify the relevant services that minimum service levels shall apply to and the levels of service that an employer can require its workers to provide in relation to strikes. This amendment would mean that the earliest point at which minimum service levels could be enforced in practice is two years after the Act is passed.

Amendment 51 would result in further delays that essentially duplicate the work and the report of the Joint Committee on Human Rights that has already been published, requiring yet another report before minimum service regulations are made. Again, we feel that this would be unnecessarily burdensome and serve no practical purpose, because these amendments would just delay the implementation of MSLs. I realise the Opposition would like to do that, but it is not the position of the Government. Therefore, we cannot accept these amendments, which, for no good reason or constructive purpose, would significantly extend the disproportionate impact that strikes can have on the wider public, on which lives and livelihoods depend. Therefore, I hope that the noble Lord will withdraw his amendment.

Strikes (Minimum Service Levels) Bill

Debate between Baroness O'Grady of Upper Holloway and Lord Callanan

Committee stage
Thursday 9th March 2023 Lords Chamber

[Lord Callanan (Con)]

My Lords, it is my pleasure to reply on this group containing Amendments 13 and 18, grouped together as they both relate to levels of service on non-strike days. The Government do not support these amendments on the basis that they add unnecessary limitations to and delays in establishing the minimum service levels. Amendment 13 seeks to cap minimum service levels to the lowest service levels recorded for a relevant service during the 12 months before regulations are laid. It would require the Secretary of State to lay a report in both Houses before introducing regulations to evidence this condition.

Before responding generally on that amendment, let me first answer the points made by the noble Lord, Lord Fox, regarding his correspondence with my noble friend Lord Sharpe. The noble Lord is correct to point out that one option within the consultation Minimum Service Levels for Fire and Rescue Services looks at staffing levels being geared to respond to specific risks, including a minimum standard to respond to a major incident. However, this is just one of five options outlined in the consultation, and I do not consider that my noble friend has prejudged that consultation. I know that he is very willing to engage further on minimum service levels for fire and rescue services with the noble Lord if that would be helpful.

Before I turn more directly to the amendments, I will take an intervention from the noble Baroness, Lady O’Grady.

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

My Lords, just on fire and rescue services, does the Minister recognise that at the root of many of the disputes is a concern about what the level of service and staffing is on every other day of the year? Take the fire service, for example: since 2010, it has lost 12,000 posts, nearly 20%; 50 fire stations have been closed. Those firefighters really care about that. Further, and very briefly, my concern about the reference to Grenfell is because I spoke to firefighters after Grenfell. They were brave, they were dedicated and in some cases they were broken by that experience. They put their lives on the line and they saw terrible things. Can the Minister understand how insulting it is to use that as an example in an initiative to weaken what we regard as fundamental workers’ rights? If that is a measure of the Government’s sensitivity in dealing with industrial relations, I really advise the Government that they are better off staying out of it, because it will make matters so much worse.

[Lord Callanan (Con)]

I readily concede to the noble Baroness that many public services are under pressure, despite the record sums that we are spending on them. Of course, there are pressures on many public services; I entirely accept that. I do not know the details of the fire and rescue services consultation, but I know that the noble Lord, Lord Sharpe, is very happy to continue to engage on that issue.

Retained EU Law (Revocation and Reform) Bill

Debate between Baroness O'Grady of Upper Holloway and Lord Callanan

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Callanan (Con)]

Ultimately, this is a political point. The most successful economies in the world are those which have relatively low levels of regulation. The noble Lord and I may have a political difference, but I am sure that we can all propose lots of different examples from think tanks and studies for our different political positions.

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

Can the Minister explain exactly what will be retained and what will not? He said that work was under way in departments and implied that stakeholder consultation would be a critical part of that. Can he confirm whether there has been any consultation with trade unions on, for example, the working time directive? Although there has been discussion about active removal of legislation, there is real concern that vital protections will be actively allowed to fall off that cliff edge, such as the working time directive. Has there been any consultation with key stakeholders so far? Which particular pieces of legislation will be allowed to fall off as opposed to just falling off by accident? Currently, employers and unions certainly do not know.

[Lord Callanan (Con)]

I know that the noble Baroness feels passionately about labour regulations. We had an extensive debate about this in the first grouping, on labour law. I am happy to go through the issues with her again if she wishes but she knows that the Government’s position is that UK workers’ rights on maternity provision, holiday pay, the minimum wage and so on substantially exceed the basic standards in EU law and those in many other EU countries. Our commitment to workers’ rights is substantial, as I said to the noble Baroness when we discussed this at great length the other day. The department is currently reviewing labour law in the context of maintaining high standards on workers’ rights. When that work is complete, if any new statutory instruments are brought forward, the normal process of consultation will apply. I am sure that that will result in consultations with the trade unions as well.

Retained EU Law (Revocation and Reform) Bill

Debate between Baroness O'Grady of Upper Holloway and Lord Callanan

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Callanan (Con)]

“Yes” is the answer to the noble Baroness’s question. All new regulations will be subject to a period of consultation. I have to say, with great respect, I would have a little more sympathy for the noble Baroness’s argument had any of these regulations been introduced into UK law in the first place with a period of consultation—but, of course, we all know they were not. Many of the people complaining now that these regulations are so valuable never said anything at the time about the process by which they were introduced. But I accept that is a difference of principle between us.

As I said, our high standards do not and never have depended on EU law. Ministers will have the power to preserve such retained EU law from the sunset where appropriate. Building on some of the earlier points made by the noble Baroness, Lady Humphreys, this includes Ministers in the devolved Governments. As such, it is the Government’s contention—I suspect it is one that will not draw much sympathy from the Opposition—that there is simply no need for any carve-outs for individual departments, specific policy areas or sectors, particularly when I have been able to reassure the Committee on the principles of maternity rights and employment law as a whole.

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

My Lords, one reason we have such concerns about the timetable is that, as we have heard in exchanges today, there is no agreement on the evidence base we are working to. Part of solving that would be going back to the drawing board on the impact assessment, which, as we heard, was red rated and deemed not fit for purpose. Could the Minister explain at what point we will be looking again at that impact assessment and dealing with the criticisms of the one that received the red rating? What impact could that have on the timetable? If we could agree more and have dialogue on the evidence base, perhaps we might be able to make more progress.

[Lord Callanan (Con)]

I totally understand the point the noble Baroness is making. I have looked at this—indeed, I was the Minster responsible until very recently for the Regulatory Policy Committee, which does some fantastic work. But of course it is very difficult to produce an impact assessment for what is essentially an enabling framework Bill. I think what would be more relevant to the noble Baroness, and what she would be more interested in seeing, are the detailed impact assessments that will be produced on the particular regulations. If regulations are just carried on and essentially replaced, there will be no need to bring an impact assessment because there is no change. However, if change is proposed, of course the relevant departments will produce impact assessments for those particular regulations. I am sure the noble Baroness will have great enjoyment in reading those.