Strikes (Minimum Service Levels: NHS Ambulance Services and the NHS Patient Transport Service) Regulations 2023

Lord Hendy Excerpts

Wednesday 6th December 2023 Lords Chamber

[Lord Rooker (Lab)]

My Lords, I came in today to break the habit of a lifetime—I have been in the House for more than 20 years, half of them as a Minister—because I proposed to vote against the first two Motions. I was going to support the first two fatal amendments. I felt deprived that I did not have the opportunity to do that—I am still going to make my points, mind you.

These are steps too far. I do not think that we should pussyfoot around. We know that, earlier in the year, the Government rejected the report on the Bill from the Delegated Powers Committee. There are times when this House should not simply fall into line with this Tory Government; this is one of them. I am reminded in some ways that, very sadly, we are missing today the contribution of the late Lord Judge who, earlier this year—on more than one occasion—made it clear from those Benches that we need to use the powers available to this House when we need to be firm. There were a couple of debates on it. In my view, this is such a time.

In answer to the Lib Dem Benches, we know that the health service bosses are not independent—we know that from the pay review bodies—so it is fairly obvious what will happen. I realise about the so-called conventions but they are between Labour and the Conservatives. There is no rule in the Statutory Instruments Act 1946 about not voting against a statutory instrument in either House; it is just the convention that we do not do it. We fear now that, if we do it to them, they will do it to us. In fact, the Tories have done it more to Labour than Labour have to the Tories so I am not going to take any lectures about conventions from this Government, who have breached, systematically ignored and torn up many of the conventions that rule our constitution. I will not rely on the use of fatal amendments by the noble Lord, Lord Strathclyde, either.

One area will suffice as an example: electoral law. I am in favour of ID cards but the identity system was deliberately designed to reduce voting. Rees-Mogg admitted when he was the Leader of the other place that they had got it wrong: they fully intended to get fewer people in polling stations. The Government have neutered the Electoral Commission as the guardian of free and fair elections and, this past month, they changed the finances of elections, all without any consultation and with no Speaker’s Conference whatever. That is part of the constitution and the conventions on the way we do things. We do not have to follow the conventions: if a thing is bad enough, vote against it.

Paragraph 41 of the Secondary Legislation Scrutiny Committee report on these regulations—this committee reports to this House, having been set up by the House to look at these issues—says:

“The Department of Health and Social Care’s … consultation document acknowledged that, during past strikes, emergency provision has been delivered through voluntary arrangements”.


So why are we doing this? Why are we picking on ambulance workers? It is not needed. If there were any evidence of flagrant abuse and the voluntary system not working, believe you me, your Lordships would know about it. That is the reality. Therefore, on this one, if anybody called the vote—although it has now been denied—I would be happy to vote against the SI.

I cannot quote much from my experience. When you lose the opportunities of the other place to be in contact with constituents and with people’s daily lives, it is different; it is different when you stop representing people simply because you are in this place. However, I will give one example from my personal experience. Four years ago this month, a few days before Christmas, I was carted really late one Saturday night from Hereford County Hospital, which had spent four years stopping me going over to the dark side, to Worcester Royal, to have my first chemotherapy as an in-patient. The weather was atrocious; the main roads were blocked. The driver of the ambulance said to me, “I’d better warn you now: it might be a bit rough—I’ve got to go down some country lanes”. We passed three upturned cars due to the weather. When I got through it all, I wrote to the chief executive and said, “You’d better put a note on the chitties of those two people who looked after me in that ambulance that night”. It was absolutely horrendous.

I now think that people like that who do this job cannot be trusted to deliver emergency services when there is a dispute—disputes deliberately created by the Government anyway for political reasons. The reality is that I am prepared to vote against this SI, above the others—I am not saying anything about the other two. We have evidence from our own committee that it is not needed, and I have my own bit of personal experience. I thought, “Why pick on the ambulance workers?” If there were an opportunity, I would vote against the SI; I may not have the opportunity, therefore I will obviously support the regret amendment. However, I much regret that I may not be able to vote for the fatal amendment.

[Lord Hendy (Lab)]

My Lords—

[Noble Lords]

Minister!

Cost of Living: Public Well-being

Lord Hendy Excerpts

Thursday 20th October 2022 Lords Chamber

[Lord Hendy (Lab)]

My Lords, it is a pleasure to follow the noble Baroness, who has obviously made a flying start to her career in this House. I congratulate my noble friend Lady Drake on securing this important debate and on her eloquent exposition of so many aspects of the issues we are discussing. The noble Baroness, Lady Tyler, mentioned the survey conducted by the British Psychological Society and gave us some statistics. I would like to quote the chief executive, who said in relation to that survey:

“The cost of living crisis is critical, immediate and severe and disproportionately impacting those that need support the most. As well as the practicalities of being able to heat homes and put food on the table, people are also carrying the mental health load of living under this strain. We are incredibly concerned that many simply will be unable to cope, with nowhere to turn to get help as services are already stretched and struggling to cope with soaring demand.”


The Government have capped the price of energy, but the cap is estimated to cause average bills to rise by more than 150% over last year’s figures. Now the Chancellor has announced that that guarantee will last only until April, by which time the average energy bill is expected to be 400% greater than last year. Could anything be more calculated to undermine public well-being and increase

“the mental health load of living under this strain”?

The other side of the equation is income. Others have spoken of benefits and pensions; I would like to say a word about wages. Average regular pay is currently £574 a week. Its value in real terms has been declining for a decade. Wages are so low that, for several years, more people claimed universal credit who were in work than were out of work. The value of wages this year, under this Government, is falling faster than ever. The loss is, according to the ONS, on average at least 3.2% per annum. The latest figures show that the nominal wage increase is running at 5.4%, whereas the consumer price index with housing—CPIH—is rising at 8.5%. As noble Lords have pointed out, for food it is rising at 14%.

In the public sector, where average wage increases are running at 2.2%, the cut in the real value of wages is even more stark. Indeed, even if the 3.2% cut, on the basis of the ONS calculation, is the median annual wage loss, half of our workforce of 30 million are suffering greater wage cuts than that.

My noble friend Lady Primarolo referred to the OECD. In its annual Employment Outlook 2022, published a fortnight ago, it stated:

“The impact of rising inflation on real incomes is larger for lower-income households which have already borne the brunt of the COVID-19 crisis.”


The decline in the real value of wages by reason of pay not keeping up with prices is, of course, a global phenomenon—although, globally, the UK scores particularly badly on that metric.

The OECD highlights that one of the causes of the fall in real wages is that

“the proportion of workers who are covered by collective agreements in the OECD has steadily declined over the last three decades … weakening the bargaining power of workers … In the absence of countervailing power by organised labour, employers typically retain significant power to unilaterally determine wages and working conditions. Bargaining power is typically lower for vulnerable groups: while this is a source of concern even in low-inflation conditions, it becomes more serious in the current relatively high-inflation situation as these workers are not in a position to negotiate wage increases to keep up with price increases.”

The OECD recommendation is simple:

“Protecting living standards also requires rebalancing bargaining power between employers and workers, so that workers can effectively bargain for their wage on a level playing field … Rebalancing bargaining power, however, also means giving a new impetus to collective bargaining and, therefore, accompanying the efforts of unions and employer organisations to expand their membership and enlarge the coverage of collective agreements.”


This, of course, has been advocated by the International Labour Organization since the Second World War. Even the IMF has recommended the extension of collective bargaining, and nowhere is this more necessary than in the United Kingdom, where collective bargaining coverage has fallen from 85% in the 1970s to less than 25% of workers today covered by a collective agreement—from one of the highest coverages in Europe to one of the lowest. Yet high collective-bargaining coverage is one of the hallmarks of the most successful economies in Europe.

In the Transport Strikes (Minimum Service Levels) Bill, published today, I was appalled to see yet further restrictions on the capacity of workers to protect their wages by taking strike action where persuasion fails. But I was surprised and encouraged to read that the Bill imposes a mandatory obligation on employers and unions to negotiate a collective agreement. Unfortunately, such an agreement is confined by the Bill to agreeing a minimum service level in the event of a strike.

With this remarkable precedent having been set, I hope the Minister can tell us that compulsory collective bargaining will be extended to all sectors of the economy, covering pay and terms and conditions of employment—the matters that really affect the well-being of the half of our population whose work supports the entire population. If they took this step, the Government would be following many global precedents, notably in New Zealand and the practices of western Europe, as well as the exhortations of the ILO and the OECD. In doing so, they would be exercising the only real option open to them to address falling wages.

Health and Care Bill

Lord Hendy Excerpts

Lords Hansard - Part 2 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, I start by commending Amendment 100 tabled by the noble Lord, Lord Warner, and I look forward to hearing him speak on it. It is an excellent idea to ask people how much choice they have actually had when offered treatment. I also thank the noble Lord, Lord Lansley, for explaining his two amendments, and I would like to say to him that he is not sad for carrying out his role in your Lordships’ House with interest and care. His expertise in matters that may leave others cold should be celebrated. The amendments of the noble Lord, Lord Hendy, ask that trade unions should be part of consultations on private providers, and that seems sensible.

I wish to focus, albeit briefly, on Amendment 106A, which proposes that Clause 70 be left out, and which will be spoken to later by the noble Baroness, Lady Thornton; I apologise to her that under the remote rules I have to speak first. I will confine my remarks to the views of the Delegated Powers and Regulatory Reform Committee’s 15th report, in which paragraphs 17 and 18 make plain its views about these proposed procurement arrangements and regulations. The first point that it notes is that the memorandum, at paragraph 481, says that

“full analysis has not been completed and there has not been time to produce a more developed proposal.”

Why on earth do the Government wish to bring into force legislation that they admit they have not had time to analyse, let alone produce a more developed proposal for? We from our Benches, along with other noble Lords, have repeatedly said that the Cabinet Office procurement Bill is likely to overtake the needs for NHS-specific procurement regulations.

Paragraph 17 of the DPRRC Report gets straight to the heart of the issue and provides a response to the amendments that the noble Lord, Lord Kamall, has tabled, starting with Amendment 101 in this group. It says:

“We do not accept that the inclusion of regulation-making powers should be a cover for inadequately developed policy.”


It is therefore more than a little surprising to see a slew of government amendments on this issue that, in the group under discussion, strengthen the powers under regulation.

Paragraph 18 of the Delegated Powers Committee report states that:

“Ministers would not ordinarily propose clauses in one Bill possibly requiring imminent amendment in a subsequent Bill without expecting to face questions. The House may wish to seek further and better particulars from the Minister concerning the possible effect of any Cabinet Office procurement Bill on the Health and Care Bill, and … to press the Minister on why it was necessary to include provision, based on inadequately developed policy, in the Health and Care Bill when the Government intend to introduce a procurement Bill.”


Not only have we tried this at an earlier stage, but there have been meetings between Committee and Report, and it appears that the Government are determined to press on. I know that the noble Baroness, Lady Thornton, has concerns about the Government’s intentions on the clause and its amendment; if she chooses to call a Division on stand part, we from these Benches will support her.

[Lord Hendy (Lab)]

My Lords, I support Amendments 98A, 98B and 98C. Among other things, the Bill is designed to facilitate the outsourcing to private contractors of NHS services currently carried out in-house. That is the Government’s policy for the NHS, although it is firmly opposed by most of the citizens of this island.

NHS: Nursing Workforce

Lord Hendy Excerpts

Wednesday 8th September 2021 Lords Chamber

[Lord Hendy (Lab)]

Does the Minister accept that the most important mechanism for retaining nursing staff in the NHS is by improving their wages, terms and conditions, and that the best way of doing that is by the restoration of full sectoral collective bargaining, as was the case in 2018?

[Lord Bethell (Con)]

I pay tribute to the noble Lord’s great experience and expertise in this matter. He will be aware that we have a social partnership forum, where we work extremely closely with the professions on how to improve retention. But I think that the motivation of those in public service and, in particular, in healthcare is much more complex than he describes. We have come to a 3% pay agreement with the nurses, and they have demonstrated huge support for the healthcare service during the pandemic, which suggests that it is more complex than he describes.

Residential Social Care: Staff

Lord Hendy Excerpts

Monday 6th September 2021 Lords Chamber

[Lord Hendy (Lab)]

My Lords, does the Minister agree that the best technique for improving and regulating the wages and conditions of those engaged in the sector is through sectoral collective bargaining—a technique that was established by legislation in 1909 and abolished in 2013—namely, the wages councils. These were designed specifically for the low-paid and those less well organised in trade unions. Is it not time that there was a wages council for social care?

[Lord Bethell (Con)]

My Lords, I am enormously grateful for the insight of the noble Lord in this matter, in which I know that he is a great expert. However, he should of course remember that social care is provided through independent providers and local authorities. Social care workers are free to organise themselves as they wish, but that is not the arrangement that we have in this country.

Elderly Social Care (Insurance) Bill [HL]

Lord Hendy Excerpts

2nd reading
Friday 16th July 2021 Lords Chamber

[Lord Hendy (Lab)]

My Lords, with the greatest respect to the noble Lord, Lord Lilley, this Bill fails to address the crisis properly. Cuts of nearly 40% in government support have driven local authorities to cut the cost of social care, although demand for it has, in contrast, increased. Demand now runs at 1.9 million requests per year, more than 5,000 per day. Cost-reduction has been achieved by outsourcing social care to private companies. Whereas 90% of social care was provided in-house 25 years ago, only 10% is today.

That is because outsourcing social care is cheaper. How is that achieved? Simple: the earnings of the workers are slashed. Twenty-five per cent of our 1.49 million care workers are on zero-hours contracts. Many are falsely declared to be self-employed, and some forced to work under personal service companies with no employment rights. The career progression and pensions that care workers had when in local authority employ have evaporated. The democratic input they had into the conditions of their working life is no more. Then, their unions bargained collectively to set terms and conditions across the sector. Employers knew that they would not be undercut by competitors. Workers knew they would enjoy NJC conditions.

Their voice is now silenced. Private employers do not bargain collectively. They compete for tenders on the basis of the lowest labour costs they think they can get away with. Terms are set unilaterally on a “take it or leave it” basis. That is why there is a 10% vacancy rate and a third of care workers leave the sector within 12 months of starting. That is not merely damaging for the standard of life and dignity of care workers; it is catastrophic for those receiving care. They never know who is going to attend them from one day to the next. Caring relationships become impossible.

Neither this Bill nor the Government will give us the national care service the country needs, but there is one step we could take which would improve the lot of carers and the cared-for: the restoration of collective bargaining across the sector. Professor Lydia Hayes wrote a book a few years ago called 8 Good Reasons Why Adult Social Care Needs Sectoral Collective Bargaining. I commend it to the House.

Queen’s Speech

Lord Hendy Excerpts

Thursday 9th January 2020 Lords Chamber

[Lord Hendy (Lab)]

My Lords, I will make two points on the proposed employment Bill and three on the proposed restrictions on the right to strike on the railways. I declare an interest as having spent 40 years in practice at the Bar, doing many cases for trade unions and their members.

First, the employment Bill is said to

“protect and enhance workers’ rights as the UK leaves the EU, making Britain the best place in the world to work”,

a phrase repeated by the Minister in opening this debate. Will the employment Bill guarantee full non-regression of existing EU-derived workers’ rights and dynamic alignment with any future improvements to EU workers’ rights? I understood that was the Conservative Party’s position in the recent election; its manifesto states that the UK’s future relationship with the EU will

“Raise standards in areas like workers’ rights”.


If either protection is denied to Britain’s 32.7 million workers then, by definition, they will enjoy fewer rights in the future than their European counterparts. That will refute the promise to make Britain the best place in the world to work and make clear the nature of the Government’s commitment to those working-class voters who lent them their votes in the last election.

Secondly, there is the Oliver Twist clause. The employment Bill proposes to introduce a right

“for all workers to request a more predictable contract”.

While a right to make a request might have afforded Oliver Twist some comfort in the workhouse, it will be purely rhetorical in the modern workplace. What is required here is a correlative duty on the part of the employer to concede the more predictable contract sought, so far as is reasonably practicable. If there is no agreement, the matter must be determined by an employment tribunal. I trust that the proposed Bill will contain such a provision to give some content to an otherwise empty right.

What is more remarkable about this Oliver Twist provision is the glaring omission of any reference to the EU directive on transparent and predictable working conditions which came into effect last summer. The directive is precisely on point, yet mention of it is omitted. Why? Can it be that the Government have decided that, far from raising standards in areas such as workers’ rights, their intention is to deny British workers these modest EU rights even before Brexit is finalised?

I turn to the proposal to further restrict the right to strike. Only four years ago, the Trade Union Act 2016 added further obstacles to strike action in relation to “important public services”, which included passenger railway services. Yet now railway workers, successors in title to those who were penalised in the Taff Vale judgment in 1901, face yet more restrictions on their right to strike, on the footing that they are engaged in an essential public service—uniquely, it seems, since no other workers have been so designated.

I will add three points to those made by my noble friend Lord Griffiths of Burry Port this morning. First, the International Labour Organization has made it clear that railways are not an essential public service in international labour law, so it is illegitimate to restrict the right to industrial action on that ground. This proposition has recently been adopted as binding by the European Court of Human Rights in Ognevenko v Russia, which reiterated that the right to strike is protected by Article 11 of the convention in a case which concerned a ban on strikes on the Russian railways. The Government will have to think carefully whether the certificate of conformity with the convention can be given to this legislation, unless, having exited the EU, they propose to repeal the Human Rights Act and de-ratify the European convention. Is that their intention?

Secondly, the proposal is for a minimum service agreement to establish what is required. How do the Government envisage such agreement being reached? In circumstances where the union and the employer have failed to agree the underlying industrial dispute, what chance is there of agreeing a minimum service provision during a strike? Will the Government specify a disputes procedure—perhaps concluding in binding arbitration—if the parties fail to agree the minimum service agreement? If the Government believe that the parties can be induced to reach a minimum service agreement, why not provide such an inducement to resolve the industrial dispute?