Strikes (Minimum Service Levels) Bill

Baroness Chakrabarti Excerpts

Committee stage
Thursday 23rd March 2023 Lords Chamber

[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.

[Baroness Chakrabarti (Lab)]

Does the Minister understand the concern and the problem? “May” can become “must” if someone sues an employer for not having issued work notices, on the basis that the Secretary of State took the view that a minimum service level requirement should be there but the employer chose not to issue work notices but to carry on negotiating, et cetera, and a third party then challenges that discretion and the more gentle decision made under it. That is how “may” can become “must”, and that means litigation, cost and more aggravation. I believe that this is the concern that was expressed by the noble Lord on the Liberal Democrat Front Bench last time and put so eloquently today by the noble and learned Lord.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I hear and understand the noble Baroness’s concerns, but I default to the Government’s position: the Bill gives only a statutory discretion, not a statutory duty, to the employer on whether to issue a work notice.

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[Lord Allan of Hallam (LD)]

My Lords, throughout the passage of the Bill, the Government have repeatedly said that we are talking about last-resort measures that they are reluctant to, and hope they will not have to, introduce. In this group, we will test the extent to which they genuinely see these as last-resort measures.

Collectively, the amendments could be described as seeking to introduce additional elements of friction, before the Government move to regulating for these minimum service levels. Friction can be a useful thing in the right places: if I wish to enter my own house, I would like that to be as frictionless as possible, but if the police would like to enter it to carry out a search, I would like there to be a reasonable level of friction, with them having to prove why they have the ability or need to do that, and to go before a court to have their need tested in front of others. So, here, we are trying to put those kinds of friction in place so that Ministers do not do what we fear: rush to regulate in the heat of action in the same way that they have rushed to bring this legislation before us in the first place.

Amendment 15 in my name uses two concepts that are familiar to those who work with human rights legislation—the notions of necessity and proportionality. I am not practised in public human rights law, so I will defer to the noble Broness, Lady Chakrabarti, who I am sure will have things to say on this group of amendments. However, I have had to make decisions on freedom of expression and surveillance questions on online platforms where these tests are useful and applied because they seek to balance different rights that we have. It has been generally accepted in our debates that we are talking about fundamental human rights here—the right of an individual to withdraw their labour. When considering whether the Government in the public interest can override that right, these necessity and proportionality tests are the right ones, just as they are in other contexts such as freedom of expression and surveillance.

I am sure that the Government in their response will refer to the human rights certification that is on the front page of every piece of legislation and say that it is an implicit commitment. Of course, no British Government could ever not apply tests of necessity and proportionality because they have signed off the legislation as compliant. However, there are significant advantages to making these tests explicit in this section of the Bill.

The amendment would force the Minister to consider the tests and to apply them explicitly before making regulations, and to publish their deliberations for scrutiny. In practice, this would mean that the Minister would have to ask the team that is putting together the case for the regulations to show its workings; this would have significant value if those workings were available to all of us. That is not least of defensive value for the Government, because at some point they will have to explain why they felt compelled to make the regulations and why they passed the threshold.

I look first at the necessity test. The Minister would need to be satisfied that all other avenues had been tried, which in this case largely means negotiated agreements to provide cover. The risk with the Bill as it stands is that Ministers will be satisfied with vague assurances. They will ask, “Did you ask for voluntary cover?” “Yes, Minister, we did.” “Did they agree?” “No, Minister, they didn’t.” “Okay, let’s move to a regulation.” The test may be no more than that and, indeed, in the letter that has just arrived from the noble Lord, Lord Markham, which we are now considering, one senses an element of that with the Government’s argument around ambulance services: “We asked; we didn’t get one and we therefore now need this piece of legislation.” That is not good enough and, if this is truly a last resort power, we want the Minister to press for all avenues to have been explored including the potential offer of carrots to the workforce for agreeing to provide minimum services, as has happened in many other countries. We debated that at length on the first day of Committee. It is not simply a question of employers ordering their workforces to provide minimum service levels; in many institutions there is a negotiated agreement whereby something is offered to the workforce in return for providing minimum service levels. What we do not want is a necessity test that bypasses and ignores that option altogether. By putting that explicitly in the Bill, the Minister would have to be satisfied that all reasonable steps had been taken and there was no other way in which to guarantee minimum service levels. That is the right necessity test when one is overriding somebody’s fundamental rights, as we have all agreed is happening in this case.

I turn now to the proportionality test. It is included to make sure the provision is done properly. There is a risk of a superficial version of this test—one which is effectively a cost-benefit analysis. We have seen this again in the context of the ambulance debate. The Government will argue that the benefits of having life-saving ambulance cover outweigh the cost of some workers not being able to strike. At that superficial level that sounds reasonable, but it is not a true proportionality test. To do that properly we need to dig into the next level, where we look at the likely actual impacts. There are two areas where the proportionality test might be more complex. First, if there is any likelihood that workers could end up being dismissed—as we have accepted is a potential outcome of this legislation—in this case the costs are dramatically different and that equation would change. Providing emergency cover versus dismissal of workers is a different test from emergency cover versus simply losing the right to strike.

Secondly, if the regulations did not result in more people showing up for work—for example, because people take other forms of industrial action, which they are entitled to do; there are all sorts for ways in which the climate could be poisoned to such an extent that one ends up with fewer people at work than one would have done absent the regulation—the benefits would not have been realised and the proportionality, the cost-benefit equation, changes. This amendment therefore proposes the kind of proportionality test that I hope the Minister would apply by rigorously looking at all the costs and benefits, and is then prepared to publish and defend that analysis rather than making simplistic assumptions. The amendment simply seeks to introduce that rigour with publication to make sure that it happens.

Other amendments in the group will add other forms of beneficial friction and I will leave it to their proponents to argue for them, but I hope that I have made a reasonable case for the Government to accept the additional clarity offered by Amendment 15. I beg to move.

[Baroness Chakrabarti (Lab)]

I speak in support of every amendment in this group, even at the risk of offending the noble Baroness, Lady Noakes. At first blush, her Amendment 17 enhances my noble friends’ amendment and does no mischief to it whatever because. by including the impact of the legislation on service users in the list of other groups of people affected, she has, perhaps inadvertently, introduced an element of proportionality into the assessment of the legislation. I completely agree with the noble Lord, Lord Allan of Hallam. I perhaps would not have chosen his friction metaphor because it is the legislation itself that is introducing friction into what ought to be partnership industrial relations. This group may not be Henry VIII on stilts, but it is Henry VIII revisited. What every amendment in the group at least purports to do is to introduce an element of transparency into the process before the Secretary of State inflicts these regulations on the public or on Parliament.

I want to be clear, as I have been in the past, that the Bill is not desirable or necessary but if such minimum service level agreements were in a particular instance desirable, necessary and proportionate to comply with convention rights, as the noble Lord, Lord Allan, rightly pointed out, it would be for a number of reasons better for everyone—including Ministers—to do this by way of purpose-specific primary legislation. In a moment where it was truly necessary to impose these agreements because they could not be reasonably negotiated, it would be better for legal advocacy to do this by way of purpose-specific primary legislation. Why? Because it would be purpose-specific and because any court subsequently considering the necessity, proportionality and compliance with the law of the measure would give greater deference to the scrutiny and process undertaken in both Houses of Parliament in the context of a Bill rather than regulations.

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[Lord Balfe (Con)]

I say to the noble Baroness that, early in my career, I asked a senior trade unionist who had been the best Minister of Labour, and he said Walter Monckton followed by Iain Macleod.

[Baroness Chakrabarti (Lab)]

That is even more wisdom from the noble Lord, Lord Balfe.

That concludes what I wanted to say about this group of amendments, and I look forward to hearing later, I hope, a word of consensus from the Minister in response.

[Baroness Noakes (Con)]

My Lords, I think that the noble Baroness, Lady Chakrabarti, has tried to damn my amendment with faint praise, so I had better explain it and my approach to this group of amendments.

First, I remind the Committee that this is not draconian legislation, as the noble Baroness has just suggested. It does not impose minimum service levels; it merely allows the Government to specify minimum service levels, which can then be imposed via work notices if employers so choose. That is all this legislation is doing.

This group of amendments, in various ways, is trying to make the process of establishing regulations specifying minimum service levels more difficult, and to make them harder to get through Parliament by putting more hurdles in their way. The Bill already requires consultation; indeed, consultations have already been published for three instances of minimum service levels, and that process will run its course. The departments will then produce their minimum service levels and the appropriate statutory instruments, which will be accompanied by impact assessments. All of this is perfectly ordinary practice; it does not need any of the amendments in this group.

I tabled Amendment 17 simply because the noble Lord, Lord Collins, asked in his Amendment 16 for an assessment of the impact on

“workforce numbers … individual workers … employers … trade unions … and … equalities.”

Just for the sake of balance, I wanted to remind the Committee that there is the other side: people who are affected by strike action and who want to receive services. The point of my amendment is to say: I do not support the amendment tabled by the noble Lord, Lord Collins, but if you are going require something such as this, it should not give just a one-sided picture; it should be balanced. To that extent, I am grateful for the comments from the noble Baroness, Lady Chakrabarti.

[Baroness Chakrabarti (Lab)]

I am grateful for that gracious response from the noble Baroness. Whatever her motivation, I agree that service users should be included in that list, not least for the reasons set out earlier by the noble Lord, Lord Allan of Hallam.

[Lord Collins of Highbury (Lab)]

One thing that the noble Baroness could read is the original impact assessment for the transport Bill, which said—and I will come back to this point—that there will be an impact on service users because disputes will be longer and industrial relations will be worse. The problem we have had is that that Bill and this Bill had impact assessments there were red-rated. The noble Baroness should focus on that.

[Baroness Chakrabarti (Lab)]

Indeed. The point is that the noble Baroness opposite and I disagree, perhaps, about what the effect will be on service users and others, but the test is necessity and proportionality, as was set out so well earlier by the noble Lord, Lord Allan of Hallam. Whatever the motivations, it is a good addition to the list, in my view.

As for the noble Baroness’s point that this is will all be voluntary and the legislation will not impose anything on anyone, that really does not hold as a matter of law—not least because, as we discussed earlier, the “may/must” point is really significant; it is not hypothetical. It is hugely significant that, when one is a given a power—whether the Secretary of State is given a power to make regulations or an employer is given a power to issue work notices—they must exercise that power rationally. They cannot ignore that they have that power; they will face litigation. That is compounded in this area because the employers may well be contracted by the Secretary of State. The Secretary of State would then have the purchasing power—the significant contractual power as the buyer of the service at one end—and would also wield regulations with the other hand. It is not completely ingenuous to suggest that this is all just helping the discussion and that there is no element of compulsion in it.

[Lord Hendy (Lab)]

My Lords, much of the debate on this Bill has been concerned with its substantive content, but my noble friend Lady Chakrabarti draws attention to a major problem with the Bill; namely, its form.

I remind noble Lords that last year two committees of this House reiterated long-standing principles for drafting legislation. The Delegated Powers and Regulatory Reform Committee, of which I have the honour to be a member, in its report Democracy Denied?, and the Secondary Legislation Scrutiny Committee, in its report Government by Diktat, set out those principles, which were overwhelmingly endorsed in the debate in the House on 6 January last year. The fact is that this Bill flouts those principles. That view is reiterated by the reports on the Bill by the Delegated Powers Committee, the Joint Committee on Human Rights and the Constitution Committee. In addition, as my noble friend Lord Collins has just pointed out, the Regulatory Policy Committee has described the Bill’s impact assessment as “not fit for purpose”. This raises the question of what steps this House could take to ensure that Bills comply with the principles that are essential for parliamentary democracy in this country.

I turn to my Amendment 36A in this group, which is my attempt to give some substance to—or to redress—the omission pointed out by the Delegated Powers Committee in its report on the Bill. I will read two short paragraphs from our report. Paragraph 19 says:

“The Government have chosen to put no detail in the Bill in relation to minimum service levels, leaving the matter entirely to regulations. Important matters of detail should be included on the face of the Bill, perhaps with a power to supplement those matters in regulations.”


That is my noble friend Lady Chakrabarti’s point. The conclusion, which the committee reached at paragraph 23, is:

“Given the absence of an exhaustive or non-exhaustive list in the Bill of the matters that can be included in regulations, the unconvincing reasons for this power in the Memorandum, and the absence of indicative draft regulations illustrating how the power might be exercised, the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels in new section 234B(1) of the 1992 Act is likely to be exercised. In the absence of a satisfactory explanation, we regard the power as inappropriate.”


My noble friend Lady Chakrabarti says that we can make it good by passing primary legislation. I wonder whether the Government will consider the possibility—even at this stage—of introducing amendments to put those omissions into the Bill to give it at least some semblance of meeting the format and principles for the drafting of legislation.

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[Lord Callanan (Con)]

They will also get to vote in democratic elections and make their feelings clear. By the very nature of the legislation, if a strike is taking place with no minimum services, given that this Bill imposes minimum services, his parishioners will get a better level of service once it goes through. However, we should have debated these points at Second Reading. I am sorry that the right reverend Prelate could not be present then.

Amendment 15, tabled by the noble Lord, Lord Allan, seeks to require the Secretary of State to lay a Statement before each House outlining how the regulations that set minimum service levels and specify the relevant services are both necessary and proportionate. As my noble friend Lady Noakes, who has had to go to the Financial Services and Markets Bill in Grand Committee, pointed out, this amendment adds unnecessary duplication. Sufficient checks and balances before the regulations can be made are already built into the legislation. This includes the need to carry out consultations and the requirement that regulations must be approved by both Houses before they can be made.

Key stakeholders, including employers, employees, members of the public—perhaps even churches—trade unions and their members are all encouraged to participate in the consultations and have their say in the setting of these minimum service levels before they come into effect. Parliament, including Select Committees, as they already have done, will have an opportunity to contribute to the consultation. Following the consultation, the Government will consider all representations and publish a response setting out the factors taken into account in determining the minimum service level to be specified in those regulations.

Subsequent regulations on MSL will be accompanied by an Explanatory Memorandum which will outline the legal effect of the regulations, to address the complaints of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Cashman, and its rationale and why they are necessary. Impact assessments will also be published alongside the regulations, which will then be subject to the affirmative procedure. We think this approach is appropriate; it is a common way for secondary legislation to be made.

Amendment 36, tabled by the noble Lord, Lord Collins of Highbury, and the noble Baroness, Lady O’Grady, also requires the relevant Commons Select Committee to publish a report on how the Act will impact that sector before regulations are made. This will delay the implementation of minimum service levels—I suspect that is its intent—and extend the disproportionate impact that strikes can have on the public.

Amendment 36A, in the name of the noble Lord, Lord Hendy, would require the Government to lay draft regulations before each House of Parliament at least 28 days before the regulations are intended to be made, with an Explanatory Memorandum setting out factors taken into account in determining the MSL. These additional steps are, in our view, unnecessary and duplicative for the reasons that I have set out. The Government resist Amendments 16, 17, 20, 36 and 36A.

Amendments 38 and 39, in the names of the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, would place limitations on the consultation provision, which the Government again resist. In the Government’s view, Amendment 39, as drafted, would not have the effect that noble Lords perhaps intended. In reality, it would require consultations to be published within a six-week window after the Act is passed, meaning that, by their very nature, future consultations after this period would then not be possible. Amendment 38 would prevent consultations taking place at all after the Bill has achieved Royal Assent. Both amendments would remove the ability to specify minimum service levels on an ongoing basis and, in our view, unduly limit our ability to respond appropriately as circumstances change—again, I suspect that this is the purpose of those who tabled the amendments. Key stakeholders are all encouraged to participate in the consultations to help shape the way MSLs operate. As I have made clear in previous responses, the Government have already published consultations on implementing minimum service levels in ambulance, fire and rescue, and rail services.

Amendment 40, in the name of the noble Lord, Lord Fox, would require the Secretary of State to lay a copy of a report in both Houses of Parliament, no later than six months after the Act is passed, setting out the findings of a review into the impact of the Act in regard to six key sectors. The noble Lord will be unsurprised to hear that I resist this amendment on the grounds that all the potential impacts of minimum service levels, including those on staffing, etc cetera, and the other factors the noble Lord mentions, will be considered as part of the process of making detailed regulations for those specified services. As I have set out on numerous occasions, these regulations will be accompanied by detailed impact assessments. We have also committed to conducting the usual review of the full impact of the Act within five years of the first secondary legislation coming into force. We believe that is a much more appropriate timescale to review the impacts.

I apologise to the Committee if I have spoken at length but there were a lot of amendments in this group. I hope I have been able to provide at least some reassurance on the consultation processes that we intend to undergo prior to making regulations, as is required by the Bill.

I was going to say that I hope noble Lords will feel able not to press their amendments, but I see that some noble Lords are seeking to intervene.

[Baroness Chakrabarti (Lab)]

I want to ask a question of the Minister, just to be clear in my own mind. The trade unions say that the Government do not need these powers to enforce minimum service level agreements because they are reasonable and negotiate voluntarily and will continue to do so—they say it is not necessary to legislate. The Government disagree with that and legislate. Then, when some of us say that there needs to be a transparent process and proper consultation because this is such grave legislation for trade union rights, the Minister responds by saying, “No, no—we do it anyway, so we don’t need to put that on the face of the Bill”. Is there not a contradiction at the heart of this argument? The Government will legislate only one way: for powers for the Secretary of State but never for scrutiny of the Secretary of State. How is that consistent with what the Government say to unions, who are saying do not legislate for this because reasonable agreements will be negotiated in any event?

[Lord Callanan (Con)]

On a number of occasions, including the first day of Committee, I have made it clear that if voluntary arrangements are in place, which there are in some services, that is our preferred approach. However, it is the case in certain ambulance services that those voluntary arrangements were not agreed until literally the night before the strike action was due to take place, and indeed some trade unions then changed their minds about voluntary arrangements. We therefore think it is appropriate to have the back-up power. If they can be agreed, that is our preferred approach. The approach outlined by the noble Baroness is the normal process of consultation. If Parliament chooses to give the Government these powers—we will see the outcome of the debates in both Houses—then we will consider whether it is appropriate to make these regulations or not, given the circumstances in each case. Those regulations will then be further approved by Parliament.