Strikes (Minimum Service Levels) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Thursday 23rd March 2023 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I will speak to the amendments in the group starting with Amendment 14 in the name of my noble friend Lord Fox. This group is all about devolution. The Government have hyped up their commitment to devolution in England, so Amendment 14 is in line with the proposals in the levelling-up Bill and in Bills on the powers of existing mayoral authorities. In England, an increasing number of those have great powers over transport—for example, bus franchises—so it is logical that elected mayors should be consulted by the Government before they intervene with minimum service levels.

I move on to Amendments 19 and 49 in my name, which refer to the much stronger devolution that has existed in Wales and Scotland and, we hope, will be returned in Northern Ireland in due course. Amendment 19 refers to Part 1 of the Schedule, which relates to minimum service level regulations that may be applied by UK Government Ministers to the list of services specified in the Bill. The key point is that most of these services—health, fire and rescue, education and most of transport—are devolved. Only the decommissioning of nuclear installations, management of radioactive waste and so on, and border security are reserved matters falling to the UK Government. Once again, we have this Government riding roughshod over the core business of devolution. Even border security could be argued to be a very legitimate interest to the devolved Administrations. For example, the Welsh Government owns and runs Cardiff Airport, and that would clearly be directly affected if there were a dispute with border security staff. Similarly, the safe and efficient operation of the several very important and significant Welsh ports is of direct concern to the Welsh Government. In practice, you could not impose a minimum service level without consultation and close co-operation.

I need to point out here that the Welsh Government have a much more positive relationship with public sector trade unions than that between the UK Government and trade unions in England. Although they have not totally avoided strike action in Wales recently, it has certainly been much less intense and acrimonious. The Welsh Government have adopted more of a social partnership approach, and we have seen none of the provocative rhetoric that we have seen in England.

Amendment 19 is very modest: it simply asks for an obligation for proper consultation with Welsh and Scottish Ministers before regulations are made. It reflects similar provisions in the Civil Contingencies Act 2004. It specifies that a senior Minister of the Crown should undertake this consultation because we have lately had repeated evidence that this Government have failed to interact at the appropriate level with Ministers in the devolved Administrations, whom they seem, on occasion, to regard as insignificant juniors. Very recently, in the debate on the retained EU law Bill, we were repeatedly referred to officials as the appropriate level for such links. If the UK Government decide to intervene to specify minimum service levels for devolved services, that is a political decision, and the very least that they should do is ensure that Ministers take the lead in that political process.

Quite apart from the need to respect devolution, there is considerable scope for confusion if the UK Government decide to define what they regard as an MSL without close liaison with the devolved Administrations. Let us take health as an example: waiting times for treatment are defined differently in Wales and England, as are ambulance response times, so one size definitely does not fit all. The very simple Amendment 49 takes a much more radical approach. By leaving out “Wales and Scotland”, it would limit the extent of the Bill to England. That would reflect the points that I made previously: most of the public services specified are devolved, and even those which are not have a close interaction with devolved services.

During the pandemic, for instance, we became acutely aware of the differences in organisation and ethos between the UK Government’s approach and that taken, for instance, in Wales, but which I also observed in Scotland. There are plenty of stresses in the delivery of Welsh public services. I do not defend the current standard of some of those. They are under acute stress. If this comes to a head in the form of strikes, it is unlikely that dictation from the outside by the UK Government will help the situation.

Finally, I remind noble Lords that the UK Government are just the Government for England when we talk about strikes in schools or in the NHS, for instance, and other services specified in the Bill.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I speak in support of Amendment 49. All the points arise in relation to it, so I do not think it necessary to go into the other amendments. I will make six points.

First, I do not believe that it is contested that a number of the services covered by the Bill are effectively within the control of the Governments of the nations of Scotland and Wales, and that is reflected everywhere in the consultation that has so far been made. However, when you take that, you have to consider whether you can disentangle services during periods of strikes from services elsewhere. On our previous day in Committee, the noble Lords, Lord Kakkar and Lord Patel, eloquently put why it is quite impossible to disentangle them. What I simply do not understand at the moment is why, if you have a minimum standard on a strike day, that is not the minimum standard across all these areas on every other day. How can the public be expected to think that in strikes there is a minimum standard? There is not.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I thank the noble Lord, Lord Fox, and the noble Baroness, Lady Randerson, for their amendments. Amendments 14, 19 and 49 relate to devolved matters, either via devolved Governments or local government. Amendment 14 seeks to require the consent of elected mayors before minimum service levels could be set in an area for which an elected mayor is responsible. The noble Baroness, Lady Noakes, is right to point out that this is unworkable. Consultations have been published on minimum service levels for ambulance, fire and rail services, and we welcome the engagement of elected mayors on those consultations. Similarly, Amendment 19 seeks to require consultation with Scottish and Welsh Ministers before minimum service level regulations are made in Scotland or Wales, with a view to reaching an agreement. Amendment 49 seeks to limit the territorial extent of the Bill to England.

The noble Baroness, Lady Randerson, raised concerns about the impact of this legislation on devolution, and this is an important issue. However, employment rights and duties and industrial relations are reserved in Scotland and Wales. That said, I reassure her and the noble and learned Lord, Lord Thomas of Cwmgiedd, that my noble friend the Minister met both the Welsh and Scottish Governments to discuss the Bill.

The Government have a duty to protect the lives and livelihoods of citizens across the United Kingdom. The disproportionate impacts that strikes can have on the public are no less severe on people in Scotland and Wales or on those living in areas with elected mayors. They have every right to expect the Government to act to ensure that they can continue to access vital public services during strikes.

The Government therefore resist these amendments. However, as I said earlier, nothing in the Bill requires an employer, which might include a devolved Government or an elected mayor, to issue a work notice. That would include the example of Cardiff Airport that the noble Baroness cited.

[Lord Thomas of Cwmgiedd (CB)]

On that point, which is repeatedly coming up, would the noble Baroness be able to assure the Committee that we can have a clause in the Bill—because courts sometimes interpret “may” as meaning “shall”—that makes it very clear that no legal obligation whatever rests on any person whatever to implement the minimum standards set out in the Bill, unless the employer decides to implement a notice? If the case the Government are making is that the Bill has no effect unless the employer does something, that needs to be spelled out with crystal clarity. If the Ministers would like, I will have a go at drafting a clause to save the overburdened so-called parliamentary counsel.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I repeat at the Dispatch Box that under the Bill it is a statutory discretion and not a statutory duty for employers as to whether to issue a work notice. It is a matter for the employer to consider any contractual or other legal obligations it has in taking this decision.

We of course hope that all employers will want to apply minimum service levels where they are needed. In reference to the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, I say that, before making minimum service level regulations, government departments need to consult on the appropriate minimum service for their sectors. This will enable detailed evidence to inform the development of minimum service levels in specific services. This includes understanding the differences between services in each sector across Great Britain and the implications for setting minimum service levels. We will continue to engage with the devolved Governments on the geographical scope of the regulations.

The noble Lord, Lord Collins of Highbury, is correct that of course we would rather have a negotiated agreement on minimum service levels. I also reiterate, in response to the question from the noble Baroness, Lady Finlay, on why my noble friend was shaking his head, that we think there has been a misunderstanding. There is no statutory duty but, as I said, rather a statutory discretion under the Bill for employers to issue work notices.