Strikes (Minimum Service Levels) Bill

Baroness Chakrabarti Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

I put it to the Government and the Minister that, given the weight of all the evidence that has been put to them in good faith, showing them the whole picture as we know it, it is time for them to think again, especially on the health service, which is delivering so much under so much pressure. The health service does not deserve restrictions of this type imposed on it.

[Baroness Chakrabarti (Lab)]

My Lords, it is with a heavy heart that I welcome the Minister—the noble Lord, Lord Markham—to this Committee. That heavy heart is for a few reasons. The first is that in his time in your Lordships’ House I have found him to be one of the kindest and least combative members of the Government, so I can only imagine what he feels about applying this kind of approach to industrial relations in the health service.

That takes me to my second real regret about this aspect of the Bill. Of course I find the Bill objectionable per se, but I find it particularly distasteful in relation to health services. That is because these people have been the heroes of the pandemic. I am personally embarrassed that it feels like a very short time ago that I was standing with my neighbours, practically in tears, bashing pots and pans in gratitude to these people. We in this House are now talking about imposing minimum service levels on them, as if that is necessary.

What is more, some categories of these health workers are highly regulated and ethical professionals. Even outside pandemic circumstances, we all put our lives and those of our loved ones in their hands. We trust them to do things that we do not understand: that is the level of trust that we have in these people. It is, in the words of the right reverend Prelate, a terrible statement of a lack of trust—it undermines a sacred trust—for politicians to be inflicting this on these highly ethical health workers. I really wonder, if we were to have a focus group or a poll of the public, and measure the trust index of different categories of people in public life and in different professions, where nurses, doctors and other health workers would sit, compared to—dare I say it—lawyers and politicians.

That takes me to a further regret, which was put so well by the noble Lord, Lord Allan of Hallam, who, if he is not careful, is going to be competing with his noble friend Lord Paddick for who is the most legally literate non-lawyer. He hit on a very important point that is specific to health services: the litigious possibilities. In relation to the Bill more generally, we have already touched on the dangers of litigation in relation to whether the Secretary of State chooses to make regulations in an area or not. Some people might seek to challenge the making of regulations but, of course, there is also the possibility of judicial review by other groups of the Secretary of State not making regulations. This will come whenever something is effectively delegated to executive discretion. That executive discretion can be subject to judicial review and litigation. Governments of both stripes get annoyed with judicial review, but there it is: it is part of our rule-of-law system in a constitutional democracy.

In addition to that potential for litigation, we then have the negligence lawyers. As the noble Lord, Lord Allan of Hallam, put it so well, we now have oceans of possibility of claims made against particular employers for potentially not issuing these notices in circumstances in which they did not think it was necessary. To be in hospital is to be sick, and there will sometimes be bad outcomes, and we now have this new possibility for litigation about the extent to which issuing or not issuing work notices may have contributed to your loved one’s demise. That needs to be considered.

The Minister was not here during debate on the earlier group, so to help him out I say that he could borrow the script of his noble friend Lord Callanan. In relation to some points, he said, “I can’t explain this point to you because, of course, it is legal advice that I have taken; I’ve taken it very seriously but I can’t tell you what’s in the legal advice.”

When other points were put to the ever-resilient Minister, the noble Lord, Lord Callanan, he said, “The reason why this is in and that is out is a political decision”. It is either legal advice, which he will not comment on, or a political decision as to why these categories are so broad—or why there are six of them and not seven. If we wanted more, he was saying, the Government would give us more, but they would not give us fewer. The point is not about the length of this list of services but about the precision and rationale that went into making these choices.

The noble Baroness, Lady Noakes, says that it is all very well talking about the unions on the one hand and employers on the other, but I think she said that the Government are taking powers for themselves to act on behalf of service users. There are two points there: one is that when we talk about as many people as we are in the context of providers of health services, that is a lot and they are service users and providers at the same time. But the other, which was the crucial element in her remarks, is that the Government are taking powers for themselves. They should not be doing so. If legislation is truly necessary in relation to health services or anybody else, it should be for Parliament to have a Bill before it that is specific enough to provide foreseeability, in accordance with the law, and therefore comply with convention rights.

In the end, I have to hand it to the right reverend Prelate: the issue is about health services being too broad. As my noble friend Lady O’Grady of Upper Holloway asked, will it cover Amazon? I look forward to the answer on that because it would be pretty sweeping and concerning if it did. “Health services” is broad; it is not precise as a concept. My real sadness about health services being attacked in this way is the issue of trust. The Government should be building trust, post pandemic most of all, between people and vital healthcare workers and not undermining it.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

I thank the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, for their amendments. I also thank the noble Baroness, Lady Chakrabarti, for her kind words.

Amendments 3 and 4 seek to remove the health sector and health services from being within scope of having minimum service levels implemented. As my noble friend Lord Callanan said earlier, the key sectors outlined in the Bill broadly stem from the 1992 Act, as amended by the Trade Union Act 2016, as they have long been recognised as important for society to function effectively. Strike action in some areas of health services can put lives at risk or cause serious harm to patients. As my noble friend Lady Noakes rightly pointed out, it is about protecting the patients; that is why we have brought this provision. It has the potential for far-reaching consequences for members of the public who are not involved in the dispute. That is why we are looking to include the health services within the legislation.

I will try to answer some of the specific questions from the noble Baroness, Lady O’Grady, the noble Lord, Lord Allan, and others on why we are including health in the minimum service levels. We need to point only to recent experience in the ambulance negotiations, where there were concerns that many trusts were not sure, right up until the night before, whether derogations would be approved. The thinking behind the need for consultation was that we can have that certainty.

At the same time, the nurses’ and the doctors’ unions said, in their recent strikes, that they would not cover A&E. In those circumstances, noble Lords must accept that there was a real possibility of not being able to provide A&E services, which would obviously threaten the lives of patients. That is why we feel the need to put those protections in the minimum service levels. However, the most important thing in all this is that the Bill is just enabling legislation; our sincere hope is that it is never needed.

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[Lord Markham (Con)]

We all agree that they did a huge amount. I do not think that there is a particular difference in circumstances: the principle behind the derogations today is to provide that life cover. That is absolutely there, which is why the hope and the thought is that this legislation might never need to be used. As I said, it is very much a back-pocket thing because, in the circumstances described today, it has managed—

[Baroness Chakrabarti (Lab)]

“Health services” need not be as broad in the Bill. In his gracious response, the Minister talked about the life and death level of risk. If that is the case, why should the provision not be narrowed from “health services” generally, which is incredibly broad—it covers everything from dental hygiene to nutrition advice—and tightened to the life and limb cover he refers to?

[Lord Markham (Con)]

We are talking about the absolute minimum services. As I said, we had the consultation process. Clearly, we would be saying that this is an area where there is a real concern over the risk to life and limb—that would not apply to some of the noble Baroness’s examples—and we would then go into the 12-week consultation period to work through that. The burden will be very much on us to show that that risk to life and limb absolutely is there, because that is that principle behind all of this.

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[Lord Markham (Con)]

I thank the noble and learned Lord for his comments. As I have said, in these circumstances we are talking about putting in place those minimum service levels for the trust to be armed with and to be able to enact. We are not trying to put in place any legal framework that we can use to go back and sue the trust for not holding to it, and we are not trying to put legal obligations on the trust to do it. Instead, we are trying to give an enabling ability, to be used only, as I said, as a backstop in these circumstances, and with the hope that they will never need to take that forward.

[Baroness Chakrabarti (Lab)]

I appreciate that the framework of the Bill as a whole is not the Minister’s responsibility; he is in Committee to talk about health services in particular. So I will ask him a question specifically on health services. Given his very clear answers that he anticipates the life and limb health provision being a matter only for the Bill, would it not be wise, advisable and appropriate for the reference to “health services” in the Bill to be tightened, so that it is clear that the regulation-making power is only about the life and limb provision he has talked about so extensively and explicitly?

[Lord Markham (Con)]

Again, I believe that it is trying to work off the 1992 definitions and work. The beauty of these debates, as I have come to appreciate about the House of Lords and the job that it does, even in the short time that I have been involved, is that they make sure, through this good critical challenge, that we can ensure that the legislation is doing exactly what we want it to do. We need to make sure that we get those definitions correct and, clearly, the beauty of where we are at this stage is that we have that ability. I thank noble Lords for that, and I hope that they can see by my responses that this is something that I want to make sure we get right.

I am glancing through the remaining questions—but I hope that I have answered the substance of the questions.

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[Baroness Barran (Con)]

We very much hope that it would have the opposite effect.

[Baroness Chakrabarti (Lab)]

I am sorry to press the Minister once more on my noble friend Lord Hendy’s point, but I do not think it is inappropriate because it goes to an important principle in this legislation. If there are some current services in the public space—education is the specific example given in this context—that are being provided at current levels only through a great deal of unpaid, extra hours of voluntary work, is it part of the policy behind the Bill that it is possible for a Secretary of State to prescribe minimum service level agreements that mandate unpaid voluntary work?

[Baroness Barran (Con)]

It would obviously depend on the contractual arrangements in place. My understanding is that not every case would be the same.

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[Lord Hendy (Lab)]

My Lords, I have four questions for the Minister. First, I appreciate that this ground has been covered to a certain extent—at least, what has been covered provokes me to ask this question again—but the noble Lord, Lord Markham, specified that the criterion for implementing or setting a minimum service level in the health service was danger to life and limb. In relation to transport, what is the criterion, or what are the criteria? Once those are established, how is the minimum service level to be computed? Is it a percentage of existing services that will have to be provided, or is some other metric to be used?

The second issue is the boundaries of the transport sector, a point that my noble friend Lord Collins mentioned in passing. The transport sector can be very wide indeed. Obviously, it could cover road transport, freight, passenger buses and so on, but what about parcel transportation, parcel delivery—post delivery? Does it extend to the Post Office? There are a multitude of examples. I would be very grateful if the Minister could tell us what the boundaries are.

The noble Baroness, Lady Randerson, mentioned a strike by cleaners. If the minimum service level for rail passenger transport requires that a certain percentage of trains run, what is the implication for workers other than those who drive the trains? What is the impact on guards, conductors and signallers? If we run half the commuter trains in and out of London, do we not need a full complement of signallers to do it? Are they to be banned from taking strike action altogether by a minimum service level of 100%? What about the ticketing staff and the guards who are in charge of collecting fares and so on? If they go on strike, what are the implications there for a minimum service level? There is also track maintenance. You cannot have 20% of track maintenance. Presumably you need all the track maintenance to keep the lines open. Is it proposed that there would be a 100% minimum service level for track maintenance staff?

The third issue is overtime, which also arose in relation to teachers. Anybody who knows anything about the railways knows that a rail passenger service runs on voluntary overtime—drivers working on the days that they are rostered to have off. Of course, they are paid, unlike the teachers. Nevertheless, it is voluntary. It is beyond their contractual obligation. How will setting a minimum service level—further, how will setting a work notice—avoid imposing an obligation that those who normally provide voluntary overtime must provide it to maintain the minimum service level? Is that what is being proposed? Is that what the Government have in mind, or can the Minister tell us now that there will be no requirement for rail staff to work voluntary overtime?

The fourth issue is one that the Minister has heard me raise before. This Bill clearly constrains and limits the right to strike. There can be no doubt about that. This has implications under the EU-UK Trade and Cooperation Agreement. Articles 386 and 387 state that where the standards of the International Labour Organization—ILO Convention No. 87 and so on—are diminished by one of the parties, either the UK or the EU, and that affects trade, this will be a violation of that agreement.

The Minister may say that none of these sectors will affect trade. That may be dubious in relation to the transport sector but, leaving that aside, even if that does not apply, Article 399 of the trade and co-operation agreement requires the United Kingdom and the countries of the EU to implement those ILO conventions that they have ratified, including ILO Convention No. 87, which protects the right to strike, and requires them to implement the provisions of the European Social Charter, which they have ratified. The United Kingdom has ratified paragraph 4 of Article 6 of the European Social Charter 1961, which specifically provides that workers have the right to take collective action. The Bill unarguably diminishes that right, which will also lead to a violation of the treaty. Can the Minister explain why he thinks that there is no possible violation involved?

[Baroness Chakrabarti (Lab)]

My Lords, I will try to be brief to help the Minister. In a throwaway remark, I think, at Second Reading, he said, with his usual flair and panache, something like, “I notice that noble Lords opposite are very quick to invoke the nurses but not the railway workers”. But that was not quite the case, because a number of us, myself included, had happily invoked rail workers. I will not talk only about nurses. I have travelled on many trains up and down this country and I hugely admire rail workers, who are not just drivers but the people who look after us on our journeys. I have seen rail workers looking after people in distress on overcrowded trains in the heat and helping the infirm on and off trains. As a woman often travelling alone intercity late at night, I have been very grateful for there being somebody in that carriage, so I am very happy to invoke the rail workers.

The Minister said that as though that meant we were on weaker ground tactically—a bit more embarrassed about rail workers than, for example, health workers. It made me wonder whether this is not the real target of the legislation. If rail workers generally, or the RMT in particular—perhaps because the general secretary has a certain hairstyle—are the real target for this legislation, why can we not have targeted legislation that includes what the criteria are and what the service level agreement is? That would be better legislation.

My noble friends have pointed out the differences in the approaches of the three Ministers that we have heard so far. A life and limb test was offered in the context of healthcare. There was no test offered in the case of education, but some embarrassment and a real desire to never have to invoke this legislation at all. Is this difference of opinion a difference of policy and approach in the different departments or, to be more charitable to the Government, is it because these services are just too different and it is not appropriate for them all to be bundled into a single Bill to give sweeping powers to the indivisible Secretary of State to legislate by fiat?

Either way, whichever is true, it is not appropriate for legislation. I say once more to the Minister: if this is about rail services, there are ways to tackle that, with or without legislation, given the very influential role the Government have in relation to the private companies through contracts and so on. If this is supposed to be general emergency legislation, we need criteria suggesting that this is a proper emergency—not in healthcare but in getting teachers to do mandatory unpaid overtime in other areas. A real problem of inconsistency has been identified in the varying groups, and that is why I do not think they have been repetitive but a voyage of discovery about what may or may not be the real motivation and about the obvious weaknesses in the Bill.

Finally, if I may say so, the question posed by my noble friend Lord Hendy about whether a potential mandatory requirement for people to do voluntary unpaid work will—or might—feature, is within the vires of the Bill.

[Lord Callanan (Con)]

I thank all noble Lords who have spoken. First, I apologise to the noble Lord, Lord Collins, that he has me responding to this group. I tried to get the Transport Minister to take it but, unfortunately, she had a long-standing personal engagement and was not able to. I hope that he was grateful that I got the Health Minister and the Education Minister to respond to the other groups, because I thought it more appropriate in those circumstances, lest the Committee get bored hearing from me on all the subjects. As the noble Baroness, Lady Randerson, observed, I was for a brief period six years ago a Transport Minister, but in aviation, not in rail. I have trouble recalling all of the things I did six years ago.

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[Lord Callanan (Con)]

I am sorry if the noble Lord thinks I am repeating a mantra. I am answering the questions that are asked of me. People keep asking me the question, so I keep giving the same answer, which is the legal position that there is no legal obligation on employers to utilise a minimum service level. That remains the case. I am sorry if the noble Lord thinks that is a mantra, but that is the legal position. I was asked a question and I am answering it.

Let me answer the other part of the noble Lord’s question. Clearly, in the case of rail, the taxpayer puts in billions of pounds a year to subsidise the service, so my personal view is that the Secretary of State has every right to seek to manage the service properly and effectively. However, the decision to issue a work notice, if the minimum service level applies and is set by Parliament at a particular level, comes down to the employer.

[Baroness Chakrabarti (Lab)]

Surely the special point about railways is that the Government are contractor as well as legislator. What is being probed by my noble friends is whether it is appropriate for the Government on the one hand to give lovely contracts to rail companies—who are practically profiteers, in my view, and are not passing on the revenue from increased rail fares every year to the workers or the service users—and on the other hand to compensate them for strike action within the contract, and for the Government then to impose the minimum service level agreement, which is effectively on the trade unions. Is that appropriate? Is it ethical? Is it constitutionally something that we want to see the Government of this country doing?

[Lord Callanan (Con)]

I am not an expert in the rail industry but my understanding is that most of the train operating companies are owned by the taxpayer now through various takeovers, so in my view the Secretary of State has a duty to run the rail services. Taxpayers are very generous in the support they provide to the rail industry, and trade unions sometimes do not appreciate how much it is subsidised. In my view the Secretary of State has a right to intervene on behalf of the travelling public and the taxpayer. The legal position—the noble Lord, Lord Collins, might think it is a mantra—is that there is no legal obligation in the Bill on employers to utilise a minimum service level if one has been set in their area.