Strikes (Minimum Service Levels: NHS Ambulance Services and the NHS Patient Transport Service) Regulations 2023

Lord Allan of Hallam Excerpts

Wednesday 6th December 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, in speaking after the noble Baroness, Lady Merron, I must respectfully disagree with and indeed correct her on one point. I do not now accept that your Lordships’ House does not have the responsibility, in exceptional circumstances that I have set out before, to act to stop statutory instruments that should not go through. However, your Lordships will be pleased to know that I will not rehearse all the arguments I referenced in my earlier speech.

I also correct the noble Baroness on her suggestion that there has to be a Labour Government to protect the rights of working people. We have to get rid of the Conservative Government, but other options are available. The see-saw of politics that we have had for the past century has not served this country well, and its people are increasingly aware of that fact.

I am aware of the desire to move quickly to a vote, so I will be brief, but I will pick up a point from the Minister. Again, it is important in this debate to reference the briefing from the Royal College of Nursing, which stresses that the regulations seek to make trade unions responsible for breaking their own strikes. As the Royal College of Nursing makes clear, the Government had claimed this is not about nurses, but there are nurses working for the services that we are now talking about. It seems so long ago that we were all standing on doorsteps clapping, cheering and banging pots for our nurses and other medical workers who were putting their lives on the line. Look where we are now.

The RCN briefing also makes the important point, as the Joint Committee on Human Rights noted, that the minimum service level requirements may impact more severely on certain protected groups—most obviously women in respect of nursing. This is a gendered attack on the freedom of members of the RCN. As the RCN says, and as others have said before, this whole approach makes strikes more likely, not less likely.

In a recent survey of RCN members, 83% of nursing staff said that the staffing levels on their most recent shift were not sufficient to meet the needs of patients safely and effectively. I, and I think all medical workers, strongly believe in minimum service levels. We need to have them every day, and the Government have not created a situation in which that is possible.

For the avoidance of doubt—we want to move on to other votes—I am not planning to divide the House on this but, in the meantime, to allow the debate, I beg to move.

[Lord Allan of Hallam (LD)]

My Lords, it is good that this instrument applies only to ambulance trusts in England. That is the last time I will use the word “good” in association with this statutory instrument, but it certainly reflects a lot of feedback, particularly by the noble and learned Lord, Lord Thomas of Cwmgiedd, and others, that we had during the debate on the primary legislation, when we felt we had to remind the Government that the health service is devolved and that it was inappropriate to seek to interfere too far. It was interesting to hear the Minister say that the Government have made an offer of assistance to the Governments in Wales and Scotland in respect of giving them these wonderful minimum service levels. I would love to be a fly on the wall for those conversations, which I am sure are very short.

I turn to the substance of the requirements. The people running local health services are like watchmakers looking after very complex mechanisms with many different moving parts. From time to time, we work with those professionals on health and care legislation that provides tools for them to tune and improve their services. What is before us today is not such an instrument but rather reflects that the Government have decided unilaterally to give local health authority managers a hammer, because that is what the Government think they need. Yet the feedback we have had from all those who work in the National Health Service, as cited by the noble Baroness, Lady Merron, is that they clearly believe that this is the wrong tool for the job. Given that feedback, it seems quite likely that many trusts will choose not to use the powers to issue work notices. If that is the case, perhaps little harm will ultimately have been done other than wasting parliamentary time on creating the law and the regulations.

But there is a worrying scenario, which we explored during the legislative process, that was not sufficiently addressed—where trusts that do not want to issue work notices nevertheless feel compelled to use them for legal reasons. I would like the Minister to come back to this today and provide some more compelling assurances. If an ambulance trust, after the passing of these regulations, wishes not to use this mechanism but instead to negotiate voluntary agreements, as the Minister said that he would like them to do, will it truly be free to make that choice? If politicians want to urge trusts to use the hammer of work notices that they have given them, that is one thing. They can deal with the political pressure. But if, by declining to use these notices, they will expose themselves to new legal risks, that is much more problematic. Trusts may then feel that they have to use the hammer, even where they believe it will cause more damage, because they cannot risk being sued for not doing so. Can the Minister give a clear guarantee that his department has looked into this thoroughly and determined that trusts will continue to be able to use their best judgment on what will cause least harm to the communities they serve?

Where a trust has exercised its judgment not to issue work notices and things go wrong, as inevitably may happen from time to time, for a variety of reasons, we need to know that the trust will not face action either from the department or from any other third party. Absent that assurance, the safe option may be to issue the work notices, for the trust to take the hammer to the watch, whether or not it thinks it is a good idea. This is the crucial point. If we are to believe the Minister’s reassuring words, that this will still create the scope for trusts to negotiate voluntary agreements and they will not have to issue these work notices, we need to know that the department has looked at this and can give us that kind of copper-bottomed guarantee, rather than simply saying it will not be a problem.

[Lord Woodley (Lab)]

My Lords, I declare an interest as a former leader of Unite the Union, which represents ambulance workers and other NHS staff up and down our country. My noble friend Lady Merron has powerfully laid out the arguments against the draconian regulations we are considering today. I will emphasise three points in the short time that I have now.

First, these regulations are entirely unnecessary. Trade unions already agree life and limb cover during strike action—noble Lords know that. These arrangements work well, giving confidence and flexibility if workers are needed to leave the picket line to respond to emergencies. We have always done that. Central to the NHS disputes over the past year are the unsafe staffing levels due to poor pay and retention. Why are the Government so keen on minimum staffing levels on strike days but do not care what happens when staff are not striking?

Secondly, these regulations will simply poison industrial relations between employers and workers, as all the impact assessments have shown us. When you deprive somebody of their ability to strike after a ballot, how can you be surprised when this causes widespread anger and resentment? Without being able to take effective strike action, workers will of course seek new ways to put pressure on employers, including work to rule and overtime bans. With all good faith gone, disputes will drag on and become even more bitter. Forcing workers to cross their own picket lines, with unions made to take so-called reasonable steps to enforce this, is undoubtedly a recipe for disaster. Mark my words: when the first worker is sacked for refusing to cross their picket line, there will be a major escalation of industrial action. Is that what the Government really want?

Finally, these measures are just the latest in a long line of union-busting legislation from this Government. It is a disgrace that they continue to attack workers’ rights when they promised an employment Bill to make Britain the best place to work in Europe. Instead, they are trying again to repeal the ban on using agency staff to break strikes, despite the High Court ruling that said it was unfair, unlawful and irrational.

In this place, we are privileged to be able to hold the Government to account and to help protect people from greed and exploitation. I urge noble Lords to stand up for the hard-pressed workers of this country, already suffering from a cost of living catastrophe not of their making, and to vote down these vindictive, destructive and, above all, counterproductive measures.