Strikes (Minimum Service Levels) Bill

Baroness O'Grady of Upper Holloway Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, I am grateful to all those who have contributed to this exciting—almost, in some respects—debate about the main issues we will discuss as the Bill progresses.

Let me start by addressing the point made by a number of noble Lords—including the noble Lords, Lord Collins, Lord Fox and Lord Hendy—on the report from the Joint Committee on Human Rights. Of course, we are grateful to the committee for its work, and, in the normal course of events, we will respond to the report in full. Let me say, before then, that this Government do consider that this Bill is compatible with the ECHR.

As the noble Baroness, Lady Chakrabarti, pointed out, on the introduction of the Bill I made a statement under Section 19(1)(a) of the Human Rights Act that the provisions of the Bill are compatible with convention rights. Indeed, I have to do so on all the Bills I introduce into this House, and I have been doing a lot of that recently. I say to the noble Baroness that this is a duty I take very seriously. I would not just wake up in the morning and sign a bit of paper. I respond to legal advice that I receive, as I do on every Bill, and I often go back and query that legal advice, because I take my duty to sign that statement seriously. I can tell the noble Baroness that I was happy to do so in this case, because I am confident that the Bill strikes the right balance between the ability to strike and the rights and freedoms of others.

It is a question of balance, and I am grateful for the comments from my noble friend Lord Henley, who is actually a member of the committee, in his helpful speech. As he pointed out, the report does not say that the Bill is not compatible with the ECHR. Regulations that set minimum service levels in specified services will, of course, need to be compatible with the ECHR, including Article 11, and the Government will ensure that they introduce regulations that are compatible. Obviously, failure to do so would result in a breach, and a court would be able to grant such remedy as it considers just and appropriate should a union or others take a matter to judicial review. I am sure there is a lot of thinking about that at present.

In response to the question from the noble Lord, Lord Collins, about when the provisions would apply, and the issue of retrospectivity, I agree with my noble friend Lady Noakes. It will of course apply only to future action. After Royal Assent, we need to lay the appropriate regulations, which would need to be approved by both Houses before the legislation can come into force.

The noble Baroness, Lady Donaghy, asked me whether employers can discriminate against trade union members when issuing a work notice, I am happy to confirm to the noble Baroness that the Bill is clear that employers should have no regard to trade union membership when they are issuing work notices.

[Baroness O’Grady of Upper Holloway (Lab)]

My noble friend Lady Donaghy also raised the issue of recommendations that refer to trade union activities. The real fear here is that a bad employer could use a work notice to victimise and discriminate against not only union members, which, as the Minister says, is covered by the Bill, but against elected union workplace representatives. I wonder whether the Minister can give us reassurance that moves will be made to ensure that that cannot happen. It clearly cannot be right that an employer could victimise elected union representatives in the work notice. We hope it would never happen, but we cannot rely on hope.

[Lord Callanan (Con)]

I think the noble Baroness was, in effect, asking me to consider amendment 4 from the JCHR, which is what the noble Baroness, Lady Donaghy, was referring to. I was about to come on to that. The noble Baroness, Lady O’Grady, is getting slightly ahead of herself. There are in fact later amendments, Amendments 27 and 28, tabled by the noble Baroness and the noble Lord, Lord Collins, that seek to achieve a similar effect to that recommended, and we are going to have a fuller debate on that in group 10. So, if the noble Baroness will forgive me, I will address those points in more detail when we get there.

To restate why this legislation is needed—because this has been a general debate—let me set on record the Government’s position that there needs to be a reasonable balance between the ability of workers to strike and the rights of the public, who work hard and expect their essential services, which they pay for through their taxes, to be there when they need them. The minimum service levels aim to restore this balance in order to protect the lives and livelihoods of the public from disproportionate impacts and results of strike action. This important protection should be afforded, in our view, to members of the public without delay, which is why we are opposed to the amendments seeking to delay the imposition of this legislation.

Amendment 1 seeks, in effect, to extend the impact that strikes can have on the wider public. It would ensure that strikes could continue for up to six months of the whole strike mandate period after the Bill comes into force without the relevant minimum service level being applied. Parties, including employers, unions and workers, will have sufficient notice of minimum service levels prior to their application via, for example, the consultation or parliamentary processes that will need to take place before those regulations come into force. So our view is that further notice is not necessary.

Amendment 50 seeks to delay commencement of all provisions of the Act, including the regulation-making powers, until two years after the day on which the Act is passed. My noble friend will be unsurprised to know that the Government do not support this amendment. Practically, the legislation will not take effect, as I have said, until the regulations are made to specify the relevant services that minimum service levels shall apply to and the levels of service that an employer can require its workers to provide in relation to strikes. This amendment would mean that the earliest point at which minimum service levels could be enforced in practice is two years after the Act is passed.

Amendment 51 would result in further delays that essentially duplicate the work and the report of the Joint Committee on Human Rights that has already been published, requiring yet another report before minimum service regulations are made. Again, we feel that this would be unnecessarily burdensome and serve no practical purpose, because these amendments would just delay the implementation of MSLs. I realise the Opposition would like to do that, but it is not the position of the Government. Therefore, we cannot accept these amendments, which, for no good reason or constructive purpose, would significantly extend the disproportionate impact that strikes can have on the wider public, on which lives and livelihoods depend. Therefore, I hope that the noble Lord will withdraw his amendment.

--- Later in debate ---

Moved by

[Baroness O'Grady of Upper Holloway]

3: The Schedule, page 3, leave out line 25
Member’s explanatory statement
This amendment would remove “health services” from the Bill.

[Baroness O’Grady of Upper Holloway (Lab)]

I am speaking to Amendments 3 and 4 which are tabled in my name and the name of my noble friend Lord Collins. There are many across this House who believe that the Bill is undemocratic, unworkable and incompatible with human rights and international law, but I want to focus on the specific impact on health services.

The Bill would have huge negative consequences for our NHS and for all of us who rely on the motivation, commitment and morale of health staff. I am sure noble Lords are aware that the NHS workforce disproportionately relies on the labour of women, who make up 75% of staff, and the dedication of black and ethnic minority staff, among whom trade union membership is highest. No doubt we will get on to the equality impacts of the Bill, but it seems appropriate to start by quoting the Equality and Human Rights Commission’s observations on this Bill. It says:

“In the human rights memorandum that accompanied the earlier Transport Strikes (Minimum Service Levels) Bill … the case for the lawfulness of similar provisions was made partly by distinguishing the Bill’s transport-focused clauses from measures affecting other sectors, including health and education. In that document, the Government recognised the importance of existing measures to mitigate the impacts of industrial action in health, education and fire and rescue services”,


and that

“healthcare sector trade unions already provide ‘life and limb’ cover during strikes”.

Will the Minister explain exactly why, in such a short period of time, the Government’s position on the inclusion of the health sector has apparently somersaulted?

The commission also expressed the concern that the Government’s human rights memorandum makes no reference to Article 4 of the European Convention on Human Rights on the prohibition of slavery and forced labour. Given that health workers who do not comply with a notice to work would face the sack, I would be interested to hear the Minister’s reply to the commission’s concern about that article.

Many of us have previously questioned the deeply flawed evidence base contained in the Bill. The Government have repeatedly defended themselves by claiming that minimum service levels are mainstream in other countries, but the fact remains that the key question is not about the existence of minimum service levels—after all, we already have those in the NHS. The real concern is whether such arrangements are imposed by Westminster government diktat, as the Bill seeks to do, or are negotiated voluntarily by agreement; that individual workers who do not comply can be sacked; that all striking workers could be stripped of protection against dismissal if their union is deemed not to be taking these mysterious, undefined “reasonable steps”; that injunctions could be more easily issued to stop a strike; and that union funds could be even more heavily sanctioned.

Health unions believe that the Bill is a distraction from the real issues of severe workforce shortages, patient safety and decades of underinvestment across health and social care, especially in relation to workforce supply and retention. The sacking of nurses on strike, as the Bill provides for, will only make that crisis worse.

There have been many pleas from individual health professionals. One GP who wrote to my noble friend Lady Thornton said they witnessed daily the huge pressures facing the workforce, which is still tackling the pressures of the Covid-19 pandemic and the huge backlog of care that that created. Waiting lists have soared while their pay has been eroded. The Government said the Bill would help to ensure patient safety on strike days, yet they have failed to take action to address the workforce crisis in health and social care.

It is already an established principle that healthcare unions co-ordinate strike action in a way that allows critical services to continue, and existing life-and-limb protections exempt certain categories of staff from strikes. Instead of focusing on minimum service levels on strike days, the Government should be taking action to ensure that the NHS is safely staffed 365 days a year. Those are just some of the reasons why health staff on strike have received such strong public support. The latest YouGov poll shows that around two-thirds of the public support nurses and ambulance workers who have taken strike action.

The NHS has a long and proud record of social partnership which is at the heart of industrial relations in the NHS between employers and unions. Of course, that social partnership does not guarantee that differences of interest will not arise, but the Bill risks all that good faith and good will, and it is not just unions who are saying so. Noble Lords will be aware of the concerns of NHS Providers, which says it is essential that a focus on legislative change does not worsen industrial relations at a time when it is imperative that the Government and the unions get around the table to seek a resolution and avert further escalation and disruption to patient care. It believes that the Bill risks damaging the relationship between NHS trust leaders and their staff, and between trust leaders and local union representatives, at a particularly fraught time, without addressing any of the issues underlying current strike action or providing a useful alternative approach to managing service provision during periods of strike action.

Concerns have also been raised by large private companies operating in the health sector that currently do not know whether they are in or out. Many of those companies are concerned that they will be caught in the net of this Bill, and they would like to know if they are. Frankly, many of them are telling us that they would really not welcome what they see as unwelcome interference in their own industrial relations. We have to contemplate that there may be banned private sector employers operating in the sector that may be brought into scope for the purposes of the Bill.