Strikes (Minimum Service Levels) Bill

Debate between Lord Allan of Hallam and Baroness Chakrabarti

Committee stage
Thursday 23rd March 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, throughout the passage of the Bill, the Government have repeatedly said that we are talking about last-resort measures that they are reluctant to, and hope they will not have to, introduce. In this group, we will test the extent to which they genuinely see these as last-resort measures.

Collectively, the amendments could be described as seeking to introduce additional elements of friction, before the Government move to regulating for these minimum service levels. Friction can be a useful thing in the right places: if I wish to enter my own house, I would like that to be as frictionless as possible, but if the police would like to enter it to carry out a search, I would like there to be a reasonable level of friction, with them having to prove why they have the ability or need to do that, and to go before a court to have their need tested in front of others. So, here, we are trying to put those kinds of friction in place so that Ministers do not do what we fear: rush to regulate in the heat of action in the same way that they have rushed to bring this legislation before us in the first place.

Amendment 15 in my name uses two concepts that are familiar to those who work with human rights legislation—the notions of necessity and proportionality. I am not practised in public human rights law, so I will defer to the noble Broness, Lady Chakrabarti, who I am sure will have things to say on this group of amendments. However, I have had to make decisions on freedom of expression and surveillance questions on online platforms where these tests are useful and applied because they seek to balance different rights that we have. It has been generally accepted in our debates that we are talking about fundamental human rights here—the right of an individual to withdraw their labour. When considering whether the Government in the public interest can override that right, these necessity and proportionality tests are the right ones, just as they are in other contexts such as freedom of expression and surveillance.

I am sure that the Government in their response will refer to the human rights certification that is on the front page of every piece of legislation and say that it is an implicit commitment. Of course, no British Government could ever not apply tests of necessity and proportionality because they have signed off the legislation as compliant. However, there are significant advantages to making these tests explicit in this section of the Bill.

The amendment would force the Minister to consider the tests and to apply them explicitly before making regulations, and to publish their deliberations for scrutiny. In practice, this would mean that the Minister would have to ask the team that is putting together the case for the regulations to show its workings; this would have significant value if those workings were available to all of us. That is not least of defensive value for the Government, because at some point they will have to explain why they felt compelled to make the regulations and why they passed the threshold.

I look first at the necessity test. The Minister would need to be satisfied that all other avenues had been tried, which in this case largely means negotiated agreements to provide cover. The risk with the Bill as it stands is that Ministers will be satisfied with vague assurances. They will ask, “Did you ask for voluntary cover?” “Yes, Minister, we did.” “Did they agree?” “No, Minister, they didn’t.” “Okay, let’s move to a regulation.” The test may be no more than that and, indeed, in the letter that has just arrived from the noble Lord, Lord Markham, which we are now considering, one senses an element of that with the Government’s argument around ambulance services: “We asked; we didn’t get one and we therefore now need this piece of legislation.” That is not good enough and, if this is truly a last resort power, we want the Minister to press for all avenues to have been explored including the potential offer of carrots to the workforce for agreeing to provide minimum services, as has happened in many other countries. We debated that at length on the first day of Committee. It is not simply a question of employers ordering their workforces to provide minimum service levels; in many institutions there is a negotiated agreement whereby something is offered to the workforce in return for providing minimum service levels. What we do not want is a necessity test that bypasses and ignores that option altogether. By putting that explicitly in the Bill, the Minister would have to be satisfied that all reasonable steps had been taken and there was no other way in which to guarantee minimum service levels. That is the right necessity test when one is overriding somebody’s fundamental rights, as we have all agreed is happening in this case.

I turn now to the proportionality test. It is included to make sure the provision is done properly. There is a risk of a superficial version of this test—one which is effectively a cost-benefit analysis. We have seen this again in the context of the ambulance debate. The Government will argue that the benefits of having life-saving ambulance cover outweigh the cost of some workers not being able to strike. At that superficial level that sounds reasonable, but it is not a true proportionality test. To do that properly we need to dig into the next level, where we look at the likely actual impacts. There are two areas where the proportionality test might be more complex. First, if there is any likelihood that workers could end up being dismissed—as we have accepted is a potential outcome of this legislation—in this case the costs are dramatically different and that equation would change. Providing emergency cover versus dismissal of workers is a different test from emergency cover versus simply losing the right to strike.

Secondly, if the regulations did not result in more people showing up for work—for example, because people take other forms of industrial action, which they are entitled to do; there are all sorts for ways in which the climate could be poisoned to such an extent that one ends up with fewer people at work than one would have done absent the regulation—the benefits would not have been realised and the proportionality, the cost-benefit equation, changes. This amendment therefore proposes the kind of proportionality test that I hope the Minister would apply by rigorously looking at all the costs and benefits, and is then prepared to publish and defend that analysis rather than making simplistic assumptions. The amendment simply seeks to introduce that rigour with publication to make sure that it happens.

Other amendments in the group will add other forms of beneficial friction and I will leave it to their proponents to argue for them, but I hope that I have made a reasonable case for the Government to accept the additional clarity offered by Amendment 15. I beg to move.

[Baroness Chakrabarti (Lab)]

I speak in support of every amendment in this group, even at the risk of offending the noble Baroness, Lady Noakes. At first blush, her Amendment 17 enhances my noble friends’ amendment and does no mischief to it whatever because. by including the impact of the legislation on service users in the list of other groups of people affected, she has, perhaps inadvertently, introduced an element of proportionality into the assessment of the legislation. I completely agree with the noble Lord, Lord Allan of Hallam. I perhaps would not have chosen his friction metaphor because it is the legislation itself that is introducing friction into what ought to be partnership industrial relations. This group may not be Henry VIII on stilts, but it is Henry VIII revisited. What every amendment in the group at least purports to do is to introduce an element of transparency into the process before the Secretary of State inflicts these regulations on the public or on Parliament.

I want to be clear, as I have been in the past, that the Bill is not desirable or necessary but if such minimum service level agreements were in a particular instance desirable, necessary and proportionate to comply with convention rights, as the noble Lord, Lord Allan, rightly pointed out, it would be for a number of reasons better for everyone—including Ministers—to do this by way of purpose-specific primary legislation. In a moment where it was truly necessary to impose these agreements because they could not be reasonably negotiated, it would be better for legal advocacy to do this by way of purpose-specific primary legislation. Why? Because it would be purpose-specific and because any court subsequently considering the necessity, proportionality and compliance with the law of the measure would give greater deference to the scrutiny and process undertaken in both Houses of Parliament in the context of a Bill rather than regulations.