Rail Dispute: Michael Ford QC

Baroness Vere of Norbiton Excerpts

Wednesday 29th June 2022 Lords Chamber

[Lord Harris of Haringey]

To ask Her Majesty’s Government what assessment they have made of the legal opinion from Michael Ford QC on the legal powers of the Secretary of State for Transport in respect of the rail dispute.

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)]

My Lords, we have noted the advice from Michael Ford QC. Train operators are required to agree how they manage industrial relations risk, including risks from industrial action, through their contracts with the department. Before incurring costs such as pay increases or changes to terms and conditions, the Secretary of State needs to be satisfied that these are affordable and in the long-term interests of the taxpayer, and take steps to protect the public purse.

[Lord Harris of Haringey (Lab)]

My Lords, I am grateful to the noble Baroness for that reply, as she clearly accepts the legal advice obtained by the Trades Union Congress on this point. However, it gives the lie to statements made by successive Ministers—including her noble friend in the answers he just gave. Where there is responsibility, the Government dodge it; where there is law, they tend to ignore it and mislead the public and Parliament. What is the concern of the Government in this dispute other than petty party-political manoeuvring? When will they take serious action? What is their strategy for resolving this in the interests of rail users and, ultimately, the country? So far, we have seen no sign of that, despite the clear legal obligations and responsibilities placed on the Transport Secretary.

[Baroness Vere of Norbiton (Con)]

There were many questions there, to which I will try to respond. The real prize in all this, for both rail passengers and rail freight, is long-term transformation to a modern and efficient seven-day railway, where services align with demand and adapt to current patterns of travelling and rail freight, from the perspectives of both location and time. The Government absolutely want the employers to be able to reach an agreement with the RMT. We are clear that it is for the industry to conduct the day-to-day negotiations with the RMT in this dispute. Under the Labour Government of some time ago, there were strikes by both firefighters and postal workers; they took exactly the same approach and asked the employers to negotiate with the unions.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, can the Minister tell us who owns Network Rail?

[Baroness Vere of Norbiton (Con)]

The Government, and therefore the taxpayer.

[The Lord Speaker (Lord McFall of Alcluith)]

The noble Baroness, Lady Brinton, will now contribute remotely.

[Baroness Brinton (LD) [V]]

My Lords, over 30,000 passenger-facing rail staff have completed the disability training required by the Office of Rail and Road. As a wheelchair user, travelling by rail is noticeably safer as a result of the excellent assistance train staff provide. The Government want to allow the use of agency workers in place of striking station and train staff. If agency staff have not completed the regulator’s required safety assistance training, would that breach the public sector equality duty? Would disabled passengers be safe in such circumstances?

[Baroness Vere of Norbiton (Con)]

I can reassure the noble Baroness; there seems to be some misconception that the Government plan to recruit lots of agency staff who have no training whatever for the task they are being asked to perform. That will not be the case at all. We have very safe and increasingly accessible railways, and we will continue to do so. If we ask any staff to do anything beyond their normal role, they will of course receive the appropriate training.

[Lord Tunnicliffe (Lab)]

My Lords, I thank the noble Baroness for pre-empting some of my questions by agreeing with Michael Ford QC. In his opinion, he says:

“Train operators are not free to agree terms and conditions with their employees without the involvement of the SoS.”


However, being a bit apprehensive about lawyers—because all too often you just get another lawyer—I went to the essence of the powers, which is found in the national rail contracts. I looked at the one with South Western Railway. On page 38 of its 522 pages, in paragraph 5.2 of chapter 2.2—the section on industrial action—it states:

“The Operator and the Secretary of State shall use reasonable endeavours to agree how the relevant Industrial Action shall be handled, bearing in mind the Dispute Handling Policy, provided however that the Operator’s handling of such Industrial Action will be subject always to the Secretary of State’s direction”.


This is not a limp-handed agreement, but a very powerful one. Before I researched it, I did not know that the department essentially indemnifies the losses to train operating companies during industrial disputes. The way it enforces this agreement is by withdrawing such support. Does the noble Baroness agree that the Secretary of State can, and indeed must, involve himself in this dispute? Given that he has absolute discretion over the terms of the dispute, this is a dispute between the Secretary of State and the rail unions. Should he not embrace that responsibility and sort it out?

[Baroness Vere of Norbiton (Con)]

That is an awful lot of questions about who meets who, and why. Let me explain exactly why the current negotiations are set out in the way that they are. The RMT asked that negotiations be conducted at a national level. The Rail Delivery Group has the mandate to conduct the negotiations. The talks are therefore at the Rail Industry Recovery Group level. The industry has bent over backwards to negotiate in a way that the RMT demands, and will continue to do so. The industry is offering daily talks and Ministers receive daily updates.

[Lord Bellingham (Con)]

My Lords, is the Minister aware that, during the last Labour Government, there were disputes with the rail unions, and former Labour Secretaries of State did not negotiate directly and very much left negotiations to Railtrack, and then Network Rail?

[Baroness Vere of Norbiton (Con)]

I was not immediately aware of that, but it highlights what I have said also about the firefighters and the postal workers. It is normal for the employer to negotiate with the union. The Government should not be sitting at the table, and the RMT boss does not want us there.

[Baroness Randerson (LD)]

My Lords, without signals, the trains cannot run, and it takes over a year to train a signaller. Does the Minister accept that it is therefore an empty threat, and one designed to raise the temperature of the situation, when the Government say they are going to legislate to allow agency workers to take over railway jobs? It will not allow the railways to run unless there are signallers available.

[Baroness Vere of Norbiton (Con)]

As I have already said, there would be no question of the Government or the industry putting anybody who was not fully trained into a role at short notice. It is simply not going to happen.

On the question of signalling, noble Lords may have noticed that the Government have just announced at £1 billion investment in digital signalling for the east coast main line—I just wanted to highlight some positive news.

[Lord Grocott (Lab)]

The Minister said that the dispute is between the trade union and the employers, and it is nothing whatever to do with the Government. In answer to my noble friend Lord Foulkes, who asked who owns Railtrack, which is a party to the dispute, she said that it is the Government who own Railtrack. I just wonder how she sorts that one out.

[Baroness Vere of Norbiton (Con)]

I did not say what the noble Lord has just said I said. I said that the negotiations are between the employer and the union. I set out very clearly how and at what level those negotiations are taking place nationally. On the one hand, there are a set of negotiations with the Rail Delivery Group, which represents the train operating companies, and there are also negotiations going on with Network Rail, particularly around the reforms to transform—the important reforms that we need in order to have the modern and efficient railway that our country deserves.

[Baroness Foster of Oxton (Con)]

My Lords—

--- Later in debate ---

[Baroness Foster of Oxton (Con)]

Thank you. My Lords, does my noble friend the Minister agree that these rail disputes are less about terms and conditions, and more about party politics?

[Baroness Vere of Norbiton (Con)]

The truth of the matter is that the negotiations that are happening, and have been offered daily, are about many different things. Sometimes things get narrowly conflated, or get very heated, but at the heart of all this is the fact that we must get a modern and efficient railway. The Government have that at the front of their mind and give the mandate to the employers—that is absolutely clear—and I hope that this will be resolved as soon as possible.