Retained EU Law (Revocation and Reform) Bill

Debate between Lord Fox and Lord Hendy

Report stage
Monday 15th May 2023 Lords Chamber

[Lord Hendy (Lab)]

My Lords, I support Amendment 50, as well as Amendment 51, which bears my name. Amendment 51 is an elaboration of Amendment 50, so I will speak only to Amendment 50. I endorse everything that my noble friend Lord Collins has said. The object of Amendment 50 is, as it states in proposed new subsection (1)(a), to prevent the reduction of

“the level of protection for workers”.

As my noble friend said, this is not simply to protect workers but to protect good employers from being undercut by bad employers. It speaks of the level of protection for workers, in respect not just of employment rights but of health and safety at work rights.

In spite of the warm words of the Government and the promises of an employment Bill over the last three or four years, there is a suspicion that the Government will try to take advantage of Brexit to undermine and water down workers’ rights. That fear is not helped by the fact that, last week, on 10 May, as I mentioned earlier today, the Department for Business and Trade published its booklet, Smarter Regulation to Grow the Economy. This contains no less than four proposals to water down the Working Time Regulations and Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, which guarantees the right of workers to be consulted when collective redundancies are proposed.

The proposals to water down those rights are not contained in the Bill, as they could have been among the 928 proposals in the schedule. They are yet to come, in the form of statutory instruments that we have not seen, cannot examine and, when it comes to it—notwithstanding the excellent amendments from the noble and learned Lord, Lord Hope, earlier on—may have difficulty in seeking to amend. The purpose of Amendment 50, and indeed Amendment 51, is to ensure that workers’ rights are not watered down and that the obligations contained in Articles 387(2) and 399(5) of the trade and co-operation agreement, against regression, are honoured.

[Lord Fox (LD)]

My Lords, my name is on both of these amendments and I am happy to support them both. The proposers will be pleased to know that I do not intend to speak for long, because I have heard two excellent speeches that set out the reasons why supporting these amendments is important.

The noble Lord, Lord Hendy, talked about the danger of back-door watering down of legislation. It may not be this Government; once this is in statute, it could be any Government going forward. We do not necessarily have to distrust the people we see before us—I personally do not—but we do not know who in future will be able to use these measures.

If the Government want to water down workers’ conditions, that should be done through primary legislation, straight up, and negotiated and scrutinised properly. It should not be put through the backdoor, which could happen here. Throughout the process of the Bill, the noble Lord, Lord Callanan, has said over and over again that it is not the Government’s intention to water down workers’ rights. By supporting Amendment 50, the Government can make sure that they are absolutely as good as their word.

Strikes (Minimum Service Levels) Bill

Debate between Lord Fox and Lord Hendy

Report stage
Wednesday 26th April 2023 Lords Chamber

[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.

Strikes (Minimum Service Levels) Bill

Debate between Lord Fox and Lord Hendy

Committee stage
Thursday 23rd March 2023 Lords Chamber

[Lord Fox (LD)]

My Lords, the Minister may feel a sense of déjà vu in this group, but the point is to turn the focus to the individual worker named on the work order. This is not about the union or the company; it is to amplify the effect that this Bill can have on the individual. That is why I am happy to present Amendment 32 and to support the other two amendments in the group.

Amendment 32 would protect employees from the detrimental action of not complying with a work order. The point here is to amplify that, at the moment, failure to comply with a work notice could be regarded as a breach of contract. This amendment seeks to remove that possibility. Why? Because we are looking at a list that is prepared by an employer, with no sense of what criteria that employer is using to deliver the list. The employer assesses the number of people, and indeed the names of those people, who are required to produce a minimum service level that a Minister has decided with very little recourse to Parliament. It is the individual who is at the end of that chain, over which they have no control or power whatever. That is the point I seek to emphasise here. It is the individual at the end who will carry the can for this Bill, if it becomes an Act.

I have proposed this amendment because I want to emphasise very clearly that, although the Minister says the Bill is not about wanting to sack people, it can, and because it can, it will be used in the future to sack people for not complying with work orders—work orders produced in a process over which employees have essentially no power or ability to appeal whatever. It is an absolute infringement of their freedom. That is why I propose this amendment. Under the Bill, the employee could be sacked for taking strike action that has been agreed by a democratic ballot, it having gone through all the hoops that the Government require such ballots to observe. Because the employer has decided to put them on a list, the employee cannot do that.

From everything that has come from the Dispatch Box so far, I think it will be hard for the Minister to understand this. However, it is something my colleagues on these Benches and I have discussed a lot, and which we find to be a really important element of the Bill. It is about the relationships between unions and their employers, and between the employers and the Government, but in the end, it is about a fundamental individual right, and this Bill removes that right. I beg to move.

[Lord Hendy (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Fox. My Amendment 32A simply amplifies the noble Lord’s amendment and takes it a little further.

As I understand it, and the Minister will correct me if I have misunderstood the Bill, the consequence of being requisitioned and then refusing to work during a strike is that there will be no protection from unfair dismissal. As many other Members of the Committee have already said, if that is the case, bad employers—of which there are some—will use that as an excuse to be rid of people who they regard as trouble-makers, whether or not they are union activists.

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[Lord Hendy (Lab)]

My Lords, I shall speak to Amendments 33 and 34. I share my noble friend Lord Collins’s outrage at this proposal. It is one thing to set minimum service levels and another thing to specify requisition notices by way of a work notice, but to require trade unions to organise themselves so as to break their own strike is a step that has never before been taken in this country and, so far as I am aware, is not required in any other country in Europe.

I remind the Committee that the provision in the Bill that we are seeking to discuss says

“the strike is not protected as respects that person’s employer if … the union fails to take reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice.”

So the obligation on the union is to

“take reasonable steps to ensure”

that all members comply with the notice. That is a very heavy obligation to put on unions. In principle it is objectionable, but the extent of it makes it even more so.

I cannot develop the objection on principle further, but there are some practical considerations here that perhaps the Minister can consider. We are envisaging a work notice given by the employer to the union, setting out names of a number of workers who are required to work and the work that they are required to do; we remind ourselves that, at the end of the Bill, it is said that that can be on a daily basis. If you have one employer and one strike affecting a small number of workers, that may be a relatively easy obligation to comply with.

However, I remind the Minister that the Bill applies to the education service. I have just looked up the Office for National Statistics site, which tells me that there are 32,226 schools in this country—although in fact I understand from the National Education Union that it balloted only some 24,000-odd of those. Think of that: even if we assume that only half the employers decide to supply a work notice, on a daily basis the unions are going to get 10,000 or 12,000 emails with a list of teachers who are required to be in. The union then has to set that list against its own membership database in order to determine which of them are members of the union, and then has to communicate with each one of them in order to demonstrate that they have taken “reasonable steps to ensure” that those members comply with the notice. This is just nonsense, is it not? It really must be.

Part of the problem is that the Bill does not define “reasonable steps”—that will be left to the courts to determine. I have done enough of these industrial action cases over the last 40 years to know that employers’ barristers—all friends of mine—are going to use every argument in the book to demonstrate that the union has not taken the “reasonable steps” that the employer says it should have. One of those, of course, will be to say that the union did not threaten to discipline any members who refused to comply with the notice or expel anybody, and to ask what it did do.

All of this is against the background of a union having committed itself, after a vote in favour by the members—a vote which meets all the thresholds—to advancing a strike. All the publicity that goes out from the union’s website and journal and in emails to members will say that it is calling a strike on, say, the 24th of the month, starting at midnight, and calling for members to join the strike, go on the picket line and participate—this is their fight and their struggle for better pay and conditions, or whatever it is. However, the union has to demonstrate that it identified those members appearing on a work notice in order to show that it took reasonable steps to ensure that those members complied. This is simply not realistic, and it is not acceptable.

[Lord Fox (LD)]

Following on from the noble Lord, Lord Hendy—I apologise for butting in—it is not quite as simple as that. What happens if, of the employers list, 30% of them go off sick? Who is accountable for filling in the gap? Is it the union? Does it have to take “reasonable steps” to find substitutes? The Minister shakes his head to say that it does not—that is good. Perhaps when he replies he can explain what happens in the event of a significant number of those people going off sick.

I will not add any more, as I am sure there will be plenty from the Benches of His Majesty’s Opposition.

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[Lord Fox (LD)]

My Lords, this is something of an hors d’oeuvre for the next group, so I will save my comments on this issue—although I thoroughly agree with the noble Baroness—for Amendment 37, which I consider to be a meatier version of the same issue. This is clearly starting the move to the territory where we give Parliament the opportunity at least to scrutinise, if not amend, what comes before it. We will come to more of that in a few minutes.

[Lord Hendy (Lab)]

My Lords, at the risk of saying what I said earlier, if this amendment is not accepted by the Government, that presents a problem to the whole House as to what is to be done about Bills that do not conform to the elementary requirements of various committees, where detail is not published in the Bills but reserved to regulations. That problem will have to be confronted if the Government are not prepared to accept this very modest amendment, as my noble friend Lady Chakrabarti put it.

Procurement Bill [HL]

Debate between Lord Fox and Lord Hendy

Report stage
Monday 28th November 2022 Lords Chamber

[Lord Hendy (Lab)]

My Lords, I rise to speak to Amendment 162A, which rather neatly follows the noble Baroness, Lady Noakes, because it deals with Section 17 of the Local Government Act 1988. Its intention is to remove the prohibition in that provision which prevents local authorities taking into account the terms and conditions of the staff of the supplier, or their legal status. The thought behind this is that public authorities should take into account the terms and conditions and the legal status of those who carry out the work under these public contracts. The restriction applies to local government only and not to other public authorities.

[Lord Fox (LD)]

My Lords, I rise to speak on Amendment 73 as my noble friend Lord Clement-Jones is detained in Grand Committee. This amendment requires direct-award contracts included in a framework agreement to be retendered 18 months after the award. This amendment takes a different route from the one we discussed in Committee, but the aim is the same: to prevent direct contracts being used within framework agreements to restrict competition from British SMEs and reinforce the dominance of certain key foreign players in the market. The Minister will remember that we used cloud computing as a major example of where the system has gone off the rails. The SME share of the market has fallen from more than 50% to just 20% in the past five years. In this respect, there is little sign that the Procurement Bill is in reality designed to provide new opportunities to prevent this slide towards—shall we call it “oligopoly”, to coin a phrase that was used by the noble Lord, Lord Maude, in a different context?

Rather than preventing such awards, as we attempted last time, we have instead put down an amendment to time-limit the awards. This would introduce a duty to retender, after 18 months, direct contracts awarded as part of a framework agreement under Clauses 38 and 41. This would provide the opportunity to redress the balance and help support UK SMEs. In Grand Committee, the Minister said that my noble friend Lord Clement-Jones had made a lot of points that she was not aware of and promised to study in relation to the important areas of cloud computing and UK businesses. She also emphasised some of the advantages of framework agreements. We are not arguing with that, but that is not the point. This is about detriment to SMEs through the use of direct contracts which are hidden within framework agreements. The problem can be cured. The Minister also said in relation to these agreements that it makes sense for them to be time-limited. I hope she has studied the words of my noble friend and has something to offer that limits the duration of direct contracts that are made within framework agreements.

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[Lord Fox (LD)]

My Lords, I rise to speak to Amendment 89 in my name. I feel that the time pressure has lifted, so perhaps I can make a nice long speech to your Lordships now. Amendment 89 is intended to allow Ministers and contracting authorities to exclude businesses from procurement where there is evidence of financial and economic criminal activity, such as fraud, money laundering, bribery or sanctions evasions, but there has not yet been a conviction by a court.

This follows the debate we had in Grand Committee on Amendment 320, when the Minister made some cogent points about the problems of excluding organisations that had not been convicted—that point was understood. However, given the length of time involved in carrying out investigations and then securing the resulting enforcement action, we remain concerned that there is a real possibility that unsuitable suppliers may be awarded procurement contracts while they are awaiting the full length of the process.

It was therefore with some interest that my attention was drawn to the Government’s Review into the Risks of Fraud and Corruption in Local Government Procurement. This review looked into the risks of fraud and corruption in local government procurement—not surprising; that is what it was supposed to do—and made the recommendation that the exclusions regime for public procurement should be examined to see

“if more could be done to allow procurers to exclude bidders from the process (with reasonable cause and without the requirement to disclose), for example when there are known concerns with law enforcement that have not yet resulted in a prosecution”.

We believe that the Bill provides an opportunity for the Government to fulfil this recommendation, and suggest that the process of studying how to do that, recommended in that report, could happen. I should be grateful if the Minister would bring forward some sort of government process to have that assessment. If this is not the Government’s intention, she needs to explain to your Lordships’ House why she is prepared to recommend one process for local authorities through a report that had ministerial backing while ignoring the actual issue in the appropriate legislation, which is the Bill. This was the subject of a letter that I wrote to the Minister many days ago and I am still waiting for the reply.

It is in everyone’s interest to ensure that the contracting authority can act when it has evidence of financial or economic offences, but formal conviction is outstanding. We understand the problems, but the Government themselves have identified this as an issue with local authorities. The exclusion regime is not just a deterrent for bad actors; it is also supposed to prevent them getting the contracts in the first place.

[Lord Hendy (Lab)]

My Lords, my Amendment 91A follows the theme of my earlier Amendment 162A. The thrust of this amendment is that in determining whether to let a public contract to a bidder, a public authority should have the power to take into consideration the conduct of the potential supplier vis-à-vis its staff.

The Government are to be praised for accepting that public procurement is a useful tool to maintain and raise standards, hence the emphasis on public good, even without the benefit of Amendment 46. Clause 29, for example, excludes those guilty of improper behaviour of various kinds. Schedule 6 provides that there are mandatory exclusions, among other things, for suppliers who have been convicted of various offences: corporate manslaughter, homicide, terrorism, theft, fraud, bribery, organised crime, tax offences, and cartel offences.