Strikes (Minimum Service Levels) Bill

Debate between Lord Allan of Hallam and Lord Balfe

Report stage
Wednesday 26th April 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, I support the amendment in the name of the noble and learned Lord, Lord Thomas, to which I have added my name. A benefit of the Committee stage in this House is that it allows us to identify concerns that may not have been apparent when a Bill was first introduced. It is through that process of analysing how legislation will work in practice, informed by the experiences that noble Lords bring to this place, that we can flush out those unintended consequences. On a good day, the House having flagged something that is a reasonable area of concern, the Government will provide us with clarifications that show that our fears are misplaced and that all will be well. On a really good day, a Minister will acknowledge that we have identified a genuine problem and set out a path to fix it. We have just had an example of that on the previous amendment.

I believe we have done our job and identified a real gap here between the Government’s rhetoric that employers will not be mandated to issue work notices and what may happen in practice, yet the Government have so far failed to provide either a clarification that our concerns are unfounded or an acknowledgement that we have identified a real issue that they intend to fix before the Bill becomes law. In this amendment we are presenting a way to demonstrate the kind of fix that we think is needed, not to undermine the Government’s intentions in respect of the legislation writ large, but rather to ensure that it works as they themselves have said they wish to happen.

My concern is quite specific. It is that employers will be advised that they expose themselves to significant legal risk if they do not issue work notices, even where they feel that they would be counterproductive to their efforts to negotiate with their employees. The circumstances under which they may feel this compulsion are not fantastical but all too apparent if we look at broader trends in litigation. We do not have to stretch our imagination too far to see somebody suing an NHS body that chose not to issue work orders, alleging that their treatment could have been delivered if it had; a student taking action against an educational institution on the basis that it did not order teaching staff to turn up during strike days; or businesses suffering disruption as a result of transport strikes going after train operators, claiming that more service could have been provided.

Some noble Lords may have sympathy with this approach and think, “Good; if employers feel compelled to issue work orders, the Bill is working”, but the Government have said repeatedly that the work order should be voluntary and that this is not what they intend. If they wish to make work orders compulsory, they should have the honesty to say that in the Bill. They would be de facto mandated because of the threat of litigation, and if the Government do not wish that to happen, they should agree to our amendment to make that clear to employers.

It seems far from ideal to leave this confused, with the extent of compulsion in practice decided on the basis of an assessment of the threat of legal action. I fear that the Government will argue, as the noble and learned Lord, Lord Thomas, has already indicated, that this is an acceptable state of affairs and that they do not intend to change the legislation, but I hope that noble Lords will see the force of our arguments and will support Amendment 3.

[Lord Balfe (Con)]

My Lords, many people in this House will know that I have a firm belief that the best industrial relations are conducted by two parties that are trying to achieve objectives in common and are not clashing with each other. This amendment basically helps that to happen because it says that an employer will not be under an obligation to give a work notice if it does not want to. Surely the reason it would not want to is because it would worsen the industrial relations within the company or body concerned. That cannot possibly be a good objective to pursue.