Strikes (Minimum Service Levels) Bill

Debate between Lord Thomas of Cwmgiedd and Lord Allan of Hallam

Report stage
Wednesday 26th April 2023 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will move an amendment on a very short point and I am grateful for the support of the noble Lord, Lord Allan of Hallam. The schedule to the Bill sets out the procedure for giving a work notice and the Explanatory Notes say that it is intended to show

“how work notices are to operate”.

Subsection (7), for example, requires consultation with the unions. However, the critical point which emerged in Committee was the nature of the obligation on an employer to give a notice. Did the employer have to issue a notice? Was it entirely voluntary or was there something subtle in the middle? It all turns on the meaning of “may”—a good point for a lawyer possibly to take.

It is accepted that “may” does not mean “must”, although sometimes courts interpret “may” as meaning “must”. The question arose as to whether it meant that an employer was free to decide voluntarily what to do, given the impact it might have on his relations with the staff, or whether the position was more complex. I drafted Amendment 3 to make it clear that it was to be entirely voluntarily and sent it to His Majesty’s Government. Their response on “may” was clear. The Government’s letter said:

“The Bill does not place any direct obligation on an employer to issue a work notice. Rather, it gives employers a statutory discretion whether … to do so. This is right given that they are closer to the day-to-day operation of their services”.


It went on to explain the complexity, saying that

“where an employer is a public authority, they will need to consider their overarching public law duties. Employers will also need to consider if they have any contractual or other legal obligations that they need to comply with”.

There is no point in debating whether His Majesty’s Government are right in the interpretation of “may”; that must be for the courts to decide. But let us assume they are. There are a number of consequences. First, there is a process to be gone through by the employer—although it is not in the Bill, despite what the Explanatory Notes say. Secondly, if an employer has contractual obligations, it will have to examine what those are. If an employer is a public body, it would have to consider its public law duties, spelled out in legislation and government directions. As regards public law, it would no doubt be prudent to consult the relevant Government.

The employer would then have to weigh up the damage the notice might cause to staff relations and the provision of services in the future. There might be other considerations. It will be a difficult decision for employers in England and they might be pressurised, either by an injunction or a judicial review. We must emphasise that the courts are now likely to come into this.

In Wales and Scotland—assuming the Bill applies to them—there would be a further layer of uncertainty because they would be subject to Welsh and Scottish primary legislation and the views of their Governments. How could it be expected that public bodies in those two nations and devolved areas should be responsible for working out what their duties were?

I had hoped for one of two things: either the Government would accept my amendment—but it is plain they will not—or they would set out the considerations and put them into the statute. But they have not done that either.

I will therefore move this amendment, but I do not intend to seek the opinion of the House for two reasons. First, if His Majesty’s Government are right on the meaning of “may”, there really are contentious points of law for the courts in defining the employer’s obligations in the different contexts of hospitals, teachers and railways. This is most unfortunate. Secondly, the Bill should be clear and spell out the decision in the way the Explanatory Notes said it should be done but, as I said in Committee, this Bill is the epitome of legislation first, policy second—a total reversal of the proper policy. I beg to move.

[Lord Allan of Hallam (LD)]

My Lords, I support the amendment in the name of the noble and learned Lord, Lord Thomas, to which I have added my name. A benefit of the Committee stage in this House is that it allows us to identify concerns that may not have been apparent when a Bill was first introduced. It is through that process of analysing how legislation will work in practice, informed by the experiences that noble Lords bring to this place, that we can flush out those unintended consequences. On a good day, the House having flagged something that is a reasonable area of concern, the Government will provide us with clarifications that show that our fears are misplaced and that all will be well. On a really good day, a Minister will acknowledge that we have identified a genuine problem and set out a path to fix it. We have just had an example of that on the previous amendment.

I believe we have done our job and identified a real gap here between the Government’s rhetoric that employers will not be mandated to issue work notices and what may happen in practice, yet the Government have so far failed to provide either a clarification that our concerns are unfounded or an acknowledgement that we have identified a real issue that they intend to fix before the Bill becomes law. In this amendment we are presenting a way to demonstrate the kind of fix that we think is needed, not to undermine the Government’s intentions in respect of the legislation writ large, but rather to ensure that it works as they themselves have said they wish to happen.

My concern is quite specific. It is that employers will be advised that they expose themselves to significant legal risk if they do not issue work notices, even where they feel that they would be counterproductive to their efforts to negotiate with their employees. The circumstances under which they may feel this compulsion are not fantastical but all too apparent if we look at broader trends in litigation. We do not have to stretch our imagination too far to see somebody suing an NHS body that chose not to issue work orders, alleging that their treatment could have been delivered if it had; a student taking action against an educational institution on the basis that it did not order teaching staff to turn up during strike days; or businesses suffering disruption as a result of transport strikes going after train operators, claiming that more service could have been provided.

Some noble Lords may have sympathy with this approach and think, “Good; if employers feel compelled to issue work orders, the Bill is working”, but the Government have said repeatedly that the work order should be voluntary and that this is not what they intend. If they wish to make work orders compulsory, they should have the honesty to say that in the Bill. They would be de facto mandated because of the threat of litigation, and if the Government do not wish that to happen, they should agree to our amendment to make that clear to employers.

It seems far from ideal to leave this confused, with the extent of compulsion in practice decided on the basis of an assessment of the threat of legal action. I fear that the Government will argue, as the noble and learned Lord, Lord Thomas, has already indicated, that this is an acceptable state of affairs and that they do not intend to change the legislation, but I hope that noble Lords will see the force of our arguments and will support Amendment 3.