Strikes (Minimum Service Levels) Bill

Baroness Noakes Excerpts

2nd reading
Tuesday 21st February 2023 Lords Chamber

[Baroness Noakes (Con)]

My Lords, this is a modest Bill to ensure that people in our country are given a level of protection against extreme strike action in important public services, and I strongly support it. There has been a lot of misrepresentation about the Bill, notably in the debates in the other place. The right honourable Angela Rayner was wrong to say that it is

“a vindictive assault on the basic freedoms of British working people”.—[Official Report, Commons, 16/1/23; col. 66.]

The Bill does not extend the prohibition on strikes beyond the police and Armed Forces, but it is clearly the case that further prohibitions would be perfectly permissible. Prohibitions are much more extensive in other jurisdictions: public sector strikes are illegal in nearly four-fifths of states in the United States of America, and several EU states ban more strikes than we do. The Bill does not go there; it merely provides the means to set minimum service levels in just six categories of services that most people would regard as essential. There are many other services that people would regard as essential: my noble friend Lady O’Neill of Bexley, who is not in her place, mentioned local authority services in her excellent maiden speech and there are others. The Bill does not go that far.

The Bill is about a balance of rights: there is the right to strike, within the legal framework set for strikes, but this is not an absolute right. As with many other rights that are protected in our society, it needs to be balanced against the rights of others—notably, those whose lives are impacted by strikes, even though they are not a direct party to whatever dispute has caused them. The International Labour Organization allows minimum service levels to be set for both essential services and the broader category of public services of fundamental importance. The ILO hence recognises the need to balance rights.

Citizens have a right to a minimum level of transport services so that they may travel to work or for other important purposes, such as health treatment. All school- children, especially the most vulnerable, have a right to education. We all have a right to a level of healthcare and emergency services, and that goes beyond the minimalist life-and-limb cover. These are the sorts of rights that have to be weighed in the balance. Strikers may well want to maximise the impact of their strike action, but that will inevitably have an adverse impact on the lives of ordinary citizens. Citizens pay taxes which fund public services, and their rights to those services must be taken into account.

I regret the need for an Act of Parliament to govern the balance of rights, but it is absolutely clear that we need the Bill. On train strike days, sometimes 20% of train services have been available, but they were generally in the wrong place and at the wrong time for many working people. Striking ambulance workers agreed to minimum service levels, but this was done via an arcane derogation process at local level and resulted in a postcode lottery for gravely sick people. Teachers were not obliged to notify their head teacher whether they would be at work and very many did not do so, which made it impossible to plan for a basic level of education to be provided to the children who needed it most. It is the actions of the unions and their members in the current strikes that have led directly to the need for the Bill, and the latest sabre-rattling from the junior doctors merely underlines that need.

I strongly support the Bill, but I am not uncritical of the way that the Government are seeking to get it through Parliament. Parliament should not be expected to pass laws without an understanding of the scale and scope of the impact that they will have. Some very bad habits in relation to impact assessments emerged during the Covid pandemic, largely in, though not limited to, the Department of Health and Social Care. We must not tolerate a cavalier approach to impact assessments for primary or secondary legislation. An impact assessment for the Bill was passed to the Regulatory Policy Committee earlier this month, but that was after the Bill had completed all its stages in the other place. It should have been available before the Second Reading there.

This morning, the Regulatory Policy Committee published its opinion. The impact assessment is red-rated as not fit for purpose and the cost-benefit analysis is weak. I have not been able to read the impact assessment because the hyperlink on GOV.UK was not working this morning. I have just one question for my noble friend the Minister on this: will the Government update their impact assessment to meet the criticisms of the Regulatory Policy Committee before the Bill goes into Committee?

Your Lordships’ House is at its best when it reflects what is important to the people of this country. A recent YouGov survey found that two-thirds of those expressing a view supported minimum service levels, with only one-third against. Let us approach scrutinising the Bill with that in mind.

Strikes (Minimum Service Levels) Bill

Baroness Noakes Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

The Prime Minister made it clear that he does not want the UK to withdraw from the ECHR. To my knowledge, he has not voiced any opinion on the ILO, but I do not think that withdrawing from that is on the cards either. So it is not sufficient for the Minister to downplay this report or, frankly, to disparage the convention. It is incumbent on the Government Front Bench to address and answer the serious questions set out in the JCHR report.

[Baroness Noakes (Con)]

My Lords, I will make comments on two aspects. First, it is not the case that the Bill is retrospective in effect because, by definition, it applies only to future strike actions. The fact that the strike action might have been initiated before the Bill is completely irrelevant. It applies to protect people who are suffering from the lack of services in the future, so it is not retrospective.

[Lord Collins of Highbury (Lab)]

I do not understand why it is “completely irrelevant”. Is the noble Baroness saying it is irrelevant if people participate in a ballot, there is a democratic decision, a dispute is held, the mandate is proper, everyone knows their legal rights and responsibilities, and the unions have had to go through huge hoops to get there?

[Baroness Noakes (Con)]

I am. The need for the Bill has been established by a lot of rather irresponsible action by some of the unions which has completely disrupted the lives of ordinary citizens. Remember that the Bill is designed to protect the lives of ordinary citizens and to balance their rights against those that the noble Lord referred to. It will apply only to future strike action by workers—that is the most important feature.

Secondly, I will address the Joint Committee on Human Rights. Both noble Lords who have spoken struggled to paint this as a very damning report. It is not: it does not say that the Bill does not comply with international obligations but instead says things like it is “difficult to establish” or that it “arguably” contains insufficient provision. Although I have great respect for the Joint Committee on Human Rights, and particularly its chairman, who is an acknowledged expert in this area in her own right, it is not the arbiter on whether bits of legislation comply with human rights law. At the end of the day, it is for the courts to decide. The Government believe that it is within our international obligations, and there are good arguments for that. We should not take the view of one committee of Parliament as being determinative, even if that committee were clear and unambiguous in its findings, which it was not.

[Lord Cashman (Lab)]

My Lords—

Strikes (Minimum Service Levels) Bill

Baroness Noakes Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, I rise to support Amendments 3 and 4 in the names of the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady. First, looking at Amendment 3, which seeks to exclude health services altogether, I think the key question remains: who wants this legislation? As the noble Lord, Lord Balfe, who is not in his place, asked in relation to Amendment 1: who is asking for this power that the Government are legislating to grant them? We have the Health Minister in the Minister’s place. I hope he can inform the Committee which bodies within the National Health Service have been knocking on his door, asking to be given the powers that are set out in this legislation.

The noble Baroness, Lady O’Grady, quoted to us from the note that has been sent out by NHS Providers, which represents all the trusts in England, and it could not be clearer that not only is the legislation unwanted but it sees it as actively counterproductive to its efforts to work with the staff that it employs in order to deliver the service both on a day-to-day basis and during industrial action. We seem to be in a situation where the employers are saying that they do not want this, and the employees certainly do not want it, yet the Government are determined to stick their oar in and make a difficult situation worse. This potentially has significant short-term and long-term disadvantages that will be to the detriment of the health service.

I am sure the Government will say that this is about delivering health services to people in the United Kingdom, and we would agree that it is about that. The question is: what framework means that we are most likely to get those health services delivered effectively? It is one in which employers and employees are working hand in hand to deliver health services to people. It is not one in which we create artificial tensions between employers and employees, and it is not one in which we pass legislation and seek to impose measures that will increase those tensions and make things worse.

As well as NHS Providers, I have been contacted by a consultant who works in the health service, who said to me:

“Instead of focusing on minimum service levels on striking days, the Government should be taking action to ensure the NHS is safely staffed 365 days a year.”


We will come to amendments later on where we will talk specifically about that, but that is the prize—a 365-day-a-year service. That depends, crucially, on staff morale, staff recruitment—we all know that we have huge gaps right across the health service—and staff retention, which means making them feel valued. It certainly does not mean press-ganging them into working at times when they have exercised their legitimate right to withhold their labour because of an industrial dispute.

The consultant goes on to say:

“Instead of threatening workers and unions with heavy-handed tactics that put workers’ right to strike at risk, this means ensuring that there is meaningful engagement on pay and a commitment to enshrining and funding safe staffing. This would help stem the tide of doctors leaving the NHS every year for better jobs at home and abroad, in the best interests of the NHS and patient care.”


I asked the Minister this question at Second Reading; I will ask it again: is there anything in this legislation that the Minister can say, hand on heart, will help him and his department recruit more staff to the NHS and stem that flow away from the service?

On the specific consultations that the Government have put out, we now have one on the ambulance service; again, I have been talking to people who work in that service. First, I have to say that the consultation is one of those classics: if you ask people, “Do you want more or less service?”, who votes for less service? When the Government ask, “Do you want category 1 and category 2 or just category 1?”, I think we can reasonably predict the answer. But the consultation does not ask, “Do you want the Government to come to a fair settlement with ambulance workers so that you can have categories 1 and 2 all year round, delivered to a level of performance that would be a significant improvement on today’s level?” I think the Government would freely admit that they are failing on both categories today; again, we have to ask whether anything in this legislation will improve the service delivered by the ambulance service. There is nothing there.

The ambulance service points out that, if you include categories 1 and 2, that covers pretty much the entire service. It is pretty much business as usual that the Government are consulting on. In essence, they are asking, “Should we prevent ambulance workers going on strike?” That is the net effect of saying that the minimum service level is the entire service. Again, I think that there is some confusion there.

The ambulance service also points out that the Government are, in part, driven by the fact that they are failing to meet their targets. Now they are consulting on what should be in categories 1 and 2, so we may end up consulting on a minimum service that will itself have to change as the Government change their definition of what constitutes categories 1 and 2 because of the pressures on the ambulance service; for example, there are suggestions that some people may no longer be categorised as category 2 until a further assessment of their needs has been made. Again, we are consulting on something that may move as the consultation progresses. We have a problem both with the generality of the health service being included and around the specifics on the ambulance service.

I want to raise one further issue, which relates to the speed with which the legislation has been introduced. I am not a civil claims lawyer but I know that their job is to pursue all possible angles in favour of their clients. We also know that the NHS is already paying out more than £2 billion a year in compensation claims, including claims made for failures to deliver on the agreed levels of service for ambulances and emergency care.

This legislation could change that landscape in several ways. First, if the minimum service level has been defined yet there is still a failure, there will potentially be a claim against the Government who set that minimum service level. If I am a claimant lawyer, I am going to go for every angle; one of the angles is to say, “The minimum service level was insufficient so I am going to try to drag the Government into the case”.

If the minimum service level was set but the work notices were insufficient, I would go after the trust and try to bring it into the case, saying that the only reason my claimant suffered was because the hospital trust failed to deliver sufficient work notices. Even the existence of this law could fundamentally change the landscape for those claims. If you fail to exercise that law, which the Government keep saying is a measure of last resort, claims could come in to the effect, “You had a law for minimum service. I suffered at the hands of the NHS because there was no minimum service level in place, but the Government could have done something because the legislation was there”. I see the noble Baroness, Lady Chakrabarti, nodding, which is encouraging given her legal experience.

I hope that the Minister can say in response, “We’ve worked all this out, don’t worry. When we drafted the legislation, we figured out the effect of having law on minimum service levels, questions around work notices of minimum service levels and how the responsibility of the Government, the trust and others would factor into the landscape of compensation claims once all this has occurred.” I fear that the Minister may not have all that to hand and, frankly, that it has not been done. This is another example of what happens when you rush legislation. There are all kinds of consequences to this Bill because it was not introduced in a thoughtful, careful manner but to fill a government communications grid: “We have strikes; we want to show that we are doing something for the public; we will bring this in.” The health service element creates more questions than answers. I appreciate that the Labour Front Bench has tabled amendments that would remove that.

Amendment 4, which lists the different professions that might be expected to be included, is also interesting. The noble Baroness, Lady Chakrabarti, mentioned earlier that we need foreseeability. The fact that there is no foreseeability in a phrase such “health services” makes it hard for any of us, and certainly for those professions, to understand whether they are in or out. I suspect that the Government will say that where the Opposition would exclude a list of professions, they would include it. Even that would be better than what we have today. If they do intend to include physiotherapists, pharmacists and other workers in the legislation, they should list them in the Bill.

It is not acceptable to use a phrase such as “health services”, which does not inform those hard-working professionals. There is not one profession on that list that does not have a staff shortage right now. We have this list of professionals, but we do not even have the decency to say to them in the legislation, “By the way, at some point you may be subject to minimum service levels being imposed and work notices being sent to you as an individual professional in that job.” We leave it open. We leave it for them to guess.

Both amendments make sense, in that they test the Government’s rationale for including health services and they have thought through the implications for health services in the longer term and try to get more predictability and certainty. If a particular group of professionals are to be included, let us see them in the Bill rather than just saying, “Well, ambulance workers, yes, they’re clear; but for the rest, maybe, maybe not.” That is not good enough when we are talking about people’s essential rights and things which may affect them personally, as they will be press-ganged into coming to work against their wishes at some unknown future date.

[Baroness Noakes (Con)]

My Lords, the noble Lord, Lord Allan, says “Who asks for this Bill?” He then tries to portray that as a binary thing—either workers and unions, or employers, claiming that neither of those groups wants it. However, he and others who oppose this Bill are missing out on a crucial third group: the users of services. This is the Government acting on behalf of the users of services generally. By taking the power to create minimum service levels, they are giving themselves the power to act for the users of services if the need ever arises. Broad terms are used to allow the detailed minimum service levels to be devised within that. Obviously, when regulations are produced they must be very precise, because they will affect whether individual workers will have to comply with work notices.

I should also say that no employer is ever forced under this legislation to issue a work notice; it remains entirely voluntary. Noble Lords should start to see the Bill in a much broader sense, rather than that of trying to create yet more disharmony between employers and their workers.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support both the amendments. I have sat in my office all afternoon listening to this debate. At times, it was difficult to concentrate, simply because there was a degree of repetition. I do not blame noble Lords for that; I blame the Government—as usual. At least I got lots of old paperwork sorted, which was real progress for me.

Despite trade unions sounding the alarm on unsafe levels of staffing in public services such as hospitals for quite some time, the Government refuse to implement legislation ensuring safe levels of staffing on any day other than a day when workers have chosen to withhold their labour by going on strike.

These amendments lay bare the ridiculousness of the Bill. Under this legislation, the Government will force workers to go to work against their will, with the perverse outcome being that strike days could see services with a higher number of staff than on non-strike days. It sounds like slavery to me. Is it not slavery when you force people to work against their will?

The Government propose that this is done by employers writing out a list of names of workers who must turn up and work on a strike day. Unlike on a normal work rota, workers will not be allowed to call in sick, take parental leave, take bereavement leave or even be in hospital having had a major condition of some sort. This legislation drags the workers in and forces them into a temporary state of servitude. That goes against every single principle of common law, contract law and employment rights in this country.

I have a cunning plan which would save the Government on this issue; it would just need a few tweaks in the Bill. If the Government want to make it illegal to go below minimum staffing levels in hospitals and the ambulance service, why do we not do that 24/7 and 365 days a year but, instead of the unions getting fined, we fine the CEOs and Government Ministers? That way, if you want someone to be responsible for old people waiting eight hours for an ambulance, you put the legal responsibility on the people at the top, not at the bottom. This seems eminently sensible and much more practical. Let us have laws that apply to the people in charge rather than target the overstretched staff on the front line, who are struggling for better pay and conditions. The Government will not be able to deliver either my idea or the Bill as it stands. In fact, this Government is too incompetent to deliver a pizza, so why should they be able to deliver a Bill such as this one?

If the next Government have any sort of involvement with the Green Party, they should know that we have committed to repealing this legislation and all other anti-trade union legislation passed since the Thatcher Government—that will be quite an exercise. We can create safe, well-run public services by working together with workers and unions, not by using authoritarian laws to strong-arm them into the workplace no matter how badly their working conditions get. I hope that the Government see sense on this, but I can tell from the looks of noble Lords on the Front Bench that it is not going to work.

[Baroness Noakes (Con)]

My Lords, it is quite difficult to follow that speech. I do not think that anybody would want to encourage the dissipation of the Green Party in any Government, so the noble Baroness’s ideas will not go very far.

I will not talk about the NHS, which all noble Lords have spoken about so far; I will address only Amendment 13 tabled by the noble Lord, Lord Fox, but not in the context of the NHS, to which he addressed all his remarks.

[Lord Fox (LD)]

No, I did not.

[Baroness Noakes (Con)]

The amendment says:

“Levels of service set by regulations … may not exceed the lowest actual level of service … on any day”


in the previous 12 months. Let us take the example of train services. If we have the system closed because there is a lot of snow—which, I gather, there is at the moment in the north of England—the answer under the noble Lord’s amendment would be that the minimum level of service was no service. If one of the days in the previous 12 months had been a strike day, the answer might be no service. If any of the days in the previous 12 months were on a weekend or a bank holiday, which of course they would be, the answer would always be a very low level of service, which would not necessarily meet a minimum level of service for the workday population trying to get to work. I suggest to the noble Lord, Lord Fox, that his amendment is not correctly drawn.

Strikes (Minimum Service Levels) Bill

Baroness Noakes Excerpts

Committee stage
Thursday 23rd March 2023 Lords Chamber

My sixth and final point is this. When you sit and think, you must ask yourself, why is this Bill being put forward? Normally, as I understand the way we have traditionally been governed in this country, you work out the policy first and legislate second. What is happening in this Bill is that you legislate first and think second. Now that we turn to devolution, there is yet another problem. Had we proceeded in the right way, we would not be in the mess this Bill is getting us into. I suggest that if you look at the consequences for devolution, you see yet another reason why this Bill, a skeletal Bill, should not proceed. I shall add just one scintilla to that—it is a point I do not want to develop any further. This Bill is Henry VIII on stilts. Looking at a Bill of this kind, we have not yet examined whether you should put into such a Bill a clause that limits the Government’s power to override the devolution settlement. I do not know. This is a subject that we ought to be debating, but I think it unnecessary to add to the length of what has already been too long a speech on these points.

[Baroness Noakes (Con)]

My Lords, since the noble and learned Lord, Lord Thomas of Cwmgiedd, used what I said earlier in aid of his arguments, I thought I ought to say a few words. First, unfortunately I do not speak for the Government in any respect. Indeed, the Government are generally to the left of my views, so my views are indeed my own. I have said that this Bill is about protecting service levels, in particular for those who have paid through their taxes for public services to be provided to them. That is the aim of the Bill. The means of the Bill is via trade union and industrial relations legislation. That is a reserved matter, and I think the Government have to accept the point.

Having said that, I of course agree that the devolved Administrations should be consulted on minimum service levels because they are bound to affect their citizens. I believe that the devolved Administrations would want to be involved in any consultation, to put across the views of their citizens as to the appropriate minimum service levels that their citizens should be demanding. However, I do not think it goes beyond that, and I do not think it is necessary to go to the extent of the amendment from the noble Baroness, Lady Randerson, which talks about meaningful consultation. They are of course going to be consulted on these matters.

When the noble Baroness, Lady Randerson, introduced Amendment 14, she very carefully said that elected mayors should be consulted. That is not what Amendment 14 says. It says that regulations cannot be made

“without the consent of the elected mayor for that area.”

That would mean, for example, that any minimum service level which affected a train service between London and Manchester could be vetoed by either the elected Mayor of Greater Manchester or the elected Mayor of London—or indeed Birmingham. That seems to me to be complete nonsense. I believe they should be consulted because they will want to input the views that protect services for the residents in their areas, but we should not go as far as requiring consent.

[Baroness Bryan of Partick (Lab)]

My Lords, I speak in favour of Amendments 19 and 49 in the name of the noble Baroness, Lady Randerson, which try to mitigate in one and contain in the other the level of interference that the Bill intends to make into areas that are clearly devolved. This is in a long line of legislation that has trampled over the accepted responsibilities of devolved Governments. The United Kingdom Internal Market Act, the Nationality and Borders Act, the Subsidy Control Act, the Elections Act, the Levelling-up and Regeneration Bill and the retained EU law Bill are just a few of the Bills that have impacted on the devolved Administrations.

On this occasion, in the Bill’s list of six services to be targeted I found only one that was reserved and that was border security, though I take the point made by the noble Baroness, Lady Randerson, that airports and ports will be dragged into that. Health services, education, fire and rescue services, transport services and the decommissioning of nuclear plants are devolved responsibilities, and the elected Members of the Scottish Parliament and the Welsh Senedd are ultimately accountable for the delivery of these services. The Minister and his colleagues have no electoral mandate to interfere in these services. Not only does the Bill seek to allow government Ministers to interfere in devolved areas of competency but it does not even have the good manners to outline in the body of the Bill how they would use these powers. Parliament is yet again being asked to put its name to a blank cheque.

It may surprise the Minister to know that both the Welsh and Scottish Governments have respectful working relationships with trade unions in their countries. In Scotland, the fair work framework has a different model of industrial relations from that adopted by the UK Government. The framework states that there are many examples in Scotland and elsewhere of how the collective voice of trade unions working with employers has addressed the wide range of organisational challenges and contributed to organisational improvements. The Welsh Government are committed to the Fair Work Commission in Wales, which respects and encourages trade unions to have a significant role in workplaces, society and policy-making. How different that is from the approach taken by this Government. These fair work arrangements do not prevent industrial disputes but allow constructive dialogue between government, employers and trade unions, so that when disputes occur there is greater good will to resolve them.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Bryan, and to add to her remarks. I strongly support Amendment 49 and point out to the noble Baroness, Lady Noakes, that the phrase in Amendment 19 of consultation implying a view to meeting an agreement is particularly important because in this Bill we are talking about devolved competencies directly, and I am afraid the track record has not been that good. Indeed, the Bill seems to have been announced without any prior consultation with the Welsh Government at all, and officials have been reluctant to share substantive information relating to the Bill which is not in the public domain but does affect devolved competencies.

In paragraph 141 of Schedule 7A to the Government of Wales Act it would seem that legislative consent is required over aspects of health, education, fire and rescue, and certain transport services. But the Welsh Government appear to be set to vote overwhelmingly to refuse legislative consent, and for good reason. As the Government themselves have conceded, the services are

“run differently in England, Scotland and Wales and are the responsibility of Scottish and Welsh Governments respectively.”

With that responsibility comes a requirement to set pay and terms and conditions of service, and those cannot be disentangled from strategic and operational decisions taken in Wales and Scotland. To give those powers to Westminster and override the devolved legislations would effectively undermine their ability to run the services that they run as effectively as they see fit to meet the needs of the population—the population which have voted those devolved Ministers into their positions in government.

There is a different approach to the unions, as has already been said. There is a model of social partnership, which I am familiar with in Wales. It was notable that, even going back to 2015, the junior doctors did not go on strike in Wales whereas they did in England, and the current rail strikes have shown a different pattern of working because an agreement was made with Transport for Wales.

It certainly is not incidental that this has been included in the Bill, because it threatens the Welsh Government’s ability to maintain a model that is interwoven with those responsibilities, as I have said. In fact, those services are essential to the running of the devolved nations. The approach would undermine accountability in Wales, as the Bill provides no role for the Senedd, despite the strong argument that it has the competences to legislate in areas contained in the Bill. The Secretary of State being able to set minimum service levels for local services in most parts of England is already questioned by some, but it seems almost an affront to devolved responsibilities to say that that could override the responsibilities in the devolved nations.

The consultation process set out in the Bill fails to specify who should be consulted; it is whoever the Secretary of State sees fit, and they do not seem to have to pay regard to the outcome of that consultation. That means there is no role for the Welsh Ministers, who are actually responsible for running the services. If the Bill is passed, the backdrop to negotiations undertaken in Wales will be fundamentally altered. There is a concern—a valid one, I think—that that could be used for political ends, because there is no protection in the Bill from a Secretary of State who wishes to provoke or prolong a dispute for political ends.

Sadly, no Minister in Wales or Scotland can take comfort from assurances given and being told that they will be consulted. Similar assurances were provided over the financial powers in the internal markets Act, but those are now being used to ensure that Welsh Ministers cannot take the decisions over EU successor funds provided in the form of the shared prosperity fund and the levelling-up fund. I hope the Committee will see that in order to maintain the integrity of the UK, it will be important to take Wales, Scotland and, I think, Northern Ireland out of the wording in the Bill.

[Baroness Noakes (Con)]

Has the noble Baroness realised that the Bill does not actually require any employer in Wales to issue a work notice? The only thing that the Secretary of State will be doing is setting minimum service standards. The implementation via work notices is entirely at the option of the employers, which will be either the Welsh Government or one of the various Welsh bodies that are answerable to the Welsh Government. I understand the point that she was trying to make, but she was implying that the UK Government were interfering in the operation of the services, which the Bill does not come close to doing.

[Baroness Finlay of Llandaff (CB)]

I remind the noble Baroness that we have already had a debate over the difficulty of setting minimum service levels and the dangers thereof. Minimum levels for nursing have already been set in Wales, for example, so we cannot disentangle the one from the other. That is the point that I was trying to make.

--- Later in debate ---

[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.

Strikes (Minimum Service Levels) Bill

Baroness Noakes Excerpts

Committee stage
Thursday 23rd March 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is a great pleasure to follow the right reverend Prelate. We have already discussed at length the proportionality concerns about the minimum service level agreements being imposed per se, but now we get into the sanctions and consequences for trade unions in what will follow, but also for individuals. We must now talk not just about the vital human rights principle of proportionality that we discussed before but about the vital principle of non-discrimination.

This gives me the opportunity to reflect on an earlier exchange between the Minister and my noble friend Lady O’Grady of Upper Holloway. There was a dissonance about this concept of victimisation. As I understand it, the Minister was saying, “For goodness’ sake. It’s not victimisation to say that there needs to be a minimum service level agreement to protect the public, and therefore there have to be work notices”. However, what perhaps the Minister did not hear or understand is that when you give employers the power to pick and choose between individual employees, we are opening up the Pandora’s box of abuse of power. When we legislate in your Lordships’ House, we have to guard against potential abuses of power.

If employers, scrupulous or otherwise, are allowed to pick and choose between individuals, some people will never be on the list but other people will be, and sometimes the people will be selected for that list on grounds that include their race, sex, sexuality and possibly even their role within trade union activity. I think that is the point my noble friend was trying to make to the Minister, and this is the power that is being handed to individual employers, in contrast with years of struggle for protection against discrimination, including discrimination on the grounds of trade union activity as well as membership.

If, as I fear, the Minister will not pause the Bill or introduce greater parliamentary protection before the powers can be triggered in the first place, please will he look at the powers given to individual employers over groups and particular employees in the workplace, because it is invidious and, I think, very dangerous?

[Baroness Noakes (Con)]

My Lords, it seems to me that the noble Lords, Lord Fox and Lord Hendy, are finding yet another way to try to deprive the Bill of any effect. In their own ways, they are trying to make it entirely voluntary to take part in the provision of minimum service levels, if requested by an employer. That runs completely counter to the policy intent of the Bill.

If noble Lords think that the Bill needs to be modified in some way to reflect their concerns, it is incumbent on them to produce amendments which find a practical way through that. To simply, in effect, make compliance with a minimum service level work notice voluntary is unacceptable in the context of the Bill. Although I understand the points that the noble Baroness, Lady Chakrabarti, makes, those issues are already covered by discrimination law. The concern she has about being selected on the grounds of sex, sexual orientation or race is already covered by discrimination law and does not need to be protected again in the Bill.

[Lord Fox (LD)]

Does the noble Baroness accept that in Committee, there are two sorts of amendments: there are amendments which are very practical and designed to be used as a template for changing the Bill, and there are probing amendments? I point out that I made it very clear that the latest two groups I was speaking to were probing amendments. On that basis, I think her criticism is invalid.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness for engaging so specifically and constructively in the debate, but I do not think she appreciates just how difficult it is, even under the present law, for people to go to a tribunal, with or without the assistance of lawyers or their trade unions, to demonstrate that they were picked on for one of these reasons. Now, in this Bill, a specific protection against unfair dismissal is being removed. An employer will say, “No, no, X, Y or Z was picked for this other reason. They are essential to the service”. It just happens to be the noble Baroness, Lady Chakrabarti, who is essential to the service every time and not, for example, my noble friend Lord Hendy, who of course is the expert. If I am always essential to the service and he is not, it will be very difficult for me to demonstrate that it was discriminatory, when the whole purpose of the Bill is, as the noble Baroness said, to remove protection from unfair dismissal.

[Baroness Noakes (Con)]

The purpose of the Bill is not to remove protection for unfair dismissal; the purpose of the Bill is to ensure that minimum service levels can be guaranteed for those who rely on the services, and we are trying to find practical ways through that. I was inviting noble Lords to find ways did not simply rip the heart out of the Bill.

[Lord Hendy (Lab)]

I just say to the noble Baroness that there is nothing wrong with conformity being voluntary. The whole basis of the ILO jurisprudence is that minimum service levels and requisitioning should be agreed voluntarily between the unions and the employers. In most of the countries of Europe where they have minimum service levels, volunteers are sought to provide the minimum service. That is also true in this country. We have been hearing for days about the local agreements that are reached in all the six sectors identified here.

That is done on a voluntary basis, and the people who do the work volunteer to do it. They speak to their union, and the union says, “Somebody has to do it; you’re going to do it”, and they say “Okay, fine if that is the price of having the industrial action and bringing pressure to bear to maintain our standard of living, that is the price I am prepared to pay”.

There is nothing wrong with voluntariness. It does not detract from the rest of the machinery of the Bill in setting minimum service levels and issuing work notices, if that is really what the Bill is intended to do.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

My Lords, this group gives me the opportunity to speak to the noble Baroness, Lady Noakes. Earlier, she encouraged the Committee to be constructive when we debated whether an amendment was probing or constructive. Given the gestures from the Minister from a sedentary position, it is clear that, even if the Bill passes, there is room to specify these reasonable steps and new duties upon trade unions. That is my attempt to meet the noble Baroness half way and be constructive about a Bill that I think is hugely disproportionate.

With the greatest respect to my noble friend who just spoke, these amendments do not just expose a breach of Article 11, on freedom of association; they quite possibly expose a breach of Article 9, on freedom of conscience. I am afraid there are no right reverend Prelates here at the moment, but it is as if we were to say to the bishops, “We live in a modern, diverse democracy, even though we have an established Church, but it is now your obligation to actively encourage divorce and abortion.” Clearly, that would be ludicrous, and it is equally ludicrous to be saying to trade unions not only that, as indicated in Amendment 34, they should try to make their members aware of the legislation and of work notices, but that they should ensure compliance as well. The Government are making employers in relation to these public services the policeman for the Government, but it is a step too far to make unions the policeman for the Government as well—not least in the context of disputes which will continue to be lawful under this proposed legislation, but just some people will have to go to work.

Hence, I commend in particular Amendments 34, 34A and 35, which highlight that knowledge is one thing but ensuring compliance is another. They demonstrate at length that unions should not be disciplining their members for not going to work, and that picketing has to remain perfectly lawful, not least because most workers, we hope, or many workers, will still be entitled to go on strike, notwithstanding the minimum service levels and the specific work notices. The Bill needs to specify what is reasonable and what is required of trade unions.

[Baroness Noakes (Con)]

Does the noble Baroness agree that “reasonable steps” is a formulation used in a number of legislative formats? It has not been defined further on those occasions when it has been used in order to provide the flexibility to allow for the situation to be judged on its individual circumstances and, indeed, to allow for technological developments. What would have been reasonable, for example, in communication with affected workers 10 years ago could be quite different now. If we take the example of the duty to prevent bribery, “reasonable steps” is not defined in law and that is a virtue of the law, because it allows the situation to be judged at the time. That is why the Bill takes this pragmatic approach.

[Baroness Chakrabarti (Lab)]

I totally agree, by the way, with the noble Baroness that there are areas of our common law in particular, and some statutes, where the inclusion of the adjective “reasonable” by itself will do the trick. I disagree that it is appropriate here because we are asking unions to do something that is inherently counterintuitive to their raison d’etre, which is to organise workers, in extremis, to go on strike. If one is saying to the union, “You are now having to push against the grain of your whole existence, the existence of your organisation, and your freedom of conscience and your association, which you are entitled to under the convention and the ILO”, and if one is pushing them in the opposite direction, one has to be very specific and proportionate about the nature of that totally counterintuitive duty.