Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels)

Debate between Lord Fox and Lord Geddes

Wednesday 6th December 2023 Lords Chamber

[Lord Fox (LD)]

My Lords—

[The Deputy Speaker (Lord Geddes) (Con)]

I was so fascinated by the noble Baroness’s speech.

[Lord Fox (LD)]

I apologise to the Deputy Speaker for stepping up too soon.

I thank the Minister for describing the first on the menu of the four statutory instruments we will be tasting today. I think that he was yet the ascend the rickety stairs of ministerial responsibility when the noble Lord, Lord Collins, the noble Baroness, Lady Jones—when she was among us—and I were debating the substantive nature of this Bill, so we welcome him to this tiny corner of legislation. It is a shame that the noble Lord, Lord Callanan, has now left as I thought he was overseeing the realisation of his creature; of course, it was the noble Lord, Lord Callanan, with whom we debated. Actually, the Minister did not miss a lot of the substance of the legislation because, as the noble Lord, Lord Collins, pointed out, there was not a great deal of substance in the enabling Bill. It is these statutory instruments that we will see today that begin to put the soft tissue on to the skeleton of that Bill.

There are four instruments, but we are looking in particular at the one aimed at tying the unions up in procedural knots. It is laying legal traps by which they can be caught out, with potentially existential sanctions. None of us enjoys the effects of public sector strikes—the Minister described those effects today. Swathes of society are inconvenienced and, in the case of the health service, it is much worse than an inconvenience. It behoves any Government to create the conditions for ending strikes as soon as possible, but this legislation does not create those conditions. As we heard from the noble Lord, Lord Collins, it creates heat and friction and makes settlement less likely. For the benefit of this Minister, I will repeat what I said while we were debating the Bill: disputes end only when the relevant parties sit down, talk and negotiate. It is for Governments to act to maximise the opportunity of those negotiations, rather than turn one party on the other.

I will concentrate on the operational faults of this statutory instrument, because therein lie the traps for unions. It really begs the question of how reasonable the code’s “reasonable steps” are? Unions must ensure that their members comply with the employer’s work notices. A work notice, as we have heard, is essentially a list of names associated to tasks for that particular service. Its purpose is to seek to deliver an agreed level of service—a handed-down level of service from government to the employer to the union. To comply, the union must first filter out the non-union members from that list and then take “reasonable steps” to ensure that its members do not honour that strike—a strike that the union itself has legitimately and legally called. To do this, the unions are likely to have extremely tight deadlines—deliberately unreasonable deadlines, I suggest.

Employers have only to provide a work notice seven days before a strike commences. That notice—the list—can be further amended, leaving only three days for the union to contact its members. That is not three working days, just three days, so it could include Saturday and Sunday. We have seen the pro forma; this communication must encourage them to pass through the union’s picket lines and go to work. I remind your Lordships, including those of us who were at the debate, that picket lines and picketing were never mentioned in the original discussion.

To go back to the procedural difficulties, some disputes are small and involve few union members. But the nature of the industries covered by the Act means that disputes are likely to be countrywide and involve tens of thousands of employees, maybe more, so I ask the Minister: is it a reasonable step to ask a union to track down and contact 20,000 people in three days, perhaps over a weekend? How does he expect that contact to be made? Will it be by email? He may be surprised to know that not everybody has email, and further surprised to find out that not everybody hands over their email address to their union. Will it be put on a postcard? I suggest that the postal service may not get it there in time.

There are serious impediments to the taking of these reasonable steps—or possibly unreasonable steps—but let us say that the union succeeds in crossing these hurdles and navigating its way through the minefield set out in this statutory instrument. Can the Minister confirm that the union is therefore indemnified from prosecution if some or all of its members still choose to ignore its advice and honour the strike? What is the legal position of the union? The point raised by the noble Lord, Lord Collins, about how we prove that the steps were reasonable still remains but, in negotiating those reasonable steps, can the Minister confirm that the union is then indemnified?

One would expect the TUC to be critical of this legislation, as it is, but what about ACAS, the Advisory, Conciliation and Arbitration Service, which is the expert at putting people around a table and trying to solve these problems? It too expressed reservations and asked why—I have relayed this to the Minister—if the reasonable steps for unions are set out in detail, similar steps are not set out for employers. Why are similar steps not also set out for the Secretary of State in his or her dealings on these issues? For example, what is to stop the employers overstating the number of persons reasonably necessary to provide the minimum service level mandated by the Secretary of State? Those are not my questions but ACAS’s. At the moment, as far as I can see, there is nothing to stop them. How would the union challenge that, given the time available and the current state of the code?