Strikes (Minimum Service Levels) Bill

Lord Patel Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

While the Bill sets out to promote a minimum service level, which will be delivered by named individuals, the consequences of the service level that we see in the NHS and what should be delivered as a minimum service level, or of what we see in fire and rescue services—we can equally spread that into signalling services in transport—mean that the Bill is effectively banning the right to strike. This Government usually have a workable majority in the Commons; they are fully entitled to bring forward a Bill that bans the right to strike. We in this House would then be in place to review that. The shame here, however, is that the Bill creates powers that would, in effect, ban the right to strike and it is dressed up as something completely different. The issue of minimum service levels conflated with that of current service levels is the crux of determining how many people, if any at all, would actually be allowed to strike under this legislation. I beg to move.

[Lord Patel (CB)]

My Lords, I will speak to my Amendment 18. Much of what I have to say will resonate with what the right reverend Prelate the Bishop of London and the noble Baroness, Lady O’Grady of Upper Holloway, had to say. I am also grateful to my noble friend Lord Kakkar for adding his name to it. My amendment seeks to explore the logic of defining minimum staff service levels in healthcare, without first having a benchmark of what is an appropriate level of staffing that fulfils the needs of patient care and patient safety.

While this Bill is not about rights and wrongs of strike action, I will express my personal view that, as a doctor, I would never have withheld my service, no matter the circumstances. This Bill grants the Secretary of State powers to make minimum service regulations during a strike across several sectors, including health services. I will speak only regarding health services, as “health services” are not defined in the Bill, which makes the legislation very broad in scope. “Minimum service levels” are also not defined in the Bill but will be defined by the Business Secretary after consultation.

The focus of my amendment is patient safety. Legislation that imposes minimum service levels inevitably means a reduced number of staff expected to provide the same level of care. How can that not compromise patient safety? We seem to have forgotten the lessons from the Francis report, the Kirkup report and the Ockenden review—to mention some—all of which commented on patient harm caused by lack of staff. We are all aware that the health and care service is currently under immense pressure, as has been mentioned several times. There are unprecedented levels of workforce shortfall—around 10% of the total workforce—leading to 130,000 vacancies with over 50,000 vacancies in nursing alone. Staff are exhausted, morale is low and employers are having to pay out huge sums of money in agency fees.

My amendment prevents the Government introducing minimum service levels for health, unless they have, via primary legislation, first set out the appropriate legally enforceable staffing levels for health services on non-strike days. Without this, how can the service or, importantly, the patients know that care with reduced services at a minimum level is safe and will not result in patient harm? Daily, patient safety is compromised as a result of staffing problems. The NHS should be safely staffed every day of the week, as has been mentioned.

Is it even possible that minimum levels of service prescribed at national level could be universally applied? There are huge variations in the intensity and complexity of healthcare provided from one health region to another. Both Scotland and Wales have a legal requirement for services to be safely staffed. Why are the Government reluctant to legislate in a similar way in England? Health professional organisations, including the British Medical Association, the Royal College of Nursing and the Royal College of Midwives, have repeatedly called for this. We have debated this several times in this Chamber. Imposing minimum service levels, defined by the Secretary of State for Business, may end up having an effect that the Government do not want—being forced to legislate by courts for appropriate levels of staffing in healthcare.

While minimum service levels can be defined in some areas of healthcare, it is impractical to do it in clinical areas such as maternity, intensive care, A&E, acute surgical and medical care, to name but a few. In the debate on the group beginning with Amendment 3, the noble Lord, Lord Markham, suggested that health services in this Bill will be interpreted as life and limb services. If that is the case, it needs to be redefined in the Bill by a government amendment. In my 40 years of practice, life and limb situations meant all hands on deck; there was no such thing as a minimum level of service.

What assessment have the Government made of the effect that work notices will have on employer-staff relationships? Who would be blamed if there is a patient safety issue? There are no details in the Bill on what would happen if minimum service levels were not met on non-strike days. I have no doubt that the noble Lord, Lord Kakkar, will speak in greater details about the unintended consequences of this. I hope the Minister will comment on what assessment the Government have made of possible legal consequences if services are staffed below the minimum prescribed level.

I fear that, in a rush to get the legislation through, there has been no thought given to how minimum service levels can be defined in clinical risk areas in the absence of first legislating on what is an appropriate staffing level and the risks to patient safety. As I mentioned, the Minister on the previous group, the noble Lord, Lord Callanan, already referred to the minimum service levels as “life and limb”. I hope the Government give further thought to appropriate safe staffing levels on non-strike days before bringing in any minimum service levels in clinical areas. I look forward to the Minister’s comments on the issues I have raised.