Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Thursday 8th May 2025 Lords Chamber

[Baroness Coffey (Con)]

My Lords, I support the amendments tabled by my noble friends. I am just thinking of my career. I have had quite a conventional career in many ways, but I have also had many extra roles, particularly when I was a student—I am conscious that we will come to Amendment 19B separately later. It is important to reinforce the challenges in starting up or expanding a particular business. It is well said that a coffee shop will know within the first week whether it will succeed. You could argue that there are different factors, but within the first month a business will certainly know whether the footfall and the sale per customer justify the number of people it is employing and adapt accordingly.

As my noble friend Lord Hunt of Wirral mentioned, there is also this extended element about things such as holidays. It may surprise your Lordships to know quite how many jobs are, frankly, based on whether it rains and people cancelling going out to do different things. That is one of the reasons why, in particular but not exclusively, many hotel chains have started having a price differential: basically, you get a better deal if you book up front, but you cannot cancel or get your money back. Indeed, it is why even more restaurants are, effectively, starting to pre-charge an amount of money that is expected so that people do not cancel. Having lived in touch of the coast for most of my life, I can assure your Lordships that the fluctuation in how many people actually turn up to a resort for the day in a town is real, and what that means for temporary jobs.

That is why I think my noble friend Lord Hunt has found a good way of trying to help the Government to consider some of the everyday decisions that employers have to make as to whether they open up in the first place, whether they try to expand, and whether they try to get the growth. If I go further on to Clause 20, at the same time that the Government are trying to encourage businesses to go into artificial intelligence and see all that can be embraced in that regard, they need to bear in mind that businesses will not invest in such technologies if they are concerned that the other costs will be so detrimental to them.

We keep having this Catch-22 situation: if the Government want growth, they need to recognise the success where employers have been given the chance to scope and to be flexible, although I understand entirely the Government’s intent that the employer should be reasonable with the people that they take on. It is for these reasons—and I will speak more in the next group—that I believe that the Government should seriously consider how they operationalise this. We keep hearing about more and more consultations. We have heard people from the British Retail Consortium, from retailers and from hospitality saying that these are the real issues. We are almost doing their consultation for them by putting forward these amendments, so I hope that the Minister will look on them carefully in his consideration.

[Lord Hendy (Lab)]

My Lords, I shall make four short points on these amendments, all of which I oppose. First, the noble Lord, Lord Hunt, suggested that employers would get locked into guaranteed hours. I remind him that all contracts of employment may be varied by mutual agreement or, if not, they can be terminated and there can be re-engagement on fresh terms.

Secondly, the noble Lord mentioned the industrial reality. The industrial reality of zero-hours contracts is a complete disparity of power: 80% of those on zero-hours contracts would prefer a permanent contract, but those on zero-hours contracts are completely at the mercy of the employer. They do not know how many hours they are going to work tomorrow, let alone next week, and they do not know how much income they will make at the end of any week. Therefore, a worker on a zero-hours contract does not want an argument, to fall out or have a disagreement with the employer. That is a vital component of the legislation my noble friend proposes.

--- Later in debate ---

[Lord Hendy (Lab)]

I endorse what my noble friend Lord Davies said a moment ago. A trade union is defined by Section 1 of the Trade Union and Labour Relations (Consolidation) Act, and it is an organisation of workers the primary purpose of which is to regulate relations between employers and workers. That is the only definition. Any body that does that is a trade union. So the sorts of organisations identified in these amendments will be trade unions. But, as trade unions, they have consequential obligations. For example, they have to elect their general secretary and their national executive committee by ballot every five years, and so on. So there are consequences to these amendments. By the way, a trade union defined by Section 1 is not necessarily independent. There are independent trade unions listed by the certification officer and non-independent trade unions. “Independence” has a specific meaning under the legislation.

[Baroness Jones of Whitchurch (Lab)]

Phew—I do not know whether I want to join in this philosophical debate because, clearly, we have heard strong views on both sides, and they have strayed way beyond the amendments we are trying to moderate today. But I would say that the Bill overall seeks to find the right balance between workers, unions and businesses, recognising that each has an important role to play. Our aim in the Bill is to modernise those arrangements for the 21st century so that we are not playing “Yah-boo, you did that back in 1953” but are actually looking to the future. We hope that is what the Bill will deliver.

These amendments aim to broaden the provisions in the Bill to allow employee representative bodies or staff associations to collectively agree to modify or opt out of the zero-hours measures. The Bill already allows these collective agreements to be made, but only by trade unions. As we are allowing for modification of statutory employment rights, it is vital that the appropriate safeguards are in place. This includes that only trade unions that have a certificate of independence, and are therefore free from employer control, can agree with employers to modify or opt out of rights, and that rights are guaranteed in exchange and incorporated into a worker’s contract.

I make it clear that staff associations and employee representative bodies, some of which we have heard described this afternoon, can do really good work, and we welcome engagement between employers and workers in all forms. However, we do not think it is appropriate for these associations and bodies to be able to modify statutory employment rights. This is not least because they may not have sufficient independence from the employers—a point well made by my noble friend Lady O’Grady—unlike independent trade unions, which do have that independence and which offer high levels of protection to workers. Furthermore, there is a well-established framework for trade unions, including recognition, independence and incorporation of terms, and the provisions build off these provisions.

I can see that the noble Lord’s amendments suggest a framework of requirements that staff associations and employee representative bodies would need to meet in order to modify or exclude zero-hours rights. These include requirements around independence, recognition, elections and record-keeping.

However, as my noble friends Lord Hendy and Lord Davies have said, the more you incorporate those requirements, the more you add to a staff association or employee representative body, the more similar it appears to be to an independent trade union. Given that the trade union framework is well established, historically and legally, it is not clear to me that it makes sense to establish a similar but different structure just for the purposes of the zero-hours measures. I am grateful to my noble friends Lord Davies, Lady O’Grady and others for reminding us of the hard-won rights that we have achieved through organisations within the trade union movement. Trade unions already serve to protect and advance the interests of workers.

I felt that the noble Lord, Lord Moynihan, presented a caricature of the unions. For every criticism he has, we could come back with all the advantages that trade unions have delivered for working people over the years in pay and conditions and in some of the fantastic campaigns—for example, around the environment, women’s rights, and so on. They have already contributed enormously to modernising workplace rights, so I do not feel that it would be appropriate or proportionate to try to recreate them. The trade unions already provide the constructive dialogue with employers to which the noble Lord, Lord Sharpe, refers, and membership of trade unions remains voluntary for employees.

I say, too, to the noble Lord, Lord Sharpe, that there is a technical issue around all this. If his amendment was accepted as drafted, it would not achieve the aims that he intends. Collective agreements have a specific definition in the Employment Rights Act 1996, which the zero-hours provisions are being inserted into. The definition, referring to the definition in the Trade Union and Labour Relations (Consolidation) Act 1992, provides that collective agreements are ones between independent and certified trade unions and employers’ or employees’ associations, so there would not be scope in the way that the noble Lord has worded his amendment for a wider definition of employee representatives.

We have had a debate which I have a feeling we are going to return to on some of the other trade union issues, but, for the time being, with this set of amendments in mind, I hope that the noble Lord, Lord Sharpe, will consider withdrawing his amendment.

--- Later in debate ---

[Lord Katz (Lab)]

I thank my noble friend Lady O’Grady for that; I would of course be very happy to write to her and my noble friend Lord Watson on this. The point that we are making is that there is already a mechanism in place to upgrade. That does not mean that it is not something that organisations concerned about the limit of compensation can lobby on, but the amendment as tabled is superfluous; it would not add any powers that are not already in law or in the Bill already.

[Lord Hendy (Lab)]

Perhaps I could add something on that subject. I think that my noble friend suggested that there was one overall cap and that consistency was required, which is the point that my noble friend Lady O’Grady has developed. In fact, there is a range. Unfair dismissal is subject to a maximum per week for two years. Redundancy, which the Minister mentioned, is on a different basis; it is, essentially, one week’s pay for each year of employment up to a maximum of 20. Discrimination is dealt with on a different basis altogether, with no cap at all—it is the amount of compensation. So I do not think that consistency is really an answer. A general review would be very helpful, though.

Strikes (Minimum Service Levels: Fire and Rescue Services) (England) Regulations 2024

Lord Hendy Excerpts

Tuesday 19th March 2024 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, these regulations were laid before Parliament on 8 February, following publication of the department’s response to its consultation on implementing minimum service levels for fire and rescue services. Before we get into the detail, I would like to take a moment to pay tribute to all those who work in fire and rescue services: for all that they do, I am extremely grateful.

The services provided by fire and rescue authorities are critical to the safety of the public and the protection of property and the environment. It is therefore crucial that the public remain able to access fire and rescue services when they need them. The overarching aim of these regulations is to help ensure that this happens on strike days. Using powers introduced by the Strikes (Minimum Service Levels) Act 2023, the regulations will allow fire and rescue authorities to issue work notices to ensure that there is sufficient cover to answer all emergency calls and respond to fire-related emergencies as if strike action was not taking place.

The minimum service level for fire and rescue services includes three core aspects. These are control rooms, emergency incident response and fire safety services. Broadly speaking, the responses to the Government’s consultation, including those from the majority of fire and rescue services, were in favour of a nationally set minimum service level, but with a degree of local flexibility. This is reflected in the provisions set out in the regulations.

For control rooms, the minimum service level makes sure that emergency calls are answered and assessed, and resources dispatched to emergency incidents, as if it were a non-strike day. Decisions on the number of staff required to fulfil these functions will be for individual fire and rescue authorities to take.

For firefighters, we have set the minimum service level at 73% of the appliances—by which I mean fire engines and other fire and rescue service vehicles—that would be available if strike action were not taking place at that time. Individual fire and rescue authorities will be able to determine the number of staff required to safely crew and oversee these appliances.

The decision to set this aspect of the minimum service level at 73% is based on detailed modelling, summarised in our consultation response. The modelling calculates the proportion of days over the past five years on which demand exceeded the number of appliances required to meet a minimum service level set at different thresholds. The model identified 73% as the threshold at which every fire and rescue service would have enough appliances available to meet emergency demand on more than 97% of days. In the interests of public safety, we therefore consider 73% the most appropriate point at which to set this aspect of the minimum service level.

Many fire and rescue services also host national resilience assets, which would form an important part of any response to major and significant incidents, such as a major building collapse or a wildfire. It is of the utmost importance that fire and rescue services can maintain these capabilities and keep the public safe. This is why the minimum service level for national resilience assets is set so that they are capable of being deployed as if the strike were not taking place. Like other provisions in the regulations, fire and rescue authorities will consult trade unions and determine the number of staff required to meet this minimum service level.

The third key element of the minimum service level is to provide cover for urgent fire safety issues. Under the regulations, fire and rescue services will be expected to have staff available to rectify any emerging issues that pose an imminent risk to life and so would normally require a same-day response. This could include any significant fire safety issues uncovered at residential or public premises. Individual fire and rescue authorities will be able to determine how much cover will be required for these activities, although we anticipate that the number of urgent fire safety issues emerging on a strike day is likely to be relatively small.

The minimum service level set out in these regulations is designed to balance the ability of workers to take strike action and the need of the public to access essential services. In summary, this is a proportionate step to ensure that public safety is protected on strike days. I beg to move.

[Lord Hendy (Lab)]

My Lords, in the debate on the strikes/minimum service legislation and the regulations made under it, the rationale for the right to strike sometimes gets overlooked. I will cite for your Lordships three very short passages, not from Marx and Engels or Sidney and Beatrice Webb but from the highest courts in the United Kingdom and Canada.

First, I cite a case of the Judicial Committee of the House of Lords from 1942, Crofter Hand Woven Harris Tweed v Veitch, in which Lord Wright said:

“Where the rights of labour are concerned the rights of the employer are conditioned by the rights of men to give or withhold their services. The right of workmen to strike is an essential element in the principle of collective bargaining”.


The second authority that I want to put before your Lordships is a case in the Supreme Court of Canada from 2015, Saskatchewan Federation of Labour v Saskatchewan. In it, the Chief Justice cited an earlier case in the Ontario High Court, with approval, in which it was said that

“freedom of association contains a sanction that can convince an employer to recognize the workers’ representatives and bargain effectively with them. That sanction is the freedom to strike. By the exercise of that freedom the workers, through their union, have the power to convince an employer to recognize the union and to bargain with it … If that sanction is removed the freedom is valueless because there is no effective means to force an employer to recognize the workers’ representatives and bargain with them. When that happens the raison d’être for workers to organize themselves into a union is gone. Thus I think that the removal of the freedom to strike renders the freedom to organize a hollow thing”.

Finally, in a later passage, the Chief Justice said:

“The right to strike is essential to realizing these values and objectives through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse. Through a strike, workers come together to participate directly in the process of determining their wages, working conditions and the rules that will govern their working lives … The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives”.


As your Lordships well know, collective bargaining operates successfully in the fire service, including in relation to incidents that may occur when strikes are called. Those issues are negotiated, as are terms and conditions and—most recently, of course—pay, but the effect of these regulations will be to remove the right to strike for a large proportion of the staff of the fire and rescue service. For example, as the Minister pointed out, 73% of appliances and crew must be available, as on a non-strike day. In my local fire station, there are three appliances, so the application of the 73% rule means that all three must be present, available and fully crewed on any strike day.

In addition to that, 100% of control room staff must be available, as must 100% of the staff whose job it is to work national resilience assets such as high-volume pumps and, I think, aerial ladder platforms. The effect of these regulations will be to diminish the bargaining power of the fire and rescue service’s workers and union, which will result in worsening terms and conditions and will lead to difficulty in retention and recruitment.

The United Kingdom has ratified ILO Conventions 87 and 98, which protect the right to organise and to bargain collectively. They are two of the five fundamental conventions of the ILO, the importance of which the UK recently reasserted in the trade and co-operation agreement it reached with the European Union when leaving. Under Article 387(2) of that agreement, the obligation on the EU and the UK is as follows:

“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards”.


The words

“labour and social levels of protection”

are defined in Article 386 as including the fundamental ILO conventions. Under Article 399(2),

“each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions”,

which it then summarises.

It is clear that these regulations will lead the United Kingdom to be in breach of its international legal obligations. It is true that the ILO jurisprudence permits a state to adopt minimum service legislation, but that is on one condition, which has a number of aspects. First, the minimum service level must be the subject of negotiation between the social partners; secondly, the fulfilment of that minimum level of service in any particular firm or enterprise must be the subject of negotiations between the unions and the particular employer; and thirdly, in the event of disagreement, there must be an established method of resort to either judicial or arbitral resolution of the failure to agree. That applies in all the countries in western Europe.

There is a fourth element to it. Where workers are deprived of the right to strike, such as, in our case, control-room staff, compensatory measures must be adopted by the state which bars the right to strike. The compensatory measures are that the ability to seek arbitration must be speedy, binding, independent and impartial. None of those conditions is available under these regulations or indeed under the Act itself, so I ask the Minister, how can the UK be said to uphold the rule of law in the face of what is a clear breach? How will the Government explain this discrepancy to the European Union?

[Baroness Twycross (Lab)]

My Lords, I declare an interest as London’s deputy mayor for fire and resilience. However, I am speaking in my capacity as a Member of your Lordships’ House.

I have had the privilege and pleasure of over a decade’s involvement in the fire service. Until last summer, this has included being involved with the collective bargaining referred to by my noble friend Lord Hendy, as a member of the national pay negotiating body for fire, the National Joint Council—NJC—which is made up of employers and employees, including the FBU. The NJC is a negotiating body that successfully negotiated a two-year agreement on pay last year, in stark contrast to the Government’s many failures in negotiations in other parts of the public sector. The Government’s failure to negotiate successfully is not a good enough reason to introduce unreasonably restrictive legislation. On these Benches, we are committed to repealing these measures.

Illegal Migration Bill

Lord Hendy Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

Moved by

[Lord Hendy]

42: Clause 7, page 11, line 7, at end insert “so long as P is accompanied by a suitably trained and qualified escort with the powers of a constable”
Member's explanatory statement
This amendment would require a person (who may be a child) subject to removal to be accompanied by an escort trained and employed for this task and with the power of arrest.

[Lord Hendy (Lab)]

My Lords, in moving Amendment 42 I will speak also to Amendments 45, 48 and 85 in the unavoidable absence of my noble friends Lord Davies and Lord Woodley. I have added my name to those amendments.

Clause 7(12) imposes a statutory duty on a captain of a ship or an aircraft, a train manager or a vehicle driver that, on the instructions of an immigration officer, they must prevent a particular person disembarking or they must detain a particular person. These duties go significantly beyond the existing duties on captains of aircrafts and ships in the Immigration Act 1971. If one of those postholders fails to fulfil that statutory duty, Clause 9(2) of this Bill will make it a criminal offence. This new statutory duty and the threat of criminal prosecution are likely to create major problems for the staff involved.

I appreciate that we have been discussing matters of fundamental human rights until now. These are more prosaic issues, but nevertheless significant for those affected. These amendments are designed to alleviate the difficulties caused for the staff to whom the clause is directed. I would be grateful if the Minister would explain precisely how, in the absence of such amendments, these problems will be overcome. I will give the House five examples of issues that might arise and need addressing.

First, all these jobs are safety-critical, and the individuals performing these functions have statutory safety responsibilities. What if those health and safety duties required all the passengers on a ship, train or bus to be disembarked? For example, if a train breaks down, the duty of the train manager is to make the train as safe as possible, disembark the passengers and take them to a place of safety.

The second issue is the problem of identifying the passenger or passengers who are to be prevented from disembarking or to be detained. The captains of scheduled air flights and cruise ships will have lists of crews, passengers and so on, but how is the manager of a crowded train or ferry to find the passenger concerned? The inevitable result is that the entire complement of passengers on the train or bus will have to be detained.

Thirdly, whether the individual is identified or not, the only way of detaining him or her, or preventing them getting off the train, is to keep the doors closed. How will the manager explain to the passengers on a train arriving into King’s Cross from Glasgow that the doors must remain closed until there are security staff or immigration officers to vet the passengers coming off and detain the individual they have identified? What of the consequences to the train operating companies? Are they to be reimbursed for the compensation payable to passengers or Network Rail in the event of consequential delays?

Fourthly, assuming the passenger has been identified by the train manager or coach driver, how will they physically detain them in the absence of any training, skills or desire to engage in physical violence? How and by whom will they be compensated should they be injured?

Fifthly—this is my final example—what will happen if the French driver of a Eurostar arriving into St Pancras, or the Irish driver of a train from Belfast to Dublin, does not keep the doors shut and prevent an individual disembarking? Is it proposed that there will be extradition proceedings if the foreign train manager goes back to their own country? Your Lordships will look in vain for the answers to these very practical questions in the impact assessment.

Paragraph 67 and Annexe A of the assessment deal with extra costs of escorts and other hired staff, but there is not a word about extra payment for the poor souls identified in Clause 7. Paragraph 84 recognises that

“there may be an increase in the level of disruption observed in detention prior to removal”,

but there is not a word about how the Clause 7 staff are to cope with such disruption. Paragraphs 117, 132 and 145 report that the Bill imposes no costs on business, but there is not a word about the costs of, among other things, delays to aircraft, ships, trains and buses as a consequence of preventing the disembarkation of passengers.

No doubt the Minister would wish these amendments not to be pursued, but if so, I would be grateful for his full explanation of how these very pragmatic issues are to be addressed in the absence of these amendments.

[Lord Paddick (LD)]

My Lords, the noble Lord, Lord Hendy, has clearly articulated a whole series of practical difficulties with the duties to be imposed on transport workers. From what the noble Lord said, it appears that the Government have quite clearly not thought through the consequences of the duties they intend to place on, for example, train managers. I will listen carefully to any argument the Minister might have that the duties imposed by the Bill go beyond existing duties but, clearly, subjecting these workers to being potentially convicted of a criminal offence for failing to act in accordance with the Bill, while not providing them with any advice, let alone training or equipment, in order to carry out their duties requires some explanation.

--- Later in debate ---

In summary, there is nothing novel in the provisions in Clauses 7 and 9 as they apply to transport operators. We are simply carrying across the provisions from the Immigration Act 1971, which have operated without difficulty for over 50 years. That being the case, I hope that I have answered all the questions and invite the noble Lord to withdraw his amendment.

[Lord Hendy (Lab)]

My Lords, I am grateful to all those who have spoken in this short debate, which I will not prolong. I will indeed withdraw the amendment, but there is one point which I would wish to pursue.

The Minister says that this is really a reiteration of powers which already exist under the Immigration Act 1971. I am not an immigration lawyer and am not on familiar territory but, as I understand it, the 1971 Act and the schedule to which he referred impose duties on the captains of ships and aircraft to detain or to prevent disembarkation; it does not impose those duties on the managers of trains or the drivers of buses and lorries. That is what is new and what takes us beyond what was formerly there. If I am wrong about that, no doubt the Minister will write to tell me that I am ignorant of immigration law, which I may well be.

However, if it is right that the duties go beyond, in being extended to train managers and bus and lorry drivers, that is quite a serious extension. One thing is clear: train managers, bus drivers and lorry drivers will not be skilled or qualified in detaining people who are accused of illegal behaviour. They will not have the skill set to deal with that situation. What we have not heard from the Minister is how those people are going to deal with that and what will happen if it conflicts with some statutory duty that they have. With that, I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

Banks: Forged Customer Signatures

Lord Hendy Excerpts

Monday 16th January 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

Regarding the national strategy, the noble Lord makes a very good point. I committed at the Dispatch Box that it would be out before the end of last year. However, I can confirm that it is being discussed cross-departmentally and is imminent. If noble Lords are interested, I am happy to set up a briefing so that we can discuss it in greater detail as soon as it is published.

[Lord Hendy (Lab)]

My Lords, the Minister says that the reason for the delay is that fraud is complex. It is, but why is banks forging the signatures of their customers complicated?

[Lord Sharpe of Epsom (Con)]

My Lords, I have not seen the 10,000 pages of evidence in the 26 lever arch files, but expert investigators have, and it is their opinions that we are waiting for.

Public Order Bill

Lord Hendy Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Lord Hendy (Lab)]

My Lords, given the tide of elegant criticism of the Bill this afternoon on principle and in detail, with most of which I agree, I feel somewhat pedestrian in raising a couple of points in a rather narrow compass.

I express my gratitude to the Government in that, if they persist with the offences in Clauses 7 and 8, they will have at least allowed a trade dispute defence. It is quite clear that the offences in Clauses 7 and 8 would be used against trade unionists in a trade dispute, which is defined by the Trade Union and Labour Relations (Consolidation) Act as a dispute about pay, terms and conditions, dismissals and so forth. Clause 7,

“Interference with use or operation of key national infrastructure”,


applies to infrastructure in road, rail, air, harbour, oil, gas, electricity and newspaper printing. It is quite clear that disputes in those industries would be caught were it not for a trade dispute defence. The same is true under Clause 8, which deals with key national infrastructure.

However, I suggest that the defence does not go far enough. It should not be an offence at all for trade unionists to carry out the activities of picketing or demonstrating in pursuance—or “in contemplation or furtherance”, to use the proper phrase—of a trade dispute. The point goes a little further. The trade dispute defence is not available against the powers given to the Secretary of State to bring proceedings under Clause 17 or in relation to Clause 18, which gives the Secretary of State power to obtain injunctions for causing a nuisance or annoyance. The defence should be available in relation to those powers.

Furthermore, the trade dispute defence is not available against serious disruption prevention orders which do not follow a conviction, under Clause 20. Much has been said about this, in particular by the noble Lord, Lord Anderson. Under Clause 20, serious disruption prevention orders can be imposed on a person by a magistrate if that person has on at least two occasions in the relevant period—five years—done a number of possible things, which are all alternatives. Among them are:

“(iii) carried out activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales”


and

“(v) caused or contributed to the carrying out by any other person”


of such activities related to such a protest.

It does not need a lawyer to elucidate that every general secretary and every member of every national executive committee which has authorised picketing that has caused disruption to an organisation, such as Network Rail or a train operating company, could be caught by these provisions and have a serious disruption prevention order made against them, unless there is a trade dispute defence. The Government need to think very carefully about the extension of protection to trade unionists carrying out legitimate trade union activities, in compliance with all the rules and regulations under the 1992 Act, to prevent them being caught by these provisions.

Finally, this does not detract from the force of a protection of trade unionists, but the noble Lord, Lord Beith, pointed out that if acting in contemplation or furtherance of a trade dispute is a legitimate protection against these provisions, why is there not a legitimate protection for others pursuing equally legitimate and justifiable causes, such as those identified by the noble Baroness, Lady Jones?

Police, Crime, Sentencing and Courts Bill

Lord Hendy Excerpts

Consideration of Commons amendments & Lords Hansard - Part 2
Tuesday 22nd March 2022 Lords Chamber

[Lord Hendy (Lab)]

My Lords, in addition to the objections to Motion F that have already been made, I have particular one. I made it earlier in the proceedings on the Bill, and it is the one the noble Lord, Lord Purvis, made a moment ago. It concerns the right to picket. Part 3 deals with demonstrations and freedom of expression generally. The provision that is sought to be reintroduced to the Bill will affect all those things, but will also affect the right to picket

“in contemplation or furtherance of a trade dispute”.

The right to picket is not only protected by Article 10 of the European Convention, concerning freedom of expression, but by Article 11, which protects freedom of association and the right to be a member of a trade union for the purposes of protecting one’s interests. It is a right that has been highly regulated in English and Welsh law for more than 100 years, beginning with the Conspiracy, and Protection of Property Act 1875, which, I point out for the benefit of the noble Lord, Lord Purvis, prohibits pickets picketing domestic houses. The restrictions on the right to picket in English legislation are reiterated in Section 220 of the Trade Unions and Labour Relations (Consolidation) Act 1992, which nevertheless preserves the right to picket in contemplation or furtherance of a trade dispute, but imposes restrictions on it by way, among other things, of a code of practice which extends over 19 pages. In 2016, Parliament sought to increase the number of restrictions on picketing by way of the Trade Union Act.

My submission is a simple one: the right to picket industrially is already sufficiently protected and should be excluded from any restrictions. I accept the justification for excluding all restrictions on the right to demonstrate as set out in the Bill, but if there are to be restrictions, the right to picket should have some exemption. I recall that in Committee, the Minister thought there was some substance to that argument because she introduced an amendment on, I think, blocking strategic highways which contained a particular protection for those engaged in a trade dispute.

If anybody doubts that this will affect picketing, one has only to look at Amendment 80A. It inserts a new subsection (2ZA), which refers to actions that

“may result in a significant delay to the supply of a time-sensitive product … or … may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to … the supply of money, food, water, energy or fuel … a system of communication … a place of worship … a transport facility … an educational institution, or … a service relating to health.”

I remind noble Lords that “a transport facility” will of course include P&O ships. If this provision is enacted, and if RMT and Nautilus International invite pickets to stand at Dover docks to discourage workers from taking their place, or other workers from refuelling or revictualling vessels or discharging cargo, they will not only be subject to all the existing picketing restrictions under UK legislation, but they will be bound not to be noisy. I therefore support the amendment of my noble friend Lord Coaker.

[Viscount Stansgate (Lab)]

My Lords, before we vote on this Motion, I invite Members to consider what the history of our country would have been like if the laws that the Government are proposing had been in place at the time. We are very proud of the development of parliamentary democracy in this country, but I can think of major occasions in the past when major change took place which was quite right and very noisy. Do you think that the Chartist demonstration that took place two miles from here at Kennington was noiseless? Were the suffragettes and suffragists who waged the campaign to give women the right to vote somehow noiseless? They were noisy. Do you think that the poll tax demonstrations were noiseless? They were noisy, and the Government of the day finally realised that it was a mistaken policy. I modestly mention to your Lordships that this legislation will unleash terrible trouble in the future. I do not know what kind or when, and I am not a barrister so I will not benefit personally from any of the legal cases that will arise, but it will cause trouble and it should not be passed.

Police, Crime, Sentencing and Courts Bill

Lord Hendy Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, I do not think that the Government are trying to destroy democracy or steal all our freeborn rights from us, but I do think they are being extremely foolish. The wording of these amendments will create an absolute nightmare for the courts. Sitting here a moment ago I was trying to imagine how a judge would sum up one of these offences to a jury, and what the jury would make of it. It would be a chaotic scenario.

I will say one further thing, on a personal note. I attended both the great demonstrations against the Iraq war in 2002. One of them comprised over a million people, the second around 600,000 people. Those demonstrations would have been in breach of several of these amendments—not just the noise amendment but the various inconvenience amendments on making it difficult for people to get to their bank machines, hospitals and places of work. Under these amendments, those demonstrations would have been illegal. Is that really what Ministers seek to achieve with these amendments? If they do not, this is an extraordinarily foolish piece of drafting.

[Lord Hendy (Lab)]

My Lords, no one likes pickets. Even pickets do not like picketing. However, these clauses impinge on the right to picket, the right to picket is a fundamental aspect of the right to strike, and the right to strike is a fundamental aspect of the right to bargain collectively, which is a fundamental aspect of democracy at work.

Picketing is a highly regulated area of the law in a very sensitive political area. It has been regulated by legislation since 1875 and the last statutory amendment was in the Trade Union Act 2016. There is also a code of practice regulating picketing. There are no exemptions for pickets from either the criminal or the civil law, but these clauses will restrict even further the limited right to picket.

On the issue of noise, other noble Lords have pointed out the vagueness of the concepts involved here, which will impose a great burden on the discretion of the police in deciding what is noisy and what is not. It is notable that legislation has—and workers are very familiar with this—imposed limits on noise by way of decibels and duration in many industries. Those scientific techniques are not used here.

The very purpose of a picket in a trade dispute is to cause

“disruption to the activities of an organisation which are carried on in the vicinity”—

namely, the employer. So pickets will be caught. I note that the amendment states that

“serious disruption to the life of the community”

may include two situations: first, the supply of

“a time-sensitive product to consumers”

and, secondly,

“prolonged disruption of access to … essential goods or any … service, including, in particular, access to … the supply of money, food, water, energy or fuel … a system of communication … a transport facility … an educational institution, or … a service related to health.”

It does not take an expert to know that picketing is put at risk in almost every sector of the economy by these clauses, and it is for that reason that I have added my name to those of the noble Lord, Lord Paddick, my noble friend Lord Hain, and the noble Baroness, Lady Jones of Moulsecoomb, in asking for these clauses to no longer stand part.

[Baroness Neville-Rolfe (Con)]

My Lords, I also believe in freedom and in common sense. There are a number of provisions in this group, including the list we have just heard from the noble Lord, Lord Hendy. Now as I understand it, the Government are responding to the National Police Chiefs’ Council’s concerns. The council feels that, in the new world that has been described by others, public order legislation is not any longer appropriate and does not allow them to respond to the sort of disruptive protest tactics being used by some groups today that perhaps would not have been used in the past. I look forward to the Minister’s response, particularly on the issue of noise, which people have highlighted.

I have two questions to add. First, how will these provisions help against Insulate Britain and what its members have been doing? How will the new arrangements work, particularly the developments as regards juries that others have mentioned? Secondly, I know that there have been concerns about the overuse of delegated powers in this part of the Bill. Indeed, there was an excellent debate in the House last week on that very issue, which some noble Lords were present for. What were the recommendations from the DPRRC and Constitution Committee in this area, and can my noble friend explain how they have been met? My understanding is that definitions of “serious disruption” have now been added to the face of the Bill, which was a concern. But does that meet the concern expressed by our committees?

UK–EU Trade and Cooperation Agreement: Foreign Workers

Lord Hendy Excerpts

Wednesday 10th November 2021 Lords Chamber

Asked by

[Lord Hendy]

To ask Her Majesty’s Government what assessment they have made of the impact of Article 399(5) of the United Kingdom–European Union Trade and Co-operation Agreement; and what steps they are taking in respect of the regulation of dues and charges payable by foreign workers or their employers.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, Article 399(5) obliges parties to effectively implement provisions of the Council of Europe Social Charter that they have accepted. It does not impact their ability to choose or amend which provisions they accept. Article 18(2) of the charter relates to simplifying, reducing or abolishing fees for workers or their employers. The UK has denounced this provision. From February 2022, charges for work visas payable by all foreign workers and their employers will be harmonised.

[Lord Hendy (Lab)]

My Lords, on 12 July the Foreign Secretary wrote to the Secretary-General of the Council of Europe, giving notice that with effect from 26 February 2022 the UK would denounce Article 18(2) of the European Social Charter 1961, which it had ratified 59 years earlier. That provision committed the contracting parties to simplify existing formalities and to reduce or abolish chancery dues and other charges payable by foreign workers or their employers. Deratification of that obligation may not be sensible in view of our shortage of lorry drivers but, more importantly, how can it be lawful? Perhaps the Minister will say that the Government overlooked the provisions of Article 399(5) of the Trade and Cooperation Agreement in attempting to denounce the provisions of the charter that it had already accepted.

Police, Crime, Sentencing and Courts Bill

Lord Hendy Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Hendy (Lab)]

My Lords, I add my compliments on the maiden speech of the noble Lord, Lord Sandhurst. I had the pleasure of knowing him at the Bar. He will be a great asset to your Lordships’ House.

The noble Lord, Lord Blencathra, forcefully amplified the Delegated Powers Committee’s serious criticisms in its report published yesterday. I am privileged to serve on that committee under his excellent chairmanship. I want to amplify just one point. In its report, the committee contends that Clauses 55, 56 and 61 are inappropriate in that they surrender the power to define the meaning of certain phrases to delegated legislation, which is not subject to the full scrutiny of primary legislation. The noble Lord, Lord Blencathra, emphasised that our committee took no position on the substantive provisions but recognised that they are contentious and should therefore be on the face of the Bill.

Let me touch on why those provisions might be contentious. Among other things, these clauses give powers to a senior police officer to impose conditions on a procession or assembly where the officer reasonably believes that noise generated by persons taking part may result in

“serious disruption to the life of the community”

or

“serious disruption to the activities of an organisation which are carried on in the vicinity of a public procession”

or “assembly”. The Bill does not define either phrase. Instead, it gives power to the Secretary of State to do so by regulation. Surely this is an abuse of parliamentary democracy. Where the words of primary legislation are to have a particular meaning, they should be set out on the face of the Bill; this would enable us to debate the proposed meaning properly.

In fact, we have a draft of such regulations in relation to the meaning of one phrase but not the other. The phrase defined in the draft regulations is

“serious disruption to the life of the community”.

The draft regulations provide:

“It may be regarded by the senior police officer as serious disruption to the life of the community if there is … a significant delay to the supply of a time-sensitive product impacting on the community, or … prolonged physical disruption to access to essential goods and services impacting on the community.”


They go on to say that

“‘time-sensitive product’ includes newspapers and perishable items … ‘essential goods and services’ means … the supply of money, food, water, energy or fuel … a system of communication … a transport facility … a place of worship … an educational facility … a service relating to health, or … another critical public service.”

It is quite clear that this will mean that the police may impose conditions on those legitimately, but noisily, picketing their place of work to persuade others not to work during a lawful industrial dispute where the workplace is involved in food, water, power, railways, buses, planes, ships, newspapers, mail, TV, radio, film, education, health, local government, civil service or other critical public services. It is hard to think of workplaces which will not be included.

The law on picketing is already highly regulated by statute. It has been so since the Conspiracy, and Protection of Property Act 1875—146 years ago. It has many times been restricted, most recently by the Trade Union Act 2016, but this emaciated right to picket peacefully

“in contemplation or furtherance of a trade dispute”

still remains. This Bill will give the police the power to effectively extinguish it in many sectors.

Some of your Lordships may well think such further restrictions highly desirable; others will oppose them. Let us have the debate on the basis of meanings set out on the face of the Bill, not ones yet to be determined and then tucked away in secondary legislation which avoids all but cursory parliamentary scrutiny and which we cannot amend. I ask the Minister to amend the Bill by including in it the definitions which she desires.

Domestic Abuse Bill

Lord Hendy Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 27th January 2021 Lords Chamber

[Lord Hendy (Lab) [V]]

My Lords, it is a privilege to follow my noble friend Lady Chakrabarti. Like her, I wish to speak to Amendments 152 and 190. The justice of the case for these amendments has been set out in the passionate, eloquent and comprehensive speech of my noble friend Lady Lister of Burtersett, and the equally powerful speeches of the noble Baroness, Lady Chakrabarti, and the other Lords who have spoken in this group. I cannot improve on what they said, but I simply wish to raise one matter of policy.

The cost of accommodation does not count towards the benefit cap if the survivor secures temporary accommodation provided by the local authority under its homelessness duty. Nor does it count if the survivor manages to find a place in a refuge or hostel owned by a social landlord. Currently, if the survivor moves into ordinary rented accommodation, the benefit cap will apply. That obviously means the amount on which the survivor and her children have to live on is diminished, often significantly. That is not good for the survivor and her children but it is also bad policy, which could be reversed by the adoption of these amendments. The amendments, if adopted, would free up refuges, hostels and local authority accommodation, all of which is currently in very short supply. It would also facilitate those who have secured such accommodation, moving out and into the private sector for rented accommodation, which is often cheaper overall. I hope those reasons, in addition to the reasons of justice advance by my noble friends, will persuade the Minister to adopt the amendments.

[Lord Best (CB) [V]]

My Lords, I have added my name to Amendments 152 and the related 190, which provide for a period of grace before those who have to leave an abusive relationship become subject to the cap on their benefits. I am honoured to be addressing this issue alongside the noble Baroness, Lady Lister, who is such a wonderful campaigner on social security issues, and also the right reverend Prelate the Bishop of Manchester. Perhaps I could take this opportunity to extend my own welcome to the right reverend Prelate, who is already proving such an asset to your Lordships’ House, not least with his extensive knowledge of the issues of housing and homelessness. The issue covered by Amendment 152 is, in large measure, about housing and housing costs. I declare my interest as chair of the Affordable Housing Commission. I thank the Chartered Institute of Housing for its briefing on this amendment.