Draft Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023

Lord Spellar Excerpts

Monday 27th November 2023 General Committees

[The Minister of State, Department for Transport (Huw Merriman)]

I beg to move,

That the Committee has considered the draft Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023.

It is a pleasure to serve under your chairship, Sir Edward. The regulations will be made under powers conferred by the Trade Union and Labour Relations (Consolidation) Act 1992, as amended by the Strikes (Minimum Service Levels) Act 2023. The purpose of the regulations is to set minimum service levels that can apply to specified services during passenger rail strikes. These minimum service levels are designed to balance the public’s need to make important journeys and the impact of rail strikes on the economy on the one hand, with the ability of rail workers to take strike action on the other. It is my hope that strike action can be avoided, but the regulations will mean that when strikes take place, the rail industry can provide an improved and more consistent service, in a way that is proportionate and fair for all parties.

Let me give some background to the regulations. Strike action in the rail sector has occurred frequently in recent years, and has a significant impact on people’s ability to travel. Since 2019, there has not been a single day when there has not been either a strike on our railways, or mandates for strikes outstanding. The result has been many periods of disruptive strike action, in some cases resulting in the suspension of all rail services on affected routes. Between June 2022 and November 2023, there have been 42 days of widespread disruption caused by strikes. That can have considerable consequences for the passengers and communities affected. People often struggle, or are unable, to travel to work. Others have difficulty accessing vital services, such as education and healthcare. Businesses and the wider economy suffer. Enabling a minimum service to operate during rail strikes is a means of protecting against disproportionate impacts of strike action.

The Strikes (Minimum Service Levels) Act, passed on 20 July this year, establishes a clear framework for implementing minimum service levels. The Act amends the Trade Union and Labour Relations (Consolidation) Act 1992 to give the relevant Secretary of State the power to make regulations setting minimum service levels for specified services in six key sectors, including transport. In addition, the strikes Act sets out the framework through which minimum service levels can be deployed. It gives employers the ability to issue a work notice to a trade union if a strike is called on a service specified in the regulations. The work notice must set out the staff whose are reasonably necessary if the minimum service level set out in the regulations is to be met, and the work that those staff must undertake. The trade union must take reasonable steps to ensure that the trade union members identified in a work notice comply with its requirements.

The regulations for passenger rail specify three categories of service that minimum service levels apply to, and the associated minimum service levels. Category A is train operation services. Category B is infrastructures services, and category C is light rail services.

[John Spellar (Warley) (Lab)]

The Minister says that the trade union should ensure that its members comply with the work notice. What mechanism should it use to ensure that?

[Huw Merriman]

I will come back later in the debate to the right hon. Gentleman’s point about the action that we would require trade unions to take—or rather, not take—to ensure that the standard is met.

Let me explain categories A to C. Category A covers train operation services provided by passenger train operators under agreements with the UK Government, including services provided as operator of last resort, and by devolved Governments, and local transport authorities and executives. It therefore excludes services provided by open-access and freight operators; heritage and tourist services; and international train services that start or finish outside Great Britain. The minimum service level for train operation services is the provision of those services necessary to deliver the equivalent of 40% of the operator’s timetabled services, as shown in the most recently published National Rail timetable, during the strike.

[Huw Merriman]

I thank my right hon. Friend for her point. The 40% of train operation services is 40% of services across the train operator’s timetable as a whole. It applies for as long as that timetable runs. I will go on to talk about category B, because that is hours-specific guidance.

Category B covers services listed in the regulations that are provided by infrastructure managers. During strikes by railway infrastructure workers, the minimum service level is the provision of services between the hours of 06:00 and 22:00 on the priority routes that are listed in the regulations, and on certain enabling infrastructure within a 5-mile radius of the priority routes, including connections to depots, sidings, and rail freight terminals.

Category C covers train operation and infrastructure services provided on the 11 light rail systems specified in the regulations. The minimum service level is the provision of services necessary to deliver, during the strike, the equivalent of 40% of timetabled services as shown in the most recently published timetable issued by the operator of the light rail service.

We have designed the minimum service levels to address appropriately the type of strike action that we typically see, and to ensure that the levels are operationally viable for employers. The minimum service levels are intended to achieve a suitable and proportionate balance between delivering benefits to passengers and the wider economy, and workers’ ability to strike. Our work has been informed by extensive consultation and engagement, including a public consultation between 20 February and 15 May of this year, and consultation with train and infrastructure operators, passenger representative groups, unions, and a wide range of other stakeholders.

Once in force, the regulations will apply to any future strikes, even if the mandates for those strikes predate the primary legislation, which received Royal Assent on 20 July this year. That will allow employers in the rail industry to use these regulations as soon as they come into force, should they choose to do so. The Government have identified passenger rail as a priority for minimum service levels. These regulations deliver on that commitment, and deliver on the 2019 manifesto.

[John Spellar]

Will the Minister give way? He said he would.

[Huw Merriman]

I am not giving way. I said I would come back before the end of the debate on the points the right hon. Gentleman made.

The regulations mean that train operators will be able to provide the equivalent of 40% of their timetable during strikes, whereas on some recent strike days, a number of companies have been unable to run any effective service at all. During full-day infrastructure strikes, priority routes can be open for 16 hours, instead of the 11 hours provided for under the industry’s current contingency arrangements, with some additions to the routes normally provided. Importantly, this will enable industry to encompass both the morning and evening peaks, so passengers will have more certainty around getting to work and returning home in the evening. These regulations are a positive step towards addressing the impact of rail strikes in a proportionate way. I commend them to the Committee.

[Stephen Morgan (Portsmouth South) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Edward. I thank the Minister for his explanation of the purpose and content of the legislation. Labour does not support the passing of this instrument. The Government’s failed approach to industrial relations has led to the worst strikes in decades, and this legislation will do nothing to solve those issues. Last December, the Transport Secretary admitted that minimum services for rail is “not a solution”, and that the way to get a better service was to “resolve the disputes”. The Government’s own impact assessments on this legislation in the transport sector admitted that the plans could increase strikes, disruption short of a strike, and chronic staff shortages. Even the architect of the law, the former No. 10 adviser Andrew Gilligan, said the plans may

“promote more industrial action than they mitigate”,

and will not ensure smooth services. The chief executive of the Rail Safety and Standards Board said the proposals

“won’t make the slightest bit of difference”.

Minimum service levels do not stop strikes in Europe. Countries such as Spain and France lose far more days to strikes than the UK. In Spain, minimum service levels have led to messy legal battles and delayed solutions to industrial action. It often takes the courts around a year to solve disputes on MSLs.

The impact assessment for the statutory instrument was first submitted on 12 October for scrutiny by the regulatory policy committee, which found that it was not sufficiently robust and identified areas where improvements should be made. The RPC confirmed that the points that it raised would generate a red-rated opinion, if not addressed adequately. The legislation is so rushed that the RPC has not been able to provide an assessment of the updated impact assessment, which was submitted only earlier this month. Given that the legislation has safety-critical implications and involves complex arrangements, it is absolutely staggering that the Minister is refusing to produce the impact assessment before Parliament has the chance to vote on the regulations. This is dreadful policymaking practice, with potentially serious consequences.

[John Spellar]

In my earlier exchange with the Minister, was there not a clue to the reason why he cannot provide the impact assessment? It is because he does not have a clue what the impact will be. Fundamentally, he does not know how the regulations will work. That may not be his fault; it may be the fault of whoever drafted the regulations. I am not saying that such measures could not work, but there is nothing I can see in the documentation that indicates how the regulations could work effectively.

[Stephen Morgan]

I thank my right hon. Friend for that scrutiny, and I agree with him. This is the challenge we face with this Government: they are not willing to listen or take on board our concerns about the legislation. Where was the response to the point my right hon. Friend raised earlier? That raises the question of why the Government are not willing to wait for the impact assessment to be reviewed before pushing this legislation through; they realise how poorly thought-through these plans are.

Over the past 13 years, the Conservatives have consistently attacked rights at work, including through the Trade Union Act 2016, the Strikes (Minimum Service Levels) Act 2023 and the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. Labour will repeal all of them to give trade unions the freedom to organise, represent and negotiate on behalf of their workers. A Labour Government would ensure that trade unions could get on with their job of standing up for working people, and ensuring that industrial relations are based on good-faith negotiation and bargaining. That will end the Conservatives’ scorched-earth approach to industrial relations, ushering in a new partnership and co-operation between trade unions, employers and Government, and putting us in line with high-growth economies that benefit from more co-operation and less disruption.

We need clarity from the Minister on a number of issues. First, when will he receive the regulatory policy committee’s review of the impact assessment? Why has this Committee been scheduled for today, ahead of this review being published? The rushed nature of the legislation has created significant legal grey areas, so workers and employers will be uncertain about where they stand. As the TUC has stated, that is particularly troubling because the consequences for unions and workers of falling foul of the legislation could be enormous, with unions potentially facing damages of up to £1 million.

We need clarity on how many people will effectively be denied the right to strike. The headline is that 40% of rail services will run during strikes, but delivering that is likely to require a lot more than 40% of staff, once consideration has been given to issues such as cover staff. Will the Minister confirm how many staff will be denied the right to strike by the legislation? How will the issue be managed across the network? For example, what happens if there is a strike by multiple operators and Network Rail on the same day? How many signallers would be needed to ensure that 40% of those operators’ services could run? All sorts of safety concerns could be created. In theory, could all signallers be given work notices on a strike day? What would happen if a driver named on a work notice refused to operate a service because of safety fears, such as severe overcrowding? Would such a refusal be treated as a breach of the work notice?

Finally, will the regulations extend to the freight sector via the back door, given that freight services and workers are often used by passenger operators and Network Rail to ensure a good service on the network—for example, on recovery services?

This statutory instrument is being rushed through without proper scrutiny and raises far more questions than answers. Labour has been consistently clear that this shameful assault on the rights of working people will do nothing to stop industrial action on the network, and we oppose it. Indeed, as the Government themselves admit, it could make industrial action worse. This unworkable legislation could have very serious safety implications, which the Government have steadfastly refused to address.

The fact remains that only the Secretary of State getting around the table will solve the ongoing rail dispute—something he has refused to do this whole year. Rather than launch yet another attach on workers’ rights, is it not time that the Conservatives showed some responsibility, went back to negotiations and sorted out this dispute?

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a pleasure to serve under your chairmanship, Sir Edward. I very much look forward to hearing the Minister’s full response to the questions from the Labour Front Bencher. Also, given the intervention from the right hon. Member for Chelmsford (Vicky Ford), will the Minister say whether Chelmsford is covered by the priority routes in the regulations? I will stand corrected if it is, but I have looked through the routes a couple of times and cannot see Chelmsford. I do know whether that will help the right hon. Lady’s constituents.

A breakdown in industrial relations in a train operating company can, as elsewhere, result in disruption for the long term, as workers who volunteer for rest-day working decide to take their rest days, overtime is knocked back, and good will disappears. No doubt some service managers think that they will be able to use the regulations to bully staff back to work, but the fact is that they would cause longer-term damage to the rail network and the industry. The Government are facilitating that damage through their legislation and the regulations that are before us.

Do the Government seriously think that when the industrial action is over, the workforce will be keen to go back to working under the managers and decision makers who threatened them with criminal charges if they did not comply? It does not take an expert in industrial relations to work out that the legislation could only harm relations between management and staff, and in turn harm our rail network and the wider economy. Perhaps that is why the industry has repeatedly expressed its reluctance to get involved. While the primary legislation was passing through Parliament, the Rail Freight Group told the Transport Committee—after the Minister’s time as its Chair—that

“our members who are private companies wish to manage their relationships with the trade unions directly rather than with any legislative overlay.”

Transport Focus said:

“There is no substitute for good, modern industrial relations in any industry where changes and terms and conditions are negotiated, and agreement is reached. You want to have workers who want to come to work.”

The Government have repeated their proportion of 40% in order to give the impression that the majority of striking workers will still be able to avail themselves of their human rights, but given the nature of work on the railway network—signalling, station management and maintenance, dispatch, ticket gates, public safety and so on—the reality is that far more than 40% of staff will be ordered to work.

The Scottish Government continue to regard the legislation as unnecessary, unwanted and ineffective. It seeks to undermine legitimate trade union activity and goes against the principles of fair work, the interests of the Scottish public, workers and employers, and the delivery of public services in Scotland. The UK’s record on employment rights, and indeed basic human rights, is exemplified by the International Trade Union Confederation’s annual report on workers’ rights, which this year ranked the UK alongside such champions of workers as El Salvador, Angola and Qatar.

Further to the points about the efficacy of minimum service levels in other countries, let us say hypothetically that the Scottish Government supported this idea. A look at the priority routes I mentioned to the right hon. Member for Chelmsford proves that Mick Lynch was right when he said the Government and the Department for Transport do not care about Scotland or Wales. The most northerly station covered by these priority routes is Cowdenbeath, which is barely one third of the way up mainland Scotland and 170 miles as the crow flies, or 270 miles and three train journeys, to the most northerly station, in Thurso. Therefore, even if we supported these priority routes, they would mean nothing to vast swathes of Scottish passengers.

To be crystal clear, the Scottish Government are not interested in using any of the powers the UK Government have grabbed for themselves. The Cabinet Secretary for Wellbeing Economy, Fair Work and Energy has made it clear that the Scottish Government will not co-operate in establishing any minimum service orders in Scotland over which Holyrood has competence, which is nearly all of them.

I am grateful to the Government for highlighting through their regulations the continued illogical control of Network Rail in Scotland by Westminster and the DFT. The UK Government cannot impose minimum service levels on ScotRail or the Caledonian Sleeper, because both are under the auspices of the Scottish Government—better still, they are publicly owned by the Scottish Government. However, because Network Rail remains undevolved, these regulations can be applied to track and infrastructure. So we have laws being applied to force employees to work, and trade unions to take part in that coercion under pain of criminal penalty, in order that train tracks, signalling and stations remain open and semi-functional to serve trains that will not run, because the Government who run them actually respect individual human rights. What complete nonsense! It is another nail in the coffin of the idea that Network Rail in Scotland should remain outwith the control of Scotland. Given that no services will run on all the routes I have just mentioned, will the Minister confirm that a higher proportion of Network Rail staff in Scotland will be able lawfully to withdraw their labour compared with their counterparts south of the border?

The truth is that the overwhelming consensus in Scotland—among three quarters of Members of the Scottish Parliament, over 85% of MPs, and trade unions serving Scotland—is that these work regulations are wrong, like much of the UK Government’s attitude to workers’ rights. Indeed, polling shows that the strongest opposition in this island to minimum service levels comes from people in Scotland. So when Ministers say that this legislation is what the people want, I am not so sure that that is true south of the border, but it certainly is not true in Scotland. That is just one reason why we will vote against the regulations this evening.

[John Spellar]

rose—

[John McDonnell (Hayes and Harlington) (Lab)]

rose—

--- Later in debate ---

[The Chair]

Either one—you are both charming. [Laughter.]

[John Spellar]

No one has ever said that about me before.

--- Later in debate ---

[John Spellar]

I thoroughly agree with my right hon. Friend the Member for Hayes and Harlington—people do not hear that very often.

I may be being a bit unfair to the Minister but, as colleagues have indicated, there is a question as to whether his heart is in this, or whether it has been dreamed up by political pointy-heads in No. 10 who think they can run the next election on “Who runs the country?” I merely caution the Minister that the historical precedents for that are not encouraging. That is exactly what Ted Heath did in 1974, to which the response of the Great British public was, “Not you, mate.” These things can blow up, and what are thought of as weapons turn out to be boomerangs.

My right hon. Friend rightly identified one of the core problems, but the other is the way in which the railways were privatised. I am not getting into the argument about whether they should have been privatised, although, interestingly enough, Margaret Thatcher did not privatise rail, for the very good reason of all the practical complexities that it would entail. The creation of separate companies meant that negotiations dealt with one company after another and that, in fact, rail workers’ wages went up significantly. The Government seem to be trying to deal with that by sitting behind the negotiators—not at the table, but behind the curtain—and putting the arm up the back of the rail companies, preventing them from reaching an agreement that, as I understand it, they would not be averse to. The Government seem to want the dispute to go on, possibly for political reasons, even though they have settled in other parts of the economy. This measure would actually bring the Government right into the negotiations. Why not do things in the sensible way, by being part of the negotiations to try to reach a settlement, especially given that, as was mentioned, the industrial action seems to be largely receding?

I come back to the question I posed to the Minister: how does he think this will work? Even during the second world war, with the Defence of the Realm Act 1914, order 1305, all the powers and a national emergency, the Government could not to prevent strikes from taking place. When there were strikes in the mines, it was rightly said that we could not dig coal with bayonets. That does not mean that we should not try to resolve the strikes or that we should give in to every strike, but the blunt instrument of legislation has proved ineffective time and again, partly because of the ingenuity of the members, who will find ways around it, and partly because it starts to run up against the public’s concept of fair play. We saw that with the Pentonville five and the docks dispute, for example. I come back to my question, and I hope the Minister has had a note to tell him how this legislation will work—he can even intervene if he wants. What mechanism is the trade union supposed to use to ensure that enough workers attend to get to the 40% service? Is it expected to expel members, who will then go off and form an independent union? We would then have more multi-union competition going on.

The Minister will be pleased to know that, because I have a bad cold and my voice is giving out, I am about to conclude. The final point I will make is that the Government put a lot of weight in their relationship with the United States, including the possibility of a transatlantic trade deal. Given that this is the most pro-union Administration since Franklin Roosevelt’s, if the Government think that introducing anti-union legislation will in any way endear them to the US Congress and the White House, they have another thing coming.