Strikes (Minimum Service Levels) Bill

Debate between Lord Hendy and Lord Collins of Highbury

Consideration of Commons amendments
Thursday 20th July 2023 Lords Chamber

[Lord Hendy (Lab)]

My Lords, in form, this skeleton legislation with its Henry VIII powers defies every legislative principle, as the Delegated Powers and Regulatory Reform Committee, the Secondary Legislation Scrutiny Committee and the Select Committee on the Constitution have reported. As to content, the less said the better. Although the Government’s impact assessment was held by the Regulatory Policy Committee to be not fit for purpose, it contains the revealing analysis that, far from obviating the disruption that strikes inevitably cause, the Bill

“could mean a general increase in tension between unions and employers. This may result in more adverse impacts in the long term, such as an increased frequency of strikes for each dispute”.

No doubt that is part of the reason why employers, as well as trade unions, have opposed the Bill.

This House tried to redeem the Bill with amendments to protect workers from unfair dismissal and unions from damages and injunctions, as required by international law, but the Government’s majority in the other place rejected them. This House, in its latest modest amendment, sought to mitigate the Bill’s excesses by requiring consultation before regulations were made, but even this was rejected by the other place on Monday.

The fact is that the Bill abridges the right to strike, a right established by many international treaties to which the UK adheres. A letter written by the general secretary of the European Trade Union Confederation to the Secretary of State the day before yesterday sums it up. She said:

“It is clear that the Bill introduces provisions which weaken or reduce existing law in relation to the protection of the fundamental right to strike and which do not respect or implement ILO Convention 87”.


The Joint Committee on Human Rights said the same thing. The letter points out the specific respects in which the Bill fails to meet ILO conditions for permissible MSL legislation. Among its list of non-compliances, the letter points to the absence in the Bill of: any requirement for trade union and employer dialogue in the setting of MSLs; any obligation on the employer to negotiate an agreement with the trade union about service levels; and any independent adjudication mechanism in the event of a failure to agree.

Your Lordships’ amendment would have gone a long way to rectify these non-compliances without such remedial action. As ETUC points out, the UK will not only be in breach of ILO Convention 87 and paragraph 4 of Article 6 of the European Social Charter, but it will also violate Articles 387 and 399 of the trade and co-operation agreement. However, the Government have a problem with consultation with the social partners. Just a week ago, the High Court held that the purpose of the statutory obligation to consult before making regulations under the Employment Agencies Act was that:

“Parliament can then proceed on the basis that the case for the measure has been tested with interested parties in the sector and that their views and interests have been taken into consideration in fashioning the draft regulations which are laid before it”.


The Government’s failure to consult was, the court held,

“so unfair as to be unlawful and, indeed, irrational”.

Less than a month ago, the relevant ILO committee told

“the Government to provide information to and facilitate the dialogue between and with the social partners with a view to … improve consultation of the social partners on legislation of relevance to them”.

Of course I accept that the undertaking by the noble Lord to introduce a code of practice imports a duty to consult, but such consultation is apparently limited solely to the issue of reasonable steps. It does not require the social dialogue that compliance with international law does. In truth, as was said by Mick Whitley MP in the other place,

“no number of amendments could ever salvage this Bill”.—[Official Report, Commons, 17/7/23; col. 721.]

That is why the Labour Party is committed to repealing it.

[Lord Collins of Highbury (Lab)]

My Lords, I thank the Minister for his comments. I appreciate his ability to be brief, but sadly I do not think I will be able to be as brief as him on this occasion because there are, as my noble friend Lord Hendy has just raised, a number of issues outstanding.

This House acknowledged, I think from all sides, that this is a skeletal Bill. It is an example of legislating and then determining policy and procedure. It is really the wrong way around. There is not a proper process of consultation, as my noble friend has just outlined. I repeat the intention of a future Labour Government to repeal the Act because it does not have the support of workers’ representatives or employers. It is impracticable and will simply result in not achieving the objectives of the Bill the Government set out, while worsening the situation in industrial relations. Even the Government’s own impact assessments have said it could possibly increase strikes.

The position on the Bill has been one, in this House, of principled objections to the methodology used and the practical application. I stress the importance, when Parliament is starved of the ability to properly scrutinise legislation that impacts on fundamental human rights, as in this case, of the fact that we have a duty in this House to keep reminding Parliament of that situation. My noble friend highlighted that the International Labour Organization’s Conference Committee on the Application of Standards called on the Government to ensure that existing and prospective legislation conforms to the article he mentioned. The Minister has said in the past, “That’s all right because we will ensure that this legislation will conform”. I am not sure, and I do not think employers or union representatives have any confidence, that that will be the case.

What this House asked the Commons to consider was precisely what the ILO is asking the Government to do anyway: to undertake genuine consultation before implementing minimum service regulations. That means that, when regulations are published, they include an impact assessment and there should be genuine consultation, including on the protection for workers named in work notices and the reasonable steps that trade unions need to take to ensure compliance. The consultation on the selected sectors has taken place, which we have not seen the results of. We will not see those results before the Bill is enacted. Again, that is outrageous in my opinion.

On the reasonable steps the noble Lord has referred to, we have, rather late in the day, heard a Minister saying that a new code of practice will be brought forward. This is certainly an improvement on the Government’s previous position that it was for courts to decide what reasonable steps are—so unions would not even know until challenged in the courts what they may be required to do. However, we are told that the code will be subject, using existing powers, to statutory consultation, including consultation with ACAS, and the approval of Parliament. The Minister in the other place said:

“The consultation will give trade unions, employers and any other interested parties an opportunity to contribute to practical guidance on the steps that a union must take”.—[Official Report, Commons, 17/7/23; col. 713.]


What is the timetable for this? I take that Minister’s words as not simply meaning the obligation to consult ACAS without a timeframe. I hope that we will not see a rushed consultation over the August holiday period. If that is the plan, it will make a mockery of that process and people will fully understand the true intent of this Government.

I seek assurance from the Government that there will be a proper timetable. I remind the noble Lord the Minister that, on 23 January the Government announced strong action against unscrupulous employers which use the controversial practice of fire and rehire through a planned statutory code of practice. That announcement followed ACAS guidance to employers a year before. The consultation announced on 23 January ran for a period of 12 weeks, with views sought from not only interested groups but from the public. Parliament has the right to be satisfied that union workers and the public will be given the same consultation rights and period for the statutory code under the Bill as given for the fire and rehire one. We are entitled to know today that this is what the Government will do.

As my noble friend highlighted, last week the High Court said, in relation to the consultation process for the regulations that allowed agency workers to break strikes, that

“this is not a case in which the evidence is that the proposal had obvious and undisputed merit based on cogent evidence, and enjoyed strong support from representative bodies in the sector”.

It could have been talking about the Bill—and no doubt in time it will be. I hope the Minister fully understands the position of these Benches. I hope he also fully understands that the concern I have expressed, and my noble friends have expressed, is not just restricted to this side. All sides of the House fully understand the importance of protecting fundamental freedoms and Parliament having the proper opportunity to scrutinise legislation, which we have not had in the case of the Bill. I will not repeat all the objections made by the committees my noble friend referred to; they are on the record. But I hope the Minister, in his response, will be able to give us a full explanation of what he intends to do in terms of the consultation on the code of practice.

Retained EU Law (Revocation and Reform) Bill

Debate between Lord Hendy and Lord Collins of Highbury

Report stage
Monday 15th May 2023 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I will not detain the House too long. In this amendment we have tried to reflect the structure that we have just agreed in relation to the environment. This is not about blocking change. The Minister said that we are in danger of creating immutable legislation. That is not the case. We are in a unique situation here in terms of regulations that are going to be changed in a way that does not have the same sort of parliamentary scrutiny as primary legislation. That is the difference. It is unique, and therefore it needs a proper, unique response to it in terms of the three elements on which the noble Lord, Lord Krebs, focused.

The first of course is non-regression. We should understand the ambitions of this Government in relation to workers’ rights. I have heard from Ministers throughout this Bill and also in other debates that they are committed to defend and extend workers’ rights. I think we need that ambition to be translated into proper processes and procedures in relation to the unique circumstances where regulations can be removed, revoked or revised simply by Ministers producing statutory instruments.

The other element, which again the noble Lord, Lord Krebs pointed out in relation to the environment, is proper consultation. If changes are envisaged, how do we consult the appropriate bodies? We have a government agency that has huge experience in terms of regulations and codes of practice that ought to be properly consulted in relation to any changes, and of course we have stakeholders in terms of employers and unions. And by the way, this is not a debate about whether one should support workers or employers. Everyone wants proper standards. Employers themselves want proper standards. When we come to the international agreements that this Government have signed up to, in particular trade agreements, that level playing field is going to be a really important element in maintaining those agreements and extending them, so there is a very strong economic case for supporting this amendment.

We also need to ensure that trust and confidence are put back into the system. We hear Ministers suggesting that somehow regulations are a burden on employers, but sometimes those burdens are the thing that can provide and guarantee the level playing field that we have argued for and supported.

We talk about the ambition of this Government but we are still waiting for the long-awaited employment Bill, which I hope at some stage we will see brought forward. This is about ensuring that we do not turn the clock back—that we maintain the proper standards. As a shadow spokesman for foreign affairs, I work with government Ministers in defending and advancing the rights of workers across the globe. We are the strongest advocate of that, so the one thing that we should not do is turn our backs on workers at this moment in time. If Brexit is to mean anything, it should be about putting rights back into this Parliament and making sure that workers are not at the end of the queue but very much at the front. I beg to move.

[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.

Strikes (Minimum Service Levels) Bill

Debate between Lord Hendy and Lord Collins of Highbury

Committee stage
Thursday 9th March 2023 Lords Chamber

[Lord Hendy (Lab)]

I will not repeat what I said earlier today, but it is quite clear that the ILO in particular imposes conditions on minimum service levels that this Bill does not comply with. That is the difficulty for the Government.

[Lord Collins of Highbury (Lab)]

Those countries do not sack workers in these circumstances. We could end up with nurses and teachers being sacked.

We are led to believe that the Bill is a legal provision that will give incredible powers to Secretaries of State across a wide range of industries. Actually, the Minister did not address the question of aviation that the noble Lord, Lord Balfe, and I raised. It makes no sense that that sector, in this broad way, has been put in the Bill. Surely, as my noble friend said, the Transport Strikes (Minimum Service Levels) Bill would have attracted detailed scrutiny about how minimum service levels would operate and how to legislate for them in the railway industry. I have a sneaking suspicion that it was deemed that, “This won’t work; it will be too politically difficult and have too many legal implications. Let’s just give ourselves the power, and then we can determine through the comfort of secondary legislation how we might threaten this and implement it.”

At the end of the day, we will be able to scrutinise other elements of this Bill regarding how the minimum service levels will be set. It has been an interesting exercise today to scrutinise the generality of why these six sectors were picked but also to go through each one separately; we have been able to better understand the range of opinion within the Government and different government departments. I still think that, while the noble Lord, Lord Callanan, can hide behind the legal definition that it will be the responsibility of the employers, everyone out there knows that it will be this Government who will be telling employers to introduce these minimum service levels. The Government will therefore have to take responsibility and be accountable for the mess that they create. I beg leave to withdraw the amendment.