Strikes (Minimum Service Levels) Bill

Lord Fox Excerpts

Report stage
Wednesday 26th April 2023 Lords Chamber

Moved by

[Lord Fox]

1: The Schedule, page 3, line 31, at end insert—
“(5) The powers conferred by this section must not be exercised unless a consultation on the potential impact of their use has been carried out, published, and reviewed by a committee of each House of Parliament whose remit includes either the wider UK workforce and industrial relations, or the sector to which the regulations in question relate.(6) Such consultations must—(a) be carried out by the Secretary of State and involve representatives of any relevant unions, employers and other interested parties,(b) include an assessment of the potential impact of the minimum service regulations on the rights of workers to strike, the effectiveness of the relevant services, and the impact on the wider public,(c) consider services in all categories listed in subsection (4), and(d) include reference to respective service levels outside of strike action.(7) The results of the consultation and the reviews by committees must be published in a report, and the Secretary of State must lay a copy of the report before Parliament.”Member’s explanatory statement
This amendment would require a consultation to be carried out and reviewed before the powers in section 234B can be used.

[Lord Fox (LD)]

My Lords, I welcome the Minister to his chair.

Amendment 1 is in my name and that of the noble Lord, Lord Collins. This amendment is agnostic about what is thought about the legislation’s purpose; you might support its intentions or you might reject them, and there are groups coming up after this one that will give your Lordships a chance to have that debate. This amendment revolves around what you think of Parliament and its role in making important laws that affect people in a big way. I will explain that briefly.

The central focus of the Bill is to establish legally binding minimum service levels for a range of services, some of which are delivered via the state and some of which are delivered via private companies. You will hear arguments later about how this is designed to work, but suffice to say the key element of the Bill is what constitutes a minimum service level that should be expected during a strike. The nature and quantum of this is critical to determining how many workers are effectively compelled to go to work on a strike day. The service levels are critical, and yet Parliament is effectively sidelined in the process of their development.

In the Commons, that celebrated supporter of the labour movement, Jacob Rees-Mogg, called the Bill “badly written” and an

“extreme example of bad practice”.

He criticised the lack of detail and said that it should instead

“set out clearly what it is trying to achieve”.

He added:

“This Bill is almost so skeletal that we wonder if bits of the bones were stolen away by wild animals and taken and buried somewhere”.—[Official Report, Commons, 30/1/23; cols. 89-92.]


Your Lordships will have seen the less colourful response from the Delegated Powers and Regulatory Reform Committee, which makes a similar plea for more detail in this primary legislation.

Despite this being a Bill that deals with minimum service levels during strikes—that is what it says on the cover—there is nothing in it to say what those minimum service levels are, or indeed the nature of what a minimum service level is. That is left to the Secretary of State. The vital details will follow the enactment of the Bill, when the Secretary of State makes regulations. The DPRRC describes this as “small comfort to Parliament”. The Government say that the detail required to set the level of service for each relevant service is not appropriate for primary legislation. However, the DPRRC notes that

“the Memorandum does not explain why setting out any detail on the face of the Bill would be inappropriate. Parliament”—

as we know—

“is not allergic to matters of detail, particularly where it relates to an important matter such as the right to strike”.

Instead, the process of adding flesh to this skeleton is left to as yet unspecified regulation. The additional irritant to the scrutiny of the Bill has been the absence of a coherent or comprehensive impact assessment.

This amendment seeks to bolster Parliament’s oversight. It would require a consultation to be carried out and reviewed before the powers in new Section 234B for the Secretary of State to specify minimum service levels can be used. The amendment would insert three new conditions. First, proposed new subsection (5) would mandate proper consultation on the potential impact of the use of minimum service levels to be carried out, published and reviewed by a committee of each House of Parliament. Next, proposed new subsection (6) would ensure that the consultation includes all those involved; covers the potential impact of the minimum service regulations on the rights of workers to strike and the effectiveness of relevant services, and the impact on the wider public; and takes into consideration service levels outside of strike days. Finally, the amendment would insert new subsection (7), which would ensure that the results of the consultation and the reviews by the committees are published in a report, and that the Secretary of State lays a copy of it before Parliament. The Minister will say that extensive consultation is under way, but it is non-binding and bypasses Parliament.

In conclusion, this is a modest amendment that in no way impedes the purpose of the Bill. It is about democratic process—something your Lordships have often had to defend. Amendment 1 seeks to bring Parliament back into this process at the expense of undemocratic executive action. I beg to move.

[Baroness Meacher (CB)]

My Lords, very briefly, I support this amendment. It seems to me that we have seen Bill after Bill in which this Government have chosen to bypass Parliament and leave too many decisions to Secretaries of State. Therefore, for me, as a former member of the Delegated Powers and Regulatory Reform Committee, the most important aspect of this amendment is the requirement, following consultation, to present these matters to committees of both Houses of Parliament. I do not want to say any more; the case has been made very clearly. However, I would like it noted that I support this amendment very strongly.

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[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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[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 Collins of Highbury (Lab)]

My Lords, I thought that I had better interject and speak to Amendment 5 in my name and that of the noble Lord, Lord Fox.

I reiterate what my noble friend Lord Woodley said. The Minister has said on every occasion that we have considered the Bill that this is not about banning the right to strike, which is a fundamental right. I have no doubt that the Minister will repeat that when he responds to this debate. We face in this country some of the most onerous processes and procedures in order for people to exercise that right through their trade union. The statutory ballot requirements are pretty rigorous and, as the noble Lord has said previously, they can be challenged in court. Unions are very concerned to make sure that they do not breach the law, that they act within the law and that strikes are lawfully conducted.

Here we have a situation where a clause in this Bill could place trade unions in a position where they would be asked to ensure that the members who vote for industrial action—who go through that rigorous process—do not take part in that action. That is not the responsibility of a trade union. A union could face an injunction or be forced to pay damages if it is deemed not to have taken “reasonable steps”.

The noble and learned Lord, Lord Thomas, talked about the definition of “may”. Well, what is the definition of “reasonable steps”? What situation are we putting trade unions in with this vague requirement that could result in them facing legal action? If a union is deemed not to have followed the legislation, the strike could be regarded as unlawful and the protection for striking workers, such as automatic unfair dismissal protection, could be removed from all striking members, including those not named in the work notices. So, employees will not know before participating in the strike action whether they have protection, and unions do not know what amounts to “reasonable steps”, as no detail has been provided in the Bill. I think that is an unacceptable situation. We should not be passing laws that put individuals and trade unions in that position.

Of course, this is not simply my view. The Joint Committee on Human Rights concluded:

“We find it hard to see how it is compliant with Article 11 ECHR to expose any participant in industrial action to the risk of dismissal simply because a trade union fails to take unspecified ‘reasonable steps’ required in respect of those subject to a work notice. In our view, the Government has not provided sufficient justification for this consequence or explained why the minimum service scheme could not be effective without it”.


I think those are the words—I do not need to say any more. I hope the House will support Amendment 5.

[Lord Fox (LD)]

My Lords, I will speak very briefly to both these amendments, which have my name. There might be an argument that the ends justify the means, but this does not deliver the ends. This false promise does not work. The means we are discussing here will poison industrial relations. The means we are discussing here will make recruitment into public services much harder, because working conditions will be made worse. The means we are talking about here will also remove predictability when we have a workplace dispute, because, as has been noted, people will go off sick and refuse to do overtime, and that will make the job of managing through a strike much harder.

The last group talked about protecting employers from this unwanted Bill. This group talks about protecting workers and unions from this unwanted Bill, and I ask your Lordships to support both these amendments.

[Lord Hendy (Lab)]

My Lords, I rise to support Amendments 4 and 5. I will be brief and speak only about Amendment 5. The purpose of the proposed new Section 234E is objectionable, for all the reasons my noble friend Lord Collins has spelled out: the ethical objection to requiring a union to undermine its own otherwise lawful strike. There is a more fundamental point here; this is an elephant trap. The purpose of this provision is to enable employers to get injunctions to prevent unions conducting a strike that has been balloted.

I am reminded that, 44 years ago, I stood at the Bar of this House as junior counsel in a case called Express Newspapers Ltd v McShane and Ashton. Since then, I must have done dozens of strike cases. I know what my learned friends will say, representing employers in the sort of case where this issue arises; they will say that the union has failed to take reasonable steps. The union will produce a witness statement setting out all the steps it has taken, and the employers will say, “Ah, but there’s one step you didn’t take”, and they will say what it was.

This Bill does not say what the reasonable steps are or what factors are to be taken into consideration. That is in contrast, for example, to Section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992; in dealing with dismissals during a strike, it set outs the words “reasonable steps” and says expressly what factors a court is to take into account in determining whether reasonable steps have been taken or not.