Strikes (Minimum Service Levels) Bill

Baroness Chakrabarti Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

[Lord Cashman (Lab)]

My Lords—

[Baroness Chakrabarti (Lab)]

My Lords, I wonder whether I could speak, because I will respond directly to the noble Baroness opposite. To be clear, I support all the amendments in this group, but I will tailor my comments in direct response.

Essentially, there were two comments about the Joint Committee. The first was that its language was too moderate to be taken seriously. I disagree in principle with the proposition that the fact that the report was not “damning”, as opposed to concerned or critical, should somehow undermine the value of that commentary. The Joint Committee is to be praised for its constructive tone in matters of industrial relations—if only everyone did the same.

Crucially, on the issue of who the arbiter is, I think it a bit rich for people who spend a lot of time undermining the legitimacy of the courts, of “unelected judges who do not speak for the people or have democratic legitimacy”, whether here or in the international court in Strasbourg, and who do so in the context of one Bill—perhaps about refugees—then to come along and criticise and undermine an essential element of our domestic human rights settlement which is a parliamentary committee of both Houses that has more of an element of “democratic legitimacy” and was always intended when the Human Rights Act was passed. Yes, of course, the courts will be the final arbiter, but before we get to that extreme situation—it should be rare in a modern democracy that the Executive and the courts have to be in a head-to-head collision—there is a role for Parliament. There is a role for Ministers when they make a Section 19 statement under the Human Rights Act. Ministers on this occasion have taken the view that they can make a Section 19(1)(a) statement; in other words, they believe that this measure complies. Following on from that executive statement—that is what a ministerial statement is—it is a key part of our settlement, and rather a constructive one, that a parliamentary committee of both Houses has a look at ministerial reasoning for it. I do not need to put it higher than this: on this occasion, the Joint Committee, with an element of democratic legitimacy—because it is not just Peers but to a large extent Members of the other place—has taken the view that the case has not been made by the Government. The noble Baroness did not address the specifics of that.

I will try to crystallise what the noble Lord, Lord Fox, identified in the criticism of the Joint Committee. Essentially, when one interferes with qualified rights such as freedom of association—it is a qualified right; it is not torture that we are talking about here; this is freedom of expression and freedom of association—one needs to comply with a convention that was drafted by Conservative lawyers after the Second World War. I will keep saying that because it is an important part of political history in this country and the world. To comply with Article 11, interference or potential interference—not violation, but interference—with freedom of association needs to be necessary and proportionate and in accordance with the law. “In accordance with the law” means not arbitrary—to be clear and foreseeable enough when that interference is set out.

The Joint Committee asks reasonable questions of noble Lords and Ministers opposite. First, how is this measure proportionate, when there are more proportionate means such as negotiation, of establishing what minimum service levels should be? Secondly, how is it proportionate to introduce this element of retroaction in relation to people who have balloted on the understanding of the law as it currently is? Thirdly and crucially, how is it not arbitrary to put the meat, the potatoes and the dessert—the whole meal—in regulations and not in the Bill? Those are incredibly pertinent, reasonable and legitimate questions for the Joint Committee of Parliament—not the courts, because we are not in that extreme situation yet—to ask. That is the point of Parliament; we do not want to set a collision course between our Government and His Majesty’s judges, let alone an international court. That is why I address those comments to the noble Baroness opposite.

More generally, I am more concerned by the hour, let alone by the day, about this Government’s approach to human rights. On this occasion and with this Bill, they have taken the view that the Bill complies. I disagree, but I am sure that we will shortly hear from the Minister the rationale about how in his view this Bill—not just the policy behind it but the way the policy is executed—complies with those requirements of “proportionate interference” and accessibility in terms of non-arbitrary measures that are in accordance with the law. It is legitimate that we ask the Minister to do that.

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[Lord Collins of Highbury (Lab)]

It is not funny.

[Baroness Chakrabarti (Lab)]

I do not find this kind of deliberate strife—a confected division of our very troubled country—amusing at all, and I look forward if not to the noble Baroness’s response then to that of the Minister in due course.

[Lord Henley (Con)]

My Lords, I sit on the Joint Committee on Human Rights and therefore my name is attached to that report. We have heard various descriptions of the report coming from the Opposition Front Bench, the Liberal Democrat Front Bench, my noble friend Lady Noakes and the noble Baroness, Lady Chakrabarti. As the noble Baroness, Lady Chakrabarti, put it, the report asks some questions and raises doubts about whether the Bill is compliant. We had only a very short time in which to look at the Bill, because it is being brought through rather quickly. We had one evidence-taking session, and we sent out a call for evidence, to which there were a number of responses. I cannot say that our examination of the Bill was as in depth as it would have been for any other Bill. Nevertheless, I can say that the descriptions of the report from the Opposition Front Bench and the Liberal Democrat Front Bench are not quite the same as what I have heard from my noble friend Lady Noakes or even from the noble Baroness, Lady Chakrabarti, who, quite rightly, set out that, although we raised doubts, we did not give that damning report that was the impression one got from the speeches from the Opposition Front Bench and the Liberal Democrat Front Bench.

I would have signed up to the report only if I was happy with it. Although the report raised some doubts, it did not say, “This is not compliant”; it made it clear that we thought that there were questions to be answered. Those questions will, quite rightly, be answered by the Government when my noble friend the Minister comes to respond today and, no doubt, at later stages. There was not time either for my noble friend or whoever is the responsible Minister to come to the committee and give evidence; no doubt they would like to have done so, and no doubt there will be a possibility of their doing that in future.

I just want to make it clear that there are different ways of looking at the report. What my noble friend Lady Noakes, the noble Baroness, Lady Chakrabarti, and I are saying is probably a better picture of it than what we heard from the Opposition Front Bench.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am surprised that anybody has been able to check whether the Bill is compliant with human rights legislation, because there is nothing in the Bill. I try very hard to read the legislation that comes before us, but I cannot always do it because I have tomes and, as I am not in a party, I have no one to outsource it to. However, I did not have much trouble with this Bill, because there is nothing in it—and, in a way, that is the problem. So although I am not keen on human rights legislation, I disagree with the noble Baroness, Lady Chakrabarti, that this is some big conspiracy against human rights legislation. But I cannot tell what I think about the Bill in relation to that point.

If we forget the human rights aspect, the problem with the skeletal nature of the Bill is that employment rights are important to millions of people in this country, and they were long and hard fought for. If there is a risk of their being taken away, we are not all just going to sit here and say, “Well, we will trust you, even though you haven’t written it in the Bill”.

I have so many questions. At Second Reading, the Minister stressed that a process of consultation would be required before regulations on maintaining

“minimum service levels are introduced”.—[Official Report, 21/2/23; col. 1640.]

But with whom are they consulting? The fact is that we are discussing minimum services and we do not know what the minimum services are. Is it 90% or 50% of services? Will it be different for different services? It is inevitable that this will make it open to conspiratorial questions; people will ask, “What are they up to?”

All the time, I just keep thinking that the consequence of this is that overstretched public services will have to assess these minimum services, which I think will waste endless amounts of their time when we have a crisis of public services. Named individuals may be persuaded to vote for strike action—it is perfectly within their right to persuade them, if there is an argument as to whether they will go on strike or not—and decide to go on strike, which is quite a big decision to make, but then they are named by their employer as somebody who has to strike-break and cross a picket line. If you refuse to do that, you jeopardise everybody else’s employment rights and get the union sued, so you can understand that concern. As an aside, strike-breaking and crossing picket lines is a point of principle that some of us we will not defy; it is a big deal for us. I wanted to make that one bit of clarification.

I just do not know why we need the Bill, and there is nothing in the Bill to tell me why we need the Bill, because—and I think this relates to some of the points made in the Opposition Front Bench’s opening speech—is it not the case that many of the sectors mentioned in the Bill already have their own minimum service requirements? They are often voluntary, but sometimes not. Only in 2019, in the Queen’s Speech, we were told that we needed a Bill to ensure that people could depend on their transport networks; they were trying to legislate on minimum service in transport. At the time, I wondered why they were picking on transport workers, but the point was that they felt it was so important that they had to mention transport. However, now they are just throwing in everybody else. So it has changed from having any kind of democratic requirement; that would imply that this is because more people have gone on strike, but the Bill comes across as a Bill to stop strikes, and, surely, that is one of its problems.

We have the Fire and Rescue Services Act 2004, which allows the Secretary of State to provide and to maintain services and facilities in fire and rescue situations. That was given to him, and, while I did not agree with it, he has that legislation. In the education sector, there are various statutory duties on schools regarding the safeguarding and supervision of children and so on.

Do not get me wrong, I do not agree with all the strikes that have been called recently—I am not in those unions, and I might argue against them—but that is not the point; the point is that we are talking about fundamental rights. They are not human rights; they are long-established employment rights, and the Bill does not tell us which ones are being taken away. It will inevitably cast the Government as people who are indifferent to workers’ rights. I have defended the Government on the Retained EU Law Bill when people have said that they are using it to smash workers’ rights; in response, I have said, “Don’t be so conspiratorial”. I am not helped in defending the Government on that when they bring this Bill forward which is about attacking workers’ rights.

[Baroness Chakrabarti (Lab)]

I will respond, briefly, to the noble Baroness, and I am grateful to her for her ability to disagree well. First, I point out that many of the fundamental employment rights that she holds so dear are actually human rights, and they are set out in international conventions and the covenants of the Churchill settlement. If she does not like the word “human”, she does not have to use it, but these rights are, as a matter of law, international human rights.

Secondly, again, I know that she does not like our human rights settlement or the Human Rights Act, but in our public law in this country, not just under the Human Rights Act, one of the main benefits to the Government of putting the policy neat in primary legislation and not leaving it all to regulations is that regulations—to respond again to the noble Baroness, Lady Noakes—may be struck down in the courts in ways which primary legislation may not.

[Lord Cashman (Lab)]

My Lords, I speak in support of Amendments 1 and 51 in the names of my noble friends Lord Collins of Highbury and Lady O’Grady. It seems to me that the amendments in this group are perfectly reasonable. Amendment 1

“seeks to stop regulations under this Bill from being applied to strikes which have already been balloted for.”

I cannot think of anything more reasonable.

The Bill causes me deep concern, on the basis not only of human rights but of the fundamental rights enshrined in British law. For example, under the Bill,

“Workers could … be sacked for taking strike action that has been agreed in a democratic ballot. If a person specified in their employer’s work notice continues to take strike action despite being required to work during the strike, they will lose their protection from automatic unfair dismissal. This currently applies for first 12 weeks of a strike.”


This is a gross infringement of individual freedoms.

In listening to the earlier intervention by the noble Lord, Lord Henley, I thought he made a rather good case for Amendment 51—that is, that the amendment requires the publication of a report from the Joint Committee on Human Rights before the Act can come into operation. Again, that is perfectly reasonable, engaging the organs of Parliament in how we go forward.

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[Lord Callanan (Con)]

I am not quite sure what the noble Lord is saying. Is he saying that he wants us to introduce minimum service levels in all those sectors as well? If he does, I will take that comment back to the relevant Secretary of State; perhaps they will wish to introduce MSLs in those sectors as well. However, as the noble Lord has observed, the categories in the Bill are fairly widely drawn. In the short term, we, as a Government, have chosen to consult on regulations in those specific sectors. It may be that, in future, if Parliament grants us the powers, we will consult on additional regulations but, at the moment, we have no plans to do so. We have consulted on those three particular sectors.

[Baroness Chakrabarti (Lab)]

Can the Minister explain why this approach to the legislation was adopted? I know why I object to it. I know why the noble and learned Lord, Lord Judge, objects to it. I have a view about the importance of primary legislation. When people’s rights and freedoms are being constrained in this way, there should be foreseeability; by the way, when the Minister answered earlier on Section 19(1)(a) and how seriously he takes the obligation to make a statement on compatibility—I believe him—he did not set out his reasoning as to how this is in accordance with law in terms of foreseeability.

Pragmatically, I just want to ask him this: why was this approach adopted rather than the approach of formulating the policy in each area first? Frankly, purpose-specific primary legislation should then be brought to deal with a minimum service agreement in one sector that could not have been achieved by consent.

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[Lord Callanan (Con)]

The Act does not cover minimum service levels in those sectors. I do not understand the point that the noble Lord is making. There are no minimum service level Acts in the UK at present; I think that in one of the contributions—it might have been the noble Lord’s—the point was made that MSL legislation does not apply in the UK at the moment. It is not something we have done previously, but we now consider that to be the case. I will take the intervention of the noble Baroness, Lady Chakrabarti.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister. I think the two points that are emerging, that I would be grateful for assistance with from the Minister, go like this. The first is that on one level, these six areas are very broad—this was highlighted, in a way, by the noble Lord, Lord Hogan-Howe. For example, “health services” is incredibly broad: everything from dental hygiene to ambulance services. Some of these things are potentially emergency blue-light services and some are not.