Strikes (Minimum Service Levels) Bill

Lord Bishop of London Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

[The Lord Bishop of London]

My Lords, I rise to speak to this group of amendments on the inclusion of health services in the Bill. I am sorry that I have not been able to speak before. I declare my interests as set out in the register.

I have been a union member. I joined as a nurse—and as an NHS manager and a civil servant in the Department of Health—because I wanted protection. The relationship with unions was critical; it was the way in which we improved patient care. One of my overall concerns about the Bill is that it has the potential to break down the relationship which is so vital for patient care, as the noble Baroness, Lady Noakes, said.

I am grateful to the Royal College of Nursing, which has helped me in considering the Bill. I am sure that it will not surprise noble Lords to know that it does not support the Bill, for what I see as some good reasons: not least because it curtails the freedom to participate in what otherwise is lawful action.

My right reverend friend the Bishop of Manchester regrets that he cannot be here, but he shares my concern that far too much power is given to the Secretary of State in what we have already heard is only a skeleton Bill, and that there is a complete lack of clarity about how it could be used. It is open to abuse. I am surprised that, as many others have said, the detailed policy that becomes legislation is not there. I am concerned that those who work in the health service probably cannot see whether they are in there or not.

I support the noble Lord, Lord Allan, and the noble Baroness, Lady Chakrabarti, regarding the definition of health services. It is such a wide definition that leaves it to the imagination whether you are covered by it or not. I do not believe that this is for the professional groups, but for the individual. I am also very conscious that we have talked a lot about trade unions, but the health service is about individual nurses, doctors, health visitors and midwives who seek to do their best for patients. One of my great concerns is that the Bill could lead to the sacking of staff for taking what otherwise would be seen as lawful strike action. They are the nurses, midwives and doctors whom we can ill afford to lose.

As has already been said, the reality is that those who work in the NHS do not take strike action easily. They choose to do it only because they are frustrated that their voices are not being heard when they express their concerns about patient standards, workforce levels, recruitment and retention, and the role that fair pay plays in this. In September, the Nuffield Trust reported that 40,000 nurses left the profession last year, and we are still waiting to see the arrival of the workforce plan. Meanwhile, healthcare workers are spread more thinly, at the expense of their mental health and well-being.

It is amazing that the legislation talks about minimum service levels, yet this Government resist setting minimum standards for nursing and other health professions. If we want to ensure standards of patient care throughout the 365 days of the year, the focus should be not on banning strikes but on getting in place minimum staffing levels to ensure that quality patient care is given. For the Government to fire anyone using strike action when they try to raise a concern about the conditions set by the Government is ridiculous and undermines the dedication of staff in the NHS.

I have a question. Rather than passing the Bill, should the Government not be spending more time listening to and addressing the concerns of healthcare staff, to hear the solutions they believe they have to ensure that patients get the care that they require?

Finally, the other concern that has been raised is around trust and staff morale. The reason staff in the health service are striking partly relates to morale, and also to trust. I am concerned that the Bill will undermine the trust that is there and further undermine morale. We saw something of that trust undermined when this Government were seeking for healthcare professionals to be double-vaccinated against Covid. Although I am a great supporter of vaccination, we were heading for disaster. I am concerned that the Bill undermines trust and morale. What risk assessment has been made of the effect of passing this Bill on staffing levels of the NHS in particular?

[Lord Hendy (Lab)]

My Lords, I have the honour to serve on your Lordships’ Delegated Powers and Regulatory Reform Committee. As noble Lords will know, in our 27th report we dealt with this particular Bill.

There is an issue which arises in relation to these two amendments. I would like to read to your Lordships just three paragraphs from our report. Paragraph 17 says that

“the Government are ‘of the view that the detail required to set the level of service for each relevant service is not appropriate for primary legislation’. But the Memorandum does not explain why setting out any detail on the face of the Bill would be inappropriate. Parliament is not allergic to matters of detail, particularly where it relates to an important matter such as the right to strike.”

Paragraph 19 says:

“The Government have chosen to put no detail in the Bill in relation to minimum service levels, leaving the matter entirely to regulations. Important matters of detail should be included on the face of the Bill, perhaps with a power to supplement those matters in regulations.”


At paragraph 23, in conclusion on this aspect—there are other aspects to be dealt with—we say:

“Given the absence of an exhaustive or non-exhaustive list in the Bill of the matters that can be included in regulations, the unconvincing reasons for this power in the Memorandum, and the absence of indicative draft regulations illustrating how the power might be exercised, the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels in new section 234B(1) of the 1992 Act is likely to be exercised. In the absence of a satisfactory explanation, we regard the power as inappropriate.”


I looked at the consultation paper that emerged in relation to health services, which has already been remarked upon. It is confined simply to the ambulance service. I looked to see what the criteria for setting minimum service levels might be. I can see that, right at the end, there is half a page suggesting to consultees that they might wish to specify category 1 and/or category 2, and that in respect of one service they might be favourable to a percentage of the ambulance service being carried out. But there is nothing, as far as I can see—the Minister will correct me if I am wrong—to indicate what the metrics are. What are the factors to be taken into account in setting minimum service levels?

This is not just for the ambulance service. As has already been remarked, in Amendment 4, my noble friends set out a whole list of potential categories of worker in the health service—and very diverse it is too. What is it that the Government have got in mind to formulate the way in which the minimum service levels will be articulated in respect of each of these trades, professions and subcategories of worker? That is my question to the noble Lord.

--- Later in debate ---

[Baroness Watkins of Tavistock (CB)]

My Lords, I support the amendment in the names of my noble friends Lord Patel and Lord Kakkar, and I agree with everything they said. I return to the issue of life and limb. We need to recognise that we have people in hospitals and care homes who, if they did not receive compassionate care, would be left in unclean beds, would not be fed and would not receive what we think of as ordinary, everyday care. Therefore, the whole issue of what minimum levels should be needs to be thought about really carefully. It needs to be thought about outside the opportunities of strikes and in terms of ordinary, everyday care.

I am worried that, without the amendment proposed, it is possible that we would have safer, or better, care on strike days than on non-strike days. I am also worried that, unless we tackle the workforce shortage, which has driven staff to their current level of discontent in health and care, we will continue to have problems. This is not just about people striking for an increase in salary; it is about people’s real concern about being unable to deliver the service they wish to deliver.

[The Lord Bishop of London]

My Lords, I shall speak to Amendment 18 in the names of the noble Lords, Lord Patel and Lord Kakkar, and add my voice to many of the points already raised. I thank the Minister for being much more specific around health. I hope that we can define it much more clearly, rather than having that very broad category, as well as the issue around life and limb.

I remind the Government that, in this Chamber, they have resisted introducing legislation for minimum staffing levels on a number of occasions. It seems incredible that they now want to put in levels of minimum service, which clearly require minimum staffing levels, but are willing to do it only on strike days.

As I indicated earlier, this amendment goes to the heart of one of the key issues with the Bill; namely, that people in the health service who strike do so partly because safe staffing levels are not in place on non-strike days. We have already heard that the healthcare system is under huge pressure, trying to provide quality care with fewer staff, and there are workforce problems. The most recent statistic I have shows that there are 124,000 vacancies across the NHS—that is 13,000 more than this time last year. The Royal College of Nursing published a survey in May 2022 showing that only 25% of shifts have the planned number of registered nurses and 83% of respondents said that there were not enough nursing staff to meet all patient needs safely and effectively on their most recent shift.

Staff on non-strike days are thinly stretched and cannot provide the level of care that they would want to, which puts huge pressure on their health and well-being. The distress that they experience is causing an increase in illness to them. Reporting on the past year, the Healthcare Safety Investigation Branch noted that the additional pressure that staff were under was causing sickness. As a new student nurse put it, “I no longer want the career as it is. The reality feels as though I must sacrifice my own health and well-being for less than satisfactory pay.”

The notion that the Government could legislate to require minimum service levels in healthcare settings, which are already committed to safe strikes, while there is a lack of investment and workforce planning—which is the reason for the action—is unfathomable. I would welcome the Government legislating to ensure appropriate staffing levels on non-strike days that are greater than the strike day cover. That would be welcomed by nurses, because it would mean more resources and more workforce planning than the health service has seen for years. It would also resolve one of the reasons why nurses are taking strike action. I have spoken about trust, as have a number of noble Lords. Accepting this amendment would go some way towards to rebuilding the trust that has been eroded, and will be eroded further by this Bill.

Amendment 13 in the name of the noble Lord, Lord Fox, seeks to make a similar point but through a different route. Along with my right reverend friend the Bishop of Manchester, who is unable to be here, I express my support for that amendment as well.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support both the amendments. I have sat in my office all afternoon listening to this debate. At times, it was difficult to concentrate, simply because there was a degree of repetition. I do not blame noble Lords for that; I blame the Government—as usual. At least I got lots of old paperwork sorted, which was real progress for me.

Despite trade unions sounding the alarm on unsafe levels of staffing in public services such as hospitals for quite some time, the Government refuse to implement legislation ensuring safe levels of staffing on any day other than a day when workers have chosen to withhold their labour by going on strike.

These amendments lay bare the ridiculousness of the Bill. Under this legislation, the Government will force workers to go to work against their will, with the perverse outcome being that strike days could see services with a higher number of staff than on non-strike days. It sounds like slavery to me. Is it not slavery when you force people to work against their will?

The Government propose that this is done by employers writing out a list of names of workers who must turn up and work on a strike day. Unlike on a normal work rota, workers will not be allowed to call in sick, take parental leave, take bereavement leave or even be in hospital having had a major condition of some sort. This legislation drags the workers in and forces them into a temporary state of servitude. That goes against every single principle of common law, contract law and employment rights in this country.

I have a cunning plan which would save the Government on this issue; it would just need a few tweaks in the Bill. If the Government want to make it illegal to go below minimum staffing levels in hospitals and the ambulance service, why do we not do that 24/7 and 365 days a year but, instead of the unions getting fined, we fine the CEOs and Government Ministers? That way, if you want someone to be responsible for old people waiting eight hours for an ambulance, you put the legal responsibility on the people at the top, not at the bottom. This seems eminently sensible and much more practical. Let us have laws that apply to the people in charge rather than target the overstretched staff on the front line, who are struggling for better pay and conditions. The Government will not be able to deliver either my idea or the Bill as it stands. In fact, this Government is too incompetent to deliver a pizza, so why should they be able to deliver a Bill such as this one?

If the next Government have any sort of involvement with the Green Party, they should know that we have committed to repealing this legislation and all other anti-trade union legislation passed since the Thatcher Government—that will be quite an exercise. We can create safe, well-run public services by working together with workers and unions, not by using authoritarian laws to strong-arm them into the workplace no matter how badly their working conditions get. I hope that the Government see sense on this, but I can tell from the looks of noble Lords on the Front Bench that it is not going to work.