Baroness Neville-Rolfe
Main Page: Baroness Neville-Rolfe (Conservative - Life peer)Trade Union Bill
Baroness Neville-Rolfe Excerpts
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills and Department for Culture, Media and Sport (Baroness Neville-Rolfe) (Con)
My Lords, the ability of union members to strike is an important part of our industrial relations system. As the noble Baroness, Lady Burt of Solihull, rightly reminded us, today we are also debating the clause stand part. Let me start by explaining that the objective of Clause 3 is to require strike action in important public services, if it has to take place, to secure a stronger democratic mandate. We must consider the interests of the wider public, as well as those of non-striking workers and employers, alongside the rights of union members. It is a sensible and proportionate reform and, as has been said, the thresholds we are talking about are in our manifesto. The impact of strike action is most severe when it takes place in the important public services that people and businesses rely upon every day, particularly services that are effectively monopolies, leaving people with no alternatives if strikes take place. This is particularly unfair when strike action goes ahead without strong support by a unionised workforce. This is a very different situation from my own positive experience—
Lord Collins of Highbury
The Minister used the term “monopolies”. Is that true of London bus drivers? Do they have a monopoly? There are alternatives in London. There are also alternatives between buses in London; there is not necessarily just one route. So why London bus drivers?
Baroness Neville-Rolfe
I think I used the phrase “effectively monopolies”. The point is that the degree of choice is very limited. Since the noble Lord has mentioned London buses, at the beginning of 2015 London bus drivers commanded the support of just 21% of members but Transport for London reported that 7.5 million journeys were affected by the strikes. People needed to make alternative arrangements for travel to work or to important appointments on those days. To return to another point, I am sure that the drivers did not get a round of applause from the frustrated passengers on those occasions either. I agree that the situation might be different outside London, where the bus routes are more disaggregated.
It cannot be right that strike action that causes such widespread disruption can take place on the basis of the support of a small proportion of union members. I know myself just how difficult it can be to make arrangements when tube staff and school teachers go on strike. That is why we have introduced an additional threshold to apply to important public services. I just do not accept the argument—
Lord Mendelsohn
There is a difference between “any” disruption and the situation the Minister talked about earlier, where there is a monopoly, so there is complete disruption. Is she making the case for “any” disruption? Is this lowering the threshold?
Baroness Neville-Rolfe
I do not entirely understand the question. I think the thresholds are clear. We are proposing the thresholds and debating them.
Lord Mendelsohn
I am happy to clarify. The Minister made the point that where a particular service is a monopoly—that is, where the impact of having a monopoly means the withdrawal of such a service—you are forced into not having a reasonable range of alternatives. “Any” disruption is where there are alternatives, so you can choose other things, but you will be disrupted. She has made the argument for any disruption being a reason to have these thresholds, rather than her original test, which was about monopolies. That distinction between those two levels of disruption is quite significant. Is her case about absolute disruption, where your options are narrowly limited and likely to be restricted, or is it about any disruption?
Baroness Neville-Rolfe
I still do not really understand the point. I shall come on to give some examples that may be helpful in explaining the thinking. This part of the Bill is quite straightforward because, as several people have told us, it implements a particular wording in the manifesto. I am trying to explain the background to that.
I cannot accept the argument of the noble Lord, Lord Wallace of Saltaire, although it is very good to have him involved in this debate since we worked together in the coalition. There is no parallel between our recent parliamentary elections or the matters mentioned by the noble Lord, Lord Oates, such as the EU referendum, and the proposed thresholds. In addition to the excellent points made by my noble friends Lord King and Lord Balfe, it is just not a fair comparison. It is right that strong support be required for strike action ballots, because strikes can affect large numbers of the public who do not get a say in the ballot and are dissociated from the relevant trade dispute. In contrast, the public are able to participate in elections and have a democratic say in the outcome. As my noble friend Lord King said, they do not face a binary choice and are choosing between a range of candidates. It follows that the successful candidate may have a smaller share of the overall vote.
I also realise that noble Lords are concerned that the treatment of abstentions, which I think is what the noble Lord, Lord Oates, was getting at, would make the thresholds harder to meet. Our objective is to ensure that strikes can only ever be the result of a clear, positive decision by union members, because the action can go on to cause widespread disruption for the public. Union members are free to abstain from voting, but this is not a positive vote. It is only fair that it does not count towards the threshold.
Recent events show that the threshold can be achieved when union members feel strongly about the issues that are relevant. For example, last year, RMT members were balloted on the night tube, resulting in a turnout of 53% and support of 48%. That means that 91% of voting members supported industrial action, surpassing the thresholds and putting beyond doubt the legitimacy of the ballot mandate.
Lord Oates
Can the Minister address a bit further the issue of the perverse impacts of an abstention being stronger than a no vote? In 2014, I think, the Royal College of Midwives balloted for action for the first time in its history. I believe that 82% voted in favour of action and 8% against. However, the turnout was only 49%. Under this Bill, any industrial action taken by the RCM would therefore be illegal. Conversely, if thousands of people had voted against the strike, it would have been legal because they would have met the turnout threshold. That does not make any sense at all. Can the Minister please address that perverse and absurd impact?
Baroness Neville-Rolfe
The noble Lord has answered his own question. Our reforms ensure that strike action does not take place on low or unrepresentative turnouts. That is why we have two different thresholds.
Lord Oates
Does the Minister seriously think that it would be a sensible situation for the Government to get into if, on a ballot of 82% of people voting in favour, that industrial action became unlawful? Does she think that would be good for industrial relations in this country? Would it help overall relations in this country?
Baroness Neville-Rolfe
My Lords, it is always possible to talk about individual examples. In a minute, I will explain some other examples in relation to the amendments that have been tabled. Asking that 50% of eligible members take part in a ballot regarding action which is going to be hugely disruptive to people in all walks of life seems to me to be fair and democratic.
The threshold does not ban strike action. I think that that is accepted. It may stop some strikes—I think I have to accept that—but only those which have not been able to secure a sufficiently strong mandate. It is about restoring a level of democratic accountability to industrial action and it will rebalance the interests of all working people, both union members exercising their right to strike and non-striking members who want to go to work and carry on their normal lives.
We have before us a number of amendments to lower the 40% threshold, and to reduce the requirement for a simple majority of yes votes. Reducing the thresholds would fail to achieve our objective. It would mean that the thresholds have no practical effect, and would not ensure that strike action could only go ahead as the result of a clear, positive decision by union members.
Let me illustrate the point. If the alternative threshold of 25% proposed in Amendment 9 were applied, then only 250 in a ballot of 1,000 need to vote yes in ballots for important public services. This adds nothing to Clause 2, which requires a minimum turnout of 50%, and a simple majority of those who vote to support strike action.
Lowering the threshold even further to 20%, as suggested by Amendment 8, would again make the important public services threshold meaningless. Finally, Amendment 2 would replace the requirement to achieve a simple majority in all ballots with a requirement that only 35% of those voting need to support strike action. If this applies to a ballot of 1,000 where 600 have cast a vote, then only 210 union members would need to vote yes.
I do not believe that members of the public would feel that this restores a level of democratic legitimacy to industrial action ballots. They would gain no comfort in knowing that they cannot get to work or get their children to school because less than a quarter of union members have supported this outcome.
Lord Balfe
My Lords, I will ask the Minister a question. I believe we are going to have tremendous difficulties defining,
“education of those aged under 17”.
Not only do you have differences in who the teachers are teaching, but also head teachers can preside over schools of different age spans. Will the Minister give some careful thought, between now and our next looking at the Bill, to how the clause can be better defined? I do not think that it works as it is.
Baroness Neville-Rolfe
My Lords, as I have already explained, strike action in services that people rely on every day can trigger a significant amount of disruption. It is particularly unfair when strike action goes ahead without strong support from union members. For example, in 2011 NHS workers were balloted by UNISON for strike action—the noble Lord, Lord Wallace, is not in his place, but this was not a London-focused matter—and, according to reports, only 11% of 250,000 members supported strike action. This is disproportionate to the 1 million patients that the wonderful NHS assists in England every 24 hours, who would have been affected by the action taken.
That is why we introduced a further threshold in Clause 3 to apply to important public services in, as I have said, the fire, health, education, transport, border security and nuclear decommissioning sectors. The Bill limits the threshold in this way because we recognise the particularly serious impact that strike action can have in these areas. The objective of the threshold is not to ban strikes altogether, but to ensure that strike action in important public services can take place only if it obtains a strong democratic mandate.
On Amendment 3 and the questions from the noble Lord, Lord Collins, the Bill has been drafted to take account of the fact that most workers will have a range of roles and responsibilities, which may vary across the year or sometimes even in a single day. For example, London Underground control room staff may spend only part of their time monitoring the network and co-ordinating the response to critical incidents, and the remainder on other responsibilities. They may not engage solely in “important public services”. However, their absence in the event of strike action could severely disrupt the service, as they are critical to ensuring that it runs safely and securely. The existence of the threshold would be ineffective if they were excluded on the basis that they do not spend 100% of their time in the control room, as there are few roles in the modern workplace that engage in only a single activity. To my mind, that would make no sense.
On Amendments 5, 10, 12 and 13, we have used the term “important public services” to describe the services that will be subject to the 40% threshold. The term is intended to capture those services where strike action could have the most significant impact on the wider public. That is why the Bill limits the application of the threshold to six sectors. We consulted over the summer, as was said. In the analysis of the 200 responses, we reviewed the available evidence on the impact of strike action across different public services. We listened to people’s concerns. We were troubled by concerns that the threshold could be applied broadly, despite the Government’s clear intention that it should be limited to those services where the impact of strike action is most significant on the public. We listened and responded. We set out our findings in the skeleton regulations, which were referred to. I shall explain this with one or two examples.
The pressing social need that we are addressing in the health sector is the risk to life, or of injury to the public, in the event of industrial action. We have therefore focused the threshold on only publicly funded emergency, urgent and critical care. This is where reduced service levels can have the most immediate impact on the lives and safety of patients and the public. The noble Lord, Lord Collins, asked about orthopaedics and midwives. If they are normally engaged in the provision of emergency, urgent or critical healthcare services—which sounds like midwives in hospitals—then they will be included in the threshold.
In the fire sector, our aim was, again, to protect the public against the risk to life or of injury. In the light of this, we have focused on firefighting services, including co-ordination of the emergency response, because these are all critical to ensuring that fires are dealt with promptly and effectively in order to protect the public.
Lord Collins of Highbury
Yet the argument is made that ticket offices are not needed any more; they are closing them and Transport for London is going to propose that a number of stations will not be staffed. I hope that the Government will tell Transport for London that it is damaging people’s confidence in a public service and therefore it must keep the ticket offices there.
Baroness Neville-Rolfe
I think we all feel that the plight and the needs of the disabled and elderly are important, but I was trying to explain the logic on this occasion. The fact that people in ticket offices are helping disabled and vulnerable people is actually a big positive.
There was some discussion about why London buses but not rural buses are included. During the recent strike of 2015, TfL achieved a partial service, but this resulted in 7.5 million fewer journeys. Workers on low incomes rely disproportionately on the bus service in London; around 40% of people using buses are on concessionary fares and some 50% of bus passengers have an annual household income below £20,000. In contrast, there is limited evidence of the impact of strike action on local bus services outside London and on the sorts of users who rely on these services.
Finally, in the Border Force we are addressing the significant risks to public safety in the event of disruption to border controls. We have focused on services in respect of the entry and exit of people and goods, as these are central to the carrying out of checks and to preventing illicit commodities, such as unlicensed drugs and munitions, entering the country.
The noble Lord, Lord Collins, asked about progress on nuclear decommissioning and when our findings will be announced. The sector, as he knows, is a complex, heavy-industry sector with interdependencies between the workforces within and between sites. The Government are working to better understand these interdependencies and the implications of forthcoming business changes, and to support workforce reform plans, before bringing forward regulations to apply the threshold in this sector. Any regulations will be subject to the affirmative procedure.
Lord Oates
The Minister said that the reason the rules were not being applied to private schools was because there was no evidence of widespread disruption in such schools. Is there evidence of such disruption in the nuclear decommissioning industry? If not, why is it being included?
Baroness Neville-Rolfe
I think the arrangements on nuclear decommissioning are still under consideration. I can certainly come back to the noble Lord on the question of past disruption. It is clearly an area where it does seem important that strikes should not be entered into lightly. As I have said, there will be regulations, they will be subject to the affirmative procedure and this is on the list with good reason. The noble Lord will understand that we are looking very carefully at the arrangements and we have not come to a final view. I am sorry that on the question of timing I cannot give a firm answer, but I can say that we will be bringing an affirmative resolution forward.
Lord Foulkes of Cumnock (Lab)
But surely all the private schools—or as you call them in England, public schools—are even more important. If the teachers go on strike in them, where are we going to get our Prime Ministers or our Chancellors of the Exchequer from? It would be an absolute disaster for this country if the teachers in those schools, a lot of whom are untrained, did so. The Minister has misrepresented and misunderstood the dangers that we would face.
Baroness Neville-Rolfe
I am very sorry to disappoint the noble Lord but there is no evidence of strike action in those institutions having a major impact or, I think, of strike action at all. I am seeking to explain the difficult decisions that we have taken and set out in our consultation paper for the benefit of the House this evening. Perhaps I may continue, as it is getting late.
I believe members of the public would agree that strikes in the crucial services that I have outlined should take place only when there is a reasonable level of support. Restrictions on Article 11 of the European Convention on Human Rights are permitted where they are justified by a legitimate aim and are proportionate. The courts have made it clear that they will respect the margin of appreciation accorded to each national Government to decide on industrial relations policy. I hope I have assured noble Lords that we have thought carefully about where the threshold should apply, and that the specified services are justified.
“Essential services” of course means something very different. They are referred to by some of the reports of the ILO supervisory bodies in respect of services where it may be legitimate in certain situations to limit or prohibit strike action. Amendments 5, 10, 12 and 13 would wrongly align the 40% threshold with the ILO’s interpretation of “essential services”. The threshold is about ensuring that strikes can go ahead if they have a strong democratic mandate; it does not prohibit strikes. The Government have therefore deliberately chosen the term “important public services” to describe the services covered by the 40% threshold.
Lord Oates
I am sorry to intervene again but the Minister is simply wrong in this matter. As she mentioned, the ILO labour guidelines as set out in Chapter V define essential services. They talk about not just the prohibition on strikes but the limiting of strikes. It is simply not possible to argue that a 40% threshold is not a limit on the right to strike. The Minister may say that it is a legitimate limit but it is definitely a limit on the right to strike.
Lord King of Bridgwater
The noble Lord, Lord Oates, ought to have listened more carefully to the noble Lord, Lord Pannick, who put this point clearly. It is a question of disproportion and whether it is unreasonable. I am very touched by this debate because the Minister is trying to limit the number of occupations that should be subject to this requirement and the noble Lords, Lord Foulkes and Lord Collins, are pleading for certain other categories to be included as well, which is an extraordinary event.
Baroness Neville-Rolfe
My noble friend has kindly made the point that I was about to make about the noble Lord, Lord Pannick. Perhaps I should say finally that we do not want confusion and conflation of the two terms. In any event, the supervisory bodies of the ILO fulfil an informal advisory role and their decisions are not legally binding on the UK.
I turn to Amendment 18, which proposes that the Government will have only one chance to make subordinate legislation on the services to be covered by the 40% threshold, which I think is what the noble Lord, Lord Stoneham, explained. In our skeleton regulations we specified important public services, as I have said, according to the available evidence but we acknowledged that the significance of public services could change in the future. Today’s important services are not the same as those of 50 years ago and they will again be different in 50 years’ time, when the next transformational change—the successor to the internet—has arrived. Moreover, it would not be right for services to remain specified in secondary legislation if reduced service levels and staff absence become less disruptive to the public. Equally, it would not be right if the Government could not capture further public services within the limits set by the Bill, if further evidence was obtained on the impact of strike action in those areas.
My noble friend Lord Leigh does not seem to be here but, to give a curtain raiser, I was not intending to accept the amendment that we were about to discuss next. I hope that is not unparliamentary, but we did discuss this at Second Reading and that amendment, Amendment 4, expands things in a way that is not the Government’s intention.
Finally, Amendment 6 is a good example of the kind of agreement between the Opposition and the Government—in fact, all sides—which is often possible in this House. We initially included ancillary workers because staff who are not on the front line but play a supportive role could be critical to the delivery of important public services. There is a case here, but we have accepted, on reflection, that it would add unwelcome complexity for unions and others involved. We can all agree that the word “ancillary” is open to a number of different interpretations. Having agreed this amendment, the Committee can be assured that only workers who deliver an important public service would be included within the threshold. The regulations would specify, as now proposed, exactly who will be covered. Unions would not have to consider whether there were any additional ancillary workers on top of this. I commend Amendment 6 and hope that the Committee will be able to agree it.
Lord Collins of Highbury
I thank the Minister for her response. For the avoidance of doubt, I reassure the noble Lord, Lord King, that I was not, for one moment, suggesting additional categories, but the debate, and the Minister’s response, have illustrated that this legislation is incoherent and inconsistent. Our purpose in Committee today was to highlight that and we will return to these issues later on. In the mean time, I beg to withdraw Amendment 3.
Baroness Neville-Rolfe
My Lords, I thank noble Lords for the debate and note the passion that has been expressed. I am particularly grateful to the noble Baroness, Lady Morgan of Ely, and to the noble Lord, Lord Hain, for the useful meeting we had last week and for the trouble that they took in taking me through how they see the impact of this Bill applying to devolved public services and public bodies in Wales. I thank the noble Baroness for explaining the legislative consent Motion debate in the Welsh Assembly that took place two weeks ago, for giving her views of the implications this evening, and for reminding us of the forthcoming elections in Wales, where, last year, this party made good progress. I thank the noble Lord, Lord McAvoy, for doing the same service this evening for Scotland.
The Bill will ensure that strike action can go ahead only with a strong and recent mandate from union members. It will increase protections for non-striking workers against intimidation, and increase transparency for union members and taxpayers. It will create an appropriate regulatory environment for unions. It is clear that the benefits this will bring to the wider public should apply consistently across the whole of Britain.
Employment and industrial relations law are clearly reserved matters, as has been said, under the devolution settlements with Scotland and not conferred in Wales. The noble Baroness, Lady Morgan, referred to the Supreme Court judgment in the Agricultural Sector (Wales) Bill, where the court held that the case relates to multiple subjects and thus fell within the competence of the Welsh Assembly. The Supreme Court ruling concerned a completely different situation, where the devolved subject of agriculture was specifically in play. By contrast, this Bill has nothing to do with the regulation of public services. It is squarely concerned with industrial relations and how trade unions are regulated.
The issue of competence is a fact-specific question that can be answered only by careful analysis of the statutory and factual context. In another Supreme Court case in the area of deciding the competence of the Welsh Government—re recovery of medical costs—the Supreme Court followed the same approach as in the agricultural sector case, but came to a completely different conclusion. It decided that the area in play was not devolved.
It would be unworkable to have different employment laws applying in the different jurisdictions in Great Britain. This was recently considered by the Smith commission for Scotland, and it concluded that employment and industrial relations law should remain reserved.
The noble Baroness, Lady Morgan, asked about legal advice. As noble Lords would expect, the Government have taken legal advice on the measures in the Bill relating to a number of areas. The Government do not, as she probably knows, disclose such advice; nor do we comment on leaked documents. The Government are committed, in implementing the Trade Union Bill, to fairly balance the right to strike with the rights of millions of people to go about their normal lives. Having said that, it will come as no surprise to noble Lords that I am always keen to explore areas of potential agreement, but the measures before us do reflect our manifesto and were supported by a clear majority in the elected Chamber.
The noble Lord, Lord Hain, said that he was less interested in the substance of the Bill than in the constitutional issues. As it is late, I will not go through the amendments clause by clause—although I can respond if that is wanted. I just point out that many employers will have staff across some or all of these regions. Business leaders have rightly raised concerns that this could create administrative complexities and could result in differential treatment of different groups of employees. This is not a matter of minute detail. The Government’s objective is to drive productivity and growth across the United Kingdom. These amendments could generate a lot of confusion and additional costs for both employers and unions and make it more complex for businesses to expand into other regions.
The Trade Union Bill is not the right forum for pushing forward the frontiers of the devolution settlements. Employment and industrial relations are reserved matters and the Bill, which deals with employment and industrial relations law, should respect that.
Lord Foulkes of Cumnock
Before the Minister closes the debate, she has not dealt with my suggestion, which comes from the Scottish Executive, that, at the very least, regulation-making powers for check-off and facility time might be given to Scottish and Welsh Ministers. That does not take away our powers here in the United Kingdom Parliament over employment law. We are still making the law; all that we are saying is that these regulation-making powers for those two areas should be given to Scottish and Welsh Ministers. If the Minister really is in listening mode, she does not need to agree to that today; all she needs to say is that she will look at it, discuss it with her colleagues and come back on Report.
Baroness Neville-Rolfe
My Lords, in the tradition of this House, I do not want to close the debate without saying that we are open to further discussion. We are, of course, open to discussing implementation of the Trade Union Bill in Wales and Scotland. To answer, as far as I can, the questions from the noble Baroness, Lady Randerson, and the noble Lord, Lord Wigley, my colleague Nick Boles spoke only last week to Roseanna Cunningham, Cabinet Secretary for Fair Work in the Scottish Government, and to Leighton Andrews, Minister for Public Services in the Welsh Government; both “stars” who have already featured in this evening’s debate. Of course, discussions are still going on in the context of the Scotland Bill, which is being scrutinised by a Committee of this House, and the draft Wales Bill, which the Government published in October. They are also part of a complex picture and need to be taken into account.
My Lords, it is late, we have discussed this at length and I ask noble Lords to withdraw their amendments.
Baroness Morgan of Ely
I thank the Minister and noble Lords who have contributed to this debate. I am sure the Minister has felt the pressure and intensity that Members of this House feel about this issue, particularly the devolution settlement, and why that is the issue we have focused on tonight. We have tried carefully not to wander into the area of the substance of the debate; this is really about the constitutional settlement of the United Kingdom. It would have been irresponsible of us in this place not to have drawn the Government’s attention to the fact that they are writing a law here which will be sent to the Supreme Court. That is irresponsible law-making. It is our job to make sure that people understand that that is what will happen if this is pushed through in its current form.
It is really worth underlining two other Bills going through the House at the moment, which the Minister was right to draw attention to: a Scotland Bill and a draft Wales Bill. Both directly contradict what is happening here. I urge the Government to think very carefully about consistency and respect for the devolution settlement, and to make sure that there is an understanding that legislative consent motions should be respected and agreed to.
I also ask the Minister to think carefully when she suggests that this is not relevant because it is employment law. We would argue that it is not simply about employment law but goes much further than that. It is about public services and the right of the devolved institutions to deliver public services in the way that they choose. Will the Minister think very carefully about how we proceed? Please will she look at the legal advice? I am sure she will not want to go down a route which will take us to the Supreme Court. I hope that she will listen to the passion expressed here tonight. We look in particular for her to think carefully about check-off and facility time, and to think again about accepting the amendments we have put forward tonight, but I beg leave to withdraw the amendment in my name.