Strikes (Minimum Service Levels) Bill

Lord Callanan Excerpts

Report stage
Wednesday 26th April 2023 Lords Chamber

As the noble Lord said, this amendment seeks not to prolong, delay or frustrate but to ensure that Parliament has proper oversight and that there is proper consultation with all those involved before the statutory legislation and the statutory instruments are laid. I support the amendment.

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, I apologise for keeping the House waiting for the start of the debate; the previous business finished much earlier than everyone expected.

I am grateful to those who have contributed to this debate, although clearly we have repeated a lot of what was discussed in previous debates. The House will be unsurprised to hear that my position is similar to what it was in Committee. As I did then, I resist this amendment relating to consultation requirements, parliamentary scrutiny and assessment of impacts of the legislation.

As I made clear in Committee, it is my firm view that sufficient checks and balances are already built into the legislation before regulations can be made. This includes the need to carry out consultations—indeed, we are undergoing consultations at the moment on some draft regulations—which, of course, relevant parliamentary committees are able to and almost certainly will contribute to, as well as the requirement that regulations must be approved by both Houses before they can be made. Impact assessments will also be published for all subsequent regulations on minimum service levels.

Key stakeholders, including employers, employees, members of the public, trade unions and their members are all encouraged to participate in the consultations—some of which, as I said, are live even now—and have their say in the setting of the appropriate minimum service levels, and all that will happen before the minimum service levels come into effect, and only then if they have been approved by Parliament.

I am therefore of the view that this approach is both appropriate and in line with the normal way in which secondary legislation is made. As such, the Government believe that the amendment adds unnecessary duplication into the process, and therefore I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Fox (LD)]

My Lords, I thank both noble Lords for their support for this amendment. The Minister is right that much of this debate has been had before in Committee. He is also right when he describes this as the normal way. I am afraid it has become the normal way that this Government operate to shunt as much power as possible to the Secretary of State and marginalise Parliament as often and as broadly as they can. This is a highly skeletal Bill—it is almost impossible to get one that is smaller. For that reason, I would like to test the will of the House.

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Moved by

[Lord Callanan]

2: The Schedule, page 4, line 23, leave out from “to” to end of line 24 and insert—
“(a) whether the person is or is not a member of a trade union,(b) whether the person has or has not—(i) taken part in the activities of a trade union, or(ii) made use of services made available to the person by a trade union by virtue of the person’s membership of the union, or(c) whether or not—(i) a matter has been raised on the person’s behalf (with or without the person’s consent), or(ii) the person has consented to the raising of a matter on the person’s behalf,by a trade union of which the person is a member.(6A) In subsection (6) “a trade union” includes—(a) a particular trade union, and(b) a particular branch or section of a particular trade union.”Member’s explanatory statement
This amendment provides for additional matters that an employer must not have regard to in deciding whether to identify a person in a work notice.

[Lord Callanan (Con)]

My Lords, I beg to move Amendment 2 in my name. The House will know that the Government were clear at the introduction of the Bill that employers must not have regard to a person’s trade union status when producing a work notice. Employers should identify the workers who are best placed and most appropriate for each role, so that that minimum service level can be achieved. In our view, a person’s trade union status has no place in this process.

I thank the Joint Committee on Human Rights for its report on the Bill and for its feedback, as well as feedback from the debates in Committee on protections from trade union discrimination in relation to work notices—including from the noble Lord, Lord Hendy, who was particularly vocal on this point. I hope the noble Lord will agree that this amendment addresses his concerns in full.

Through this amendment, employers must not have regard to whether a person has or has not taken part in trade union activities, made use of their services or had issues raised by a trade union on their behalf. Employers must also not have regard to whether a person is part of a particular trade union or a particular branch or section of a trade union. This also ensures a greater level of consistency with existing sections within the Trade Union and Labour Relations (Consolidation) Act 1992, such as Sections 146 and 152.

As I said in Committee, the activity or services that a trade union member may have been involved in are connected to whether they are a trade union member, and therefore, even under the clause as it stood, an employer must not have regard to such matters when producing a work notice. While I still believe this to be true, I hope that the amendment provides further reassurance to the House, in addition to trade unions and workers, putting the issue of trade union discrimination in relation to work notices beyond doubt. I beg to move.

[Lord Fox (LD)]

My Lords, very briefly, it is appreciated that the Minister has done this and that the Government have understood that there was ambiguity. In a sense, it is a shame that the Minister has not taken all our advice, but we thank the Government for taking this particular piece.

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[Lord Hendy (Lab)]

My Lords, it would be churlish not to acknowledge that we appreciate what this amendment will do.

[Lord Callanan (Con)]

My Lords, noble Lords have broadly welcomed this and clearly want to move on to another section, so I do not think I have any points to raise in response.

Amendment 2 agreed.

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I ask the Minister to think very carefully about the long-term consequences of this way of approaching industrial relations. It is not sound.

[Lord Callanan (Con)]

My Lords, I thank the noble and learned Lord, Lord Thomas, for his constructive engagement on this matter. He wrote to us about it and has had a reply, so he knows the Government’s position. We believe that the current drafting of the legislation strikes the right balance so that, while employers have the statutory discretion to issue a work notice, they also have to consider any other existing legal duties that they may have—for instance, contractual, tort or public law duties. My concern is that the amendment would enable employers to act without due consideration to such duties, as it effectively seeks to remove any legal consequences for not issuing a work notice.

The decision to issue a work notice should be objective but, despite what the noble Lord, Lord Allan, and the noble and learned Lord, Lord Thomas, have said, the amendment would then enable subjective, and potentially political, factors to influence that decision.

It would be likely—and I suspect this is the intention of the movers—to lead to many fewer work notices being given where they were needed, leading to minimum service levels not being met in more cases, but the reason for this legislation is that the Government do not believe that is in the best interests of service users or the public. I therefore maintain the position that I took in Committee and resist the amendment on that basis. I hope the noble and learned Lord will withdraw it.

[Lord Thomas of Cwmgiedd (CB)]

It is disappointing that the Government will not put in the Bill what the position is. The word “may” is too ambiguous. I am afraid we may be back to the kind of thing that happened 50 years ago, as we are seeing a large number of disputes go to a successor—the ordinary courts, this time—to the National Industrial Relations Court, and that was not a happy outcome for anyone. But the Government have taken their stand. I do not wish to press this to a Division and I therefore beg leave to withdraw the amendment.

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If the union is found not to have taken a reasonable step, as my noble friend Lord Collins spelled out, the consequences are that the strike will be unlawful and anybody participating in it will have no protection at all against unfair dismissal. The union will be exposed to a claim for damages; if it does not comply with the injunction or payment of damages, it will be at risk of proceedings for contempt of court. New Section 234E is wholly objectionable and I hope that all Members of the House will join me in opposing it.

[Lord Callanan (Con)]

My Lords, I thank all noble Lords who have taken part in this debate. Before I address the terms of the amendments, I will first address the frankly ridiculous exaggerations from the noble Baroness, Lady O’Grady, and the noble Lord, Lord Woodley, that the UK is some kind of international parasite or outlier in considering this legislation—

[Baroness Chakrabarti (Lab)]

They said “pariah”.

[Lord Callanan (Con)]

My apologies—I thank the noble Baroness. I meant “pariah”. In terms of being an international outlier, many other countries have minimum service levels. I will give the House some examples. In the USA, ambulance workers are in most circumstances prohibited from taking any action; it is the same in Australia; in Canada, there is variation by province; Spain and France have statutory minimum service levels in ambulance services; Belgium has statutory MSLs. All these requirements are laid down in law.

In the USA, Australia and Canada, for fire services action is prohibited completely by law. Nobody in the UK is suggesting that we go that far. I accept that noble Lords opposite will not mind the example of the USA, but, last time I looked, Australia and Canada both had centre-left Governments. Yet they ban strike action completely in fire services. So the UK is not an international outlier in considering these MSLs. Spain, France and Belgium have statutory MSLs in fire services. I have no idea who is in government in Belgium at the moment—there is normally some sort of 20-party coalition—but nevertheless these are not hard-right Governments with complete freedom of action against workers. It is not unusual in international terms to consider MSLs.

[Lord Reid of Cardowan (Lab)]

I thank the Minister for answering an allegation that was not made by my noble friend. His point was that we were an outlier or pariah not because we had minimum service levels but because we were the only country with minimum service levels that was applying the sorts of terms and conditions that are objected to in the proposed amendments. That is quite a different thing from the argument about minimum service levels.

[Lord Callanan (Con)]

I do not think it is a different thing at all. If action is prohibited completely, as it is in the three countries I mentioned—let us take, for example, fire services—there is no provision for workers to take any strike action at all. If they do so, they are in breach of their contracts—presumably they can be dismissed, in those countries. I think the comparison is completely valid.

I turn to the amendments. To achieve a minimum service level, employers, employees and trade unions all have a part to play, in our view, and the Bill makes it clear what those respective roles are. The amendments in this group would remove key parts of the legislation, which we believe are necessary to make it effective, and I suspect that is the aim of those who tabled them. As such, I take the same position as I did in Committee and resist these amendments.

Amendment 4 seeks to remove the consequences for an employee who participates in strike action while being identified in a work notice. The approach taken is both fair and proportionate. It enables employers to manage instances of non-compliance with a work notice in exactly the same way that they would manage any other unauthorised absence. I repeat the point for the benefit of the noble Lord, Lord Collins: this is not about sacking workers, nurses or anyone else. An employee loses their automatic protection from unfair dismissal for industrial action if they participated in a strike contrary to a work notice, as indeed they would lose their unfair dismissal rights if they participated in any other form of strike action that was not in accordance with the law, just as failing to attend work without a valid reason does not necessarily mean that they will be dismissed. It simply enables employers to pursue disciplinary action if they believe it is appropriate, but it is ultimately at their discretion whether or not to do so.

Amendment 4 also provides that individuals identified in a work notice are not subject to the work notice unless they have been given a copy of it, and the employer must prove that the individual has received it. However, under the current drafting, employees lose their automatic unfair dismissal protection for going on strike in contravention of a work notice only if the employer notifies them that they are required to work under a work notice and of the work that they must carry out. I believe that this additional requirement is both unnecessary and duplicative; it could also be inappropriate as workers could be given a work notice which identifies thousands of other workers.

Amendment 5 seeks to ensure that unions have no responsibility for ensuring that their members do not participate in strike action and attend work instead if they have been named on a work notice. It also ensures that there are no consequences for failing to meet that responsibility. I suspect this is an attempt to disrupt the balance between the ability to strike and the rights and freedoms of others to go about their lawful business, which is ultimately at the heart of the Bill.

If employees are not incentivised to attend work on a strike day when they have been identified on work notice, or if a trade union has no responsibility to ensure that its members comply, the effectiveness of this legislation will be severely undermined. I suspect noble Lords opposite know that their amendments will do exactly that, and I am sure it is therefore no surprise to them that I cannot support them on this occasion. Given the direct disruption that these amendments will have on the ability of the public to go about their normal, lawful business, I ask noble Lords—without too much optimism—to feel free to not press their amendments.

[Baroness O’Grady of Upper Holloway (Lab)]

I thank the Minister for that response, but Amendment 4 is about the individual freedoms, dignity and livelihoods of workers. I therefore wish to test the opinion of the House.

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[Lord Collins of Highbury (Lab)]

My Lords, I want to make a few brief points. Of course, the noble and learned Lord is absolutely right that defining and managing service levels is a devolved matter. It is how you manage and define them. So when it comes to defining minimum service levels, who has responsibility? It is not the Government. It is actually going to be the responsibility of the devolved institutions and devolved Governments. Let me say this: this is not about devolving employment rights. Employment rights are in a single market and they are clearly defined. This is about service levels. We had debates in Committee about how to define service levels on non-strike days. The devolved Governments are going to be responsible for that, and that is the democratic accountability. That is why it is really important that we support these amendments.

[Lord Callanan (Con)]

My Lords, Amendments 6 and 7 relate, as has been said, to the devolved Governments. Amendment 6 seeks to remove the power for the Secretary of State to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd Cymru. This amendment was previously tabled in Committee, and no one will be surprised to know that the Government’s position remains unchanged.

As I have previously stated, the powers in Clause 3 can be exercised only to make amendments that are necessary to give effect to the Bill; they are therefore truly consequential. Employment rights and duties and industrial relations are reserved in respect of Scotland and Wales. It is therefore right that the Secretary of State has the power to make consequential amendments to primary legislation made by the Scottish Parliament or Senedd Cymru, if required, to ensure that the new legal framework operates in a coherent way across the whole of Great Britain. As always, the Government will engage with the devolved Governments as appropriate should consequential amendments be required to Acts of the Scottish Parliament or the Senedd Cymru.

Amendment 7, meanwhile, seeks to limit the territorial application of this Act to England. The noble Baroness, Lady Randerson, tabled a similar amendment in Committee, and the Government continue to resist this change for the same reasons that I set out then.

As has been said numerous times in this debate, once regulations for minimum service levels are in force for a specified service, if a trade union gives notice of strike action, it is then the employer’s decision whether to issue a work notice ahead of the strike, specifying the workforce required to achieve the minimum service level for that strike period. If the employer is the Scottish Government or the Welsh Senedd, it is their decision whether or not they use this legislation. Of course, we hope that all employers will want to do so where needed —as was said in relation to the amendments of the noble and learned Lord, Lord Thomas, employers must consider any contractual, public law or other legal duties that they have—but the Bill does not contain a statutory requirement to do so. No one is forcing them to use this legislation.

We will, as we have done throughout this legislation, continue to engage with the devolved Governments as part of the development of minimum service levels in those areas and the consultations that would be required that are informing these decisions. The Government have a duty to protect the lives and livelihoods of citizens across Great Britain. The disproportionate impacts that strikes can have on the public are no less severe in Scotland or Wales, and the people there have every right to expect the Government to act to ensure that they can continue to access vital public services, which they pay for, during strike action.

I hope—again, perhaps without too much optimism—that noble Lords will therefore feel able not to press their amendments.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I considered whether to press both amendments to a Division, but it seems to me that the critical one is Amendment 7. If the Act is not applicable to England, Amendment 6 is, in effect, consequential and falls away. I therefore intend to withdraw Amendment 6 but will ask to test the opinion of the House on Amendment 7.

There are two fundamental reasons for that. First, it is essential that we do not undermine devolution. The devolution Acts give the responsibility for services to the devolved Governments. If the devolved Governments fail to deliver those services, they can be booted out at the next election. That is democracy, which I had hoped this Government believed in.

Secondly, the argument that the Minister has put forward—that the Governments in Wales and Scotland are the employers and can themselves determine whether the notices should or should not be given—is misconceived. As I sought to say, they are not the employers. The employers are the trusts and the local authorities. Probably wrongly, I did not press Amendment 5, but the Government now have to bear the consequence.

If they had agreed to my amendment, the point the Minister made might be a good one—but they did not. The consequence is that it is not up to the Governments of Scotland and Wales. They will have interests and points to make, just as no doubt the UK Government will have to the English authorities. But, ultimately, it will be for the employers. Therefore, this is an outright interference in the running of services in Wales and Scotland. They are at the heart of devolution. This, if anything, proves that what this Government want to do is undermine devolution and thus weaken the union. I will therefore press Amendment 7 in due course, and in the meantime I beg leave to withdraw Amendment 6.