Industrial Action

Lord Fox Excerpts

Wednesday 11th January 2023 Lords Chamber

[Lord Lennie (Lab)]

My Lords, I begin with a statement of the blindingly obvious—that this is an issue of the Government’s own making. Yesterday the Minister kindly wrote to me to update me on the Government’s proposals to legislate for minimum service levels, or “minimum safety levels”, as the Statement said a couple of times. I wonder what it is. Is it “service level” or “safety level”, and is there a difference between the two?

In his letter, the Minister said that:

“The Government also has a duty to the public to ensure their safety, protect their access to vital public services and to help them go about their daily lives.”


We can all agree on that, but the Government are failing in that duty. In November, close to 40,000 patients waited more than 12 hours in A&E for a decision to be admitted to a hospital department, an increase of 350% over the previous November. In the last week of 2022, more than one-quarter of ambulance patients in England queued in the back of ambulances to be admitted to A&E—that is almost 19,000 people. A week ago, the president of the Royal College of Emergency Medicine said that up to 500 people a week could be dying because of delays to emergency care, the worst he has ever seen. Yesterday an emergency medic described to the Independent newspaper how he had declared a man dead on the waiting room floor in front of his wife and members of the public after he collapsed, as the hospital had run out of beds and trolleys. These are not examples of the public’s safety being ensured, of access to vital public services being protected, or of people being helped to go about their daily lives; these are examples of the Government failing in their duty.

Strikes did not cause these situations, but the Government’s failure to prevent them are making these situations even worse. That is why this is not about public safety but about the Government playing politics to try to distract from the real issues—the economic situation that they have caused and the NHS staffing shortages. Excess deaths are at their highest levels since the pandemic peak, and the public is being put at risk every day due to the NHS crisis that the Government have presided over. The Government know that their plans will not work. What assessment have they made of the effectiveness of minimum service levels to reduce the number of strikes and disruption? The impact assessment for the Transport Strikes (Minimum Service Levels) Bill stated that imposing minimum service levels could “increase … frequency of strikes”. Is this no longer the case? Does the Minister accept that firing highly skilled employees in essential public services would be counterproductive and would exacerbate the problems that already exist?

The Government have also been disingenuous in their arguments about bringing in these provisions. The letter that I received from the Minister also said, as has been repeated on a number of occasions by the Government, that

“this package of measures will see the UK align with many countries across the world such as France and Spain that already have minimum service levels in place, to prevent large swathes of their economies being ground to a halt by industrial action.”

While it is true that western European countries, including France, Spain and Italy, require some essential public services to keep a level of activity, in practice, when there are strikes, these levels are most often due to mutual agreements between employers and unions. In Italy, for instance, employers often defer to unions in deciding these levels. On the Paris transport network, levels are the result of voluntary agreements. The last two occasions when the French Government used their powers to force striking workers to return to work were 12 years apart. But most of all, those countries, with the laws that the Government are bringing in in this country to solve strikes, lose vastly more strike days than does Britain. Is that what the Government are really trying to achieve?

As well as referring to other countries, the Statement referred to the International Labour Organization, yet the ILO requires compensatory measures and an independent arbitrator, as well as saying that minimum service levels can happen only in services when

“the safety of individuals or their health is at stake”.

Yet the Bill that the Government have introduced does not contain those measures and allows regulations to be made in relation to transport, education services and the Border Force.

If the Government know that they cannot make these regulations without breaching ILO rules, what is this other than performative politics? What the Government should be doing is sitting down at the negotiating table and hashing out long-overdue deals that are needed to maintain our vital public services. Does the Minister accept that the Government’s failure to negotiate with workers is worsening, and will continue to worsen, the performance of public services, including adding to waiting times in the NHS? When will they return to the negotiating table to try to clear up the mess they have made?

[Lord Fox (LD)]

My Lords, I thank the Minister for taking questions on the Statement and congratulate the noble Lord, Lord Lennie, on his contribution. I will try to focus my questions and comments on how the Minister expects this to work.

The coming Bill is interesting because it introduces the concept of a minimum service level. Of course, in the Bill, the actual levels of service are not defined—true to form, this Government will come back with secondary legislation to do that. Can the Minister give your Lordships’ House at least an idea of what criteria will be used to come up with the minimum service levels? Will they be the same right across the country or will, for example, rural and urban areas have different minimum service levels? These are important issues.

There is, however, a wider issue around service levels. Taking yesterday as an example—when there were no strikes, as far as I am aware—can the Minister tell your Lordships’ House whether the tens of thousands of people waiting weeks to see their GP were getting a minimum service level? Were the people across Britain waiting sometimes tens of hours for ambulances getting a minimum service level? Were the people trying desperately to travel by train from Manchester to London experiencing a minimum service level? This is the baseline from which this legislation is working, and it is clearly not good enough. The public expect and deserve higher minimum standards than they are getting today, and on every day when there are no strikes.

Instead of addressing this issue, which I would define as the Government’s duty of care, the Bill passes the onus on to individual workers in these sectors. It is not the Ministers, the bosses or indeed the union leaders who will be sacked if the Government’s standards are not met; it is individual workers. I want briefly to illustrate this. If the Bill is enacted, the Secretary of State will impose a minimum service level. In the event of a strike, employers will be required to identify named employees who will be mandated to work via a work notice. At that point, these individuals are deprived of their right to strike on pain of probable dismissal. That does not square with the Secretary of State’s statement that this does not infringe the right to strike.

I know the Minister, and I am sure that, in his heart, he knows that a different approach is needed to deliver the service levels we need in this country. First, as was mentioned by the noble Lord, Lord Lennie, we need to plug the huge hole in our public sector workforce. We literally need hundreds of thousands of new people in order to deliver the basic service levels we require. A serious Government would be working with everyone in every part of these vital sectors. Can the minister tell your Lordships’ House one thing in this legislation that will help to build a bigger, better workforce in this country? Of course, a necessary first step is sorting out the pay disputes.

Turning to the NHS, the Government have absented themselves from negotiating the pay round, citing the inviolability of the pay review body. This position would have more credibility had not the Government suspended the body as recently as 2018, instead negotiating directly to deliver the 2018-21 pay agreement. What has changed since 2018 that means the Government will no longer directly negotiate with workers on this issue?

The original Bill, over the summer, targeted only rail. As we have heard from the noble Lord, Lord Lennie, the impact assessment identifies more than a dozen risks and unintended consequences—not least, I hasten to add, the proliferation of sub-strike action such as overtime bans, which would cripple the NHS and is already crippling our rail services. The current Bill steps beyond the Government’s manifesto commitment and adds five more sectors. Given the differences between the two Bills, when will the Government publish an updated impact assessment?

Finally, I am sure it is extremely frustrating running a public service in the United Kingdom, but can the Minister tell us how many bosses actually asked His Majesty’s Government for this legislation? Can he point to any appetite for this beyond the Back Benches of his own party? As I said, we will take a practical approach to scrutinising this legislation when it comes to your Lordships’ House.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

My Lords, I thank the noble Lords, Lord Lennie and Lord Fox, for their contributions. I start by placing on record the Government’s thanks to public sector workers, especially those working in the NHS. Their work is greatly valued and I know that all noble Lords here today are very grateful for the work they do.

Let me say in response to the noble Lords that while the pressure on the public sector is of course recognised—there are unprecedented strains, particularly on the health service at the moment—it is regrettable that multiple unions have taken the decision to strike. The public are understandably worried about access to emergency care and they are tired of the ongoing chaos on many parts of our public transport network. The Government want to resolve these disputes where that is possible and Ministers across government have been meeting union representatives this week to find meaningful ways forward that are fair and reasonable to the taxpayer. While these conversations continue, it is sensible and reasonable for the Government to take steps to reduce the disproportionate impact that strikes can have on the wider public and on our economy, and that is why we have taken the decision to introduce this legislation.

Let me be clear: we hope that in many cases we will not have to use the powers the Bill gives us. Where unions reach voluntary agreements—as is the case with the nursing unions at the moment—to provide adequate minimum levels of service that keep people safe and help the economy and society to function, we will not regulate those sectors. However, it is absolutely right that the Government have the power to act in key services where that does not happen.

The noble Lord, Lord Lennie, raised the issue of international compatibility, particularly with the ILO. I can reassure noble Lords that as part of the introduction of this legislation, the Secretary of State signed a statement of compatibility with the ECHR, and a memorandum to this effect has been published. I will place a copy of that memorandum, in addition to the delegated powers memorandum, in the Libraries of the House. Since the noble Lord quoted the ILO, let me quote the ILO back to him. The ILO itself states that minimum service levels can be a proportionate way of balancing the right to strike with the right to protect the wider public, and that is exactly what we are doing.

Let me address head on the issue raised by both noble Lords, Lord Lennie and Lord Fox, with their fairly alarmist statements about it somehow being the Government’s policy to sack workers as part of this legislation. I clarify for the record and for noble Lords that that is not the case. It is a ridiculous exaggeration. When it comes to the position of this Government on the number of key workers, we are in favour of increasing them, not sacking them.

Both noble Lords referred to other European countries. There is a certain irony in this, because normally, both noble Lords press me to adopt what other European countries are already doing—they normally quote it, particularly the Liberal Democrats, as an example of what we should be doing in this country. It is the case, although noble Lords might not like it, that many European countries and other global democracies have minimum service levels. They are facing precisely the same challenges and protecting the wider public from disproportionate impacts of strikes. In fact, many of those countries ban strikes completely in blue light and border security areas. Of course, we are not proposing to do that. This legislation does not ban the right to strike. The Government will always defend workers’ ability to withdraw their labour, but in line with what the Liberal Democrats normally ask us to do, this legislation actually brings us into line with what many other modern European countries already do.

Both noble Lords asked me about implementation and the detail of how these would work in practice. We will consult on how they will be applied to rail, ambulances and the services. These consultations will outline the proposed approaches for MSLs in each service—they will differ across different services, of course—and I will endeavour to have published during the passage of this legislation each consultation expected to be published. I look forward to engaging with noble Lords on this issue in more detail during the passage of the Bill.

The noble Lord, Lord Lennie, suggested that the Government should focus on resolving the disputes with the unions and do away with this legislation. As the Prime Minister promised last week, we are building a better future for the country by halving inflation this year, growing the economy and getting our national debt down. If we met all the inflation-busting demands of the unions, we would be shooting the economy in the foot and making life harder for other workers up and down the country. The answer to his point is that we are doing both. Of course, we will continue to talk and negotiate with the unions, but it is right that we take action to make sure that the public are protected where necessary.

--- Later in debate ---

[Lord Callanan (Con)]

I welcome the noble Lord saying that he regrets the strike action—I think that is the first time I have heard anybody from the Opposition say that they regret the inconvenience that has been caused to the public. I take in good heart his other comments; of course we will proceed with care and caution, and with full consultation. However, we are very clear that this action needs to be taken in some sectors, because the public are getting tired of the disruption caused by the actions of one or two unions to their ability to go about their daily business.

[Lord Fox (LD)]

My Lords, I will follow up on the point made by the noble Lord, Lord Clarke. It is quite clear that the Government will not be setting the personnel levels that companies will need to deliver the service levels that the Government are setting. It will be up to local management to decide how many people they need. The point that the noble Lord made was not addressed by the Minister; perhaps Second Reading will be a chance to go through that in more detail.

The Minister will have to address the point about sanctions. What happens if named individuals on work orders refuse to work? He says, “We have no intention to sack people” but essentially, if someone refuses to do something, that is grounds for sacking. There are two sides to this, and when we come to Second Reading, the Minister will have to be able to answer these sorts of questions on the operational detail that I was talking about. Can he undertake to come back on Second Reading with that level of detail so that we can move forward sensibly on this legislation?

[Lord Callanan (Con)]

As I said in my short remarks, the overall minimum service level will be determined in regulations approved by Parliament, and the noble Lord is right that the implementation of that—in other words, how many workers will need to turn up to deliver that service level, plus, presumably, a few for reserve, et cetera, for those who might be sick on the day—will need to be set by individual employers on the ground in response to the different circumstances that will apply. The ultimate sanction is the same as for anybody who does not turn up to work now: they are in breach of their contracts and they will lose their right to unfair dismissal protection.