Draft Important Public Services (Education) Regulations 2017 Draft Important Public Services (Transport) Regulations 2017

Chris Stephens Excerpts

Tuesday 31st January 2017 General Committees

[Margot James]

I will come back to that point, if the hon. Gentleman permits.

The Act received Royal Assent in May 2016. Today we are debating two statutory instruments that implement a 40% threshold for ballot mandate approval for important public services in the education and transport sectors. As well as the requirement that 50% of union members who are eligible to vote do so, 40% of all eligible members will have to agree with the proposed mandate. We propose that the 40% threshold for the two sectors comes into force on 1 March.

[Chris Stephens (Glasgow South West) (SNP)]

The Minister will know that during the passage of the Trade Union Bill, there was some debate on other aspects of balloting, such as electronic balloting. What is the Government’s direction of travel on e-balloting and secure workplace balloting?

[Margot James]

I can certainly deal with the issue of e-balloting. The Government committed to undertake a review of the potential for e-balloting in advance of strike action. A review has been established under the chairmanship of Sir Ken Knight and it will report by the end of the year.

We propose that the 40% threshold comes into force on 1 March. At the same time we will bring into force a number of other provisions in the 2016 Act, including a 50% turnout threshold for those who are eligible to vote, as I mentioned; additional information to be provided about the result of any ballot; two weeks’ notice of industrial action to be given to employers; new requirements to manage picketing and new reporting requirements. That ensures that the key changes to the way official industrial action is decided on and implemented are prioritised and come into effect as a package.

The purpose of the ballot thresholds is to rebalance the ability of union members to strike with the interests of the general public, non-striking workers and employers. The 2016 Act takes proportionate action to redress the balance and ensure that unions in the education and transport sectors have a strong democratic mandate before they take strike action. The impact of strike action is most severe when it takes place in the important public services that people and businesses rely on every day, particularly when people are left with no real alternatives. That is particularly unfair when strike action goes ahead with no evidence of strong support from a unionised workforce. That is why we have introduced a 40% approval threshold to apply to important public services such as education and transport, in addition to the requirement for a 50% turnout overall.

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[Margot James]

The hon. Lady makes a very good point. The legislation does not purport to condemn all strike action as anathema. It is merely about a requirement to better balance the interests of the travelling public with the rights of people, including her father, to take strike action. There is no concerted effort by the Government to undermine a person’s or a union’s right to take strike action; we are merely requiring that right to be tempered by a strong democratic mandate.

Our aim is to rebalance the ability of union members to strike with the interests of the general public, non-striking workers and employers. In introducing thresholds, we have taken proportionate action that does not ban strikes, but simply redresses the balance by ensuring that unions have a democratic mandate before they take strike action. International bodies have persistently been asked to consider whether UK legislation is compliant, but the UK courts, the European Court of Human Rights and the governing body of the ILO have accepted that UK legislation strikes the right balance between the rights of union members and the legitimate interests of others affected by their actions. That is precisely what the Trade Union Act and the regulations continue to do.

We have taken account of the guidelines on essential services that some of the ILO’s supervisory committees have referred to in respect of services where it may be legitimate to limit or prohibit strike action, but our objective is not the same and that is why we have deliberately used a different term. As I have explained, we want to protect the public from the immediate and adverse consequences of strike action taken with the support of a minority of union members. We are not stopping strikes that have a reasonable democratic level of support, such as those the hon. Lady just mentioned.

[Chris Stephens]

Why are the Government seeking to rush ahead with these statutory instruments today, rather than wait until the outcome of the e-balloting review? I say that specifically because of the Government’s assurances to the House of Lords and hon. Members of this place during the passage of the Bill.

[Margot James]

The report of the e-balloting review is not far off and the matter is separate from the requirement to secure a proper democratic mandate for strikes in these important public services.

In relation to the regulations, the Secondary Legislation Scrutiny Committee pointed out that the Government had committed to issue guidance to clarify which workers will be captured by each of the important public services listed, in order to assist unions and employers when they are assessing how a ballot should be conducted. The Committee’s view was that the need for such guidance raises the question whether the regulations are sufficiently clear and understandable for those affected. Furthermore, the Committee expressed regret that the Government had failed to publish that guidance in early December when laying the draft regulations in Parliament.

I am grateful for the Committee’s scrutiny. I can confirm that the Government have now published guidance to provide advice for unions on applying the 40% threshold in practice, with examples of workers who will be covered by each of the regulations. In drafting the guidance, we engaged with key stakeholders affected by the provisions to understand how the guidance can be most helpful. We listened carefully to their views and have reflected those in the guidance.

In conclusion, the Government believe that the regulations are proportionate and strike the correct balance between the interests of unions and those of members of the public.

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[Gill Furniss]

It is up to the management negotiating with trade unions to prevent strikes from happening. This legislation will be more acrimonious and will let the hon. Gentleman’s Government off the hook when it comes to strikes.

[Chris Stephens]

Given that only postal votes can be used, is it not difficult for trade unions running industrial action ballots by post that the number of post boxes in the UK has reduced sharply in the past five years?

[Gill Furniss]

The hon. Gentleman makes a very good point. We see with the closure of many post offices how the Government’s policy affects all walks of life.

The Government have also strived to give the appearance of a democratic process in the formulation of the Act and the associated regulations. The consultation on ballot thresholds in important public services received 205 responses from a variety of sources. As I will outline, those responses by no means gave a green light to the Government’s ideas, either on the definition of important public services, or on the restrictions on the ability to carry out proposed strike action.

These regulations must be seen within the wider context. They are part of a slew of regulations that limit trade unions. I thank the Government for listening to reason on the transition period before the rule change for political funds and await their new proposal. I welcome their changes to the initial proposals on the inclusion of ancillary workers in these categories, but make no mistake, the Act is an unnecessary, unjustified and disproportionate restriction on the right to strike for millions of working people.

Strike action in the UK is already at an all-time low. Figures from the Office for National Statistics show that 2015 had the second lowest annual total of days lost due to strike action since records began in 1891. What is more, the mechanisms already in place in the UK to deter or avoid strike action mean that most disputes are settled without strikes. There are more than four times as many strike ballots than there are actual stoppages. As Cathy Warwick, chief executive of the Royal College of Midwives, wrote shortly after the college’s first ever strike since its foundation in 1881,

“women needing urgent and emergency maternity care were getting it because midwives had sat down with management in advance of the day to ensure that a safe service would still be running, staffed by midwives, regardless of the strike.”

Unions are always careful in taking industrial action to offer essential cover and never to put at risk life and limb.

Asking members to take industrial action is always a matter of last resort. The priority for unions is to improve mechanisms for dispute resolution and is evidenced by the TUC initiative in the Southern rail dispute. The Government are pushing an image of trade unions as selfish organisations that threaten public safety, but that could not be further from the truth. Not only are new laws and regulations on strike action unnecessary, but they threaten to aggravate and unsettle the industrial relations we have in this country. The new laws set an unrealistic benchmark for industrial action, undermining the right to strike for many public sector workers. For example, in the sectors covered by the draft regulations, in a ballot where 50% of members take part, unions will need an 80% vote in favour before any strike action can go ahead. This is an unacceptably high threshold.

It is in the interests of workers, employees and the public for disputes to be resolved quickly and amicably. However, the new restrictions will undermine constructive employment relations in the UK, by forcing unions to put more effort into driving up ballot turnout and less into amicable settlements. The British Institute of Human Rights, Liberty and Amnesty International UK said of the then Trade Union Bill, now the Act:

“The government’s plans to significantly restrict trade union rights—set out in the Trade Union Bill—represent a major attack on civil liberties in the UK.”

The right to strike is protected by a number of international and European provisions, including the International Labour Organisation convention 87, the European social charter and the European convention on human rights.

The ILO defines essential services as those the disruption of which would endanger lives. In their response to the Department Business, Energy and Industrial Strategy consultation, Tonia Novitz, Alan Boggs and Ruth Dukes, professors of labour law at the universities of Bristol, Oxford and Glasgow respectively, said:

“Many of the government’s proposed ‘important’ services do not fall under this definition (for instance, education and transport).

We are concerned that the drafters of the Bill have introduced a term, ‘important public services’, which has no precedent under international or British law. This does not accord with the UK’s treaty obligations under the ILO Constitution or Conventions and is inconsistent with the established ILO jurisprudence regarding treatment of ‘essential services’.”

The Government have sought to defend the 40% threshold by citing decisions of the European Court of Human Rights that relate to cases from France and Spain, but those cases deal with the restrictions on the rights of police officers and military personnel. They do not justify restrictions on strike action by public sector transport workers or teachers.

On education, I note that the National Union of Teachers said in its consultation response:

“The ILO Labour Relations (Public Service) Convention 151 also provides that public servants must enjoy the same political and civil rights as other employees. The NUT would argue that any interference with this right must be fully justified and that the Government has failed, as yet, to provide any such justification.”

I have heard nothing from the Minister to convince me that the Government have provided any such justification for why teachers, as public servants, should have their political and civil rights in the form of their ability to organise strike action hampered in this way compared with other workers.

The Government seem to ignore the fact that strike action by teachers often carries significant sympathies from parents, who recognise that adequate conditions for teachers and a good teaching environment are in the interests of their children. It should not escape anyone’s notice that fee-paying schools are exempt from the regulations, as they are not public services. The regulations will ensure that public sector school workers have less capacity to strike than those working in schools that charge fees. The right to strike is a fundamental human right that should be applied equally to all workers.

In the consultation responses on education, 47% of respondents disagreed with the proposed list of bodies and workers. Although that contained a mixture of views, only 17% were in agreement. Some respondents felt that strike action in education services poses no significant risk to the public. Evidently, the Government disagree, but unless they can put forward a coherent case, we should go no further with the regulations.

As for transport services, out of 119 responses, 23% agreed and 38% disagreed with the proposed list, with respondents feeling that strike action in transport services was unlikely to pose risks to the public. The Prime Minister talks of the Tories as the party of the working class, yet in a country where trade unions are already heavily regulated, she wants further restrictions to rob workers of their right to take industrial action, leaving workers badly treated and essentially powerless. For all the reasons given, I cannot support the regulations and will press them to a Division.

[Chris Stephens]

It is a pleasure to serve under your chairmanship, Mr Evans. I refer Members to my entry in the Register of Members’ Financial Interests: I am chair of the Public and Commercial Services Union parliamentary group and a proud member of the Glasgow City branch of Unison.

I have led for the Scottish National party on all stages of the Trade Union Act. I see some familiar faces on the Government Benches who have been with me through that long process. They will know that there remains strong opposition from my party to the passage of the Act and these statutory instruments.

It is somewhat ironic that, at this moment, Members in the main Chamber are discussing the outcome of a referendum that would not have met the 40% threshold that the Government wish to impose on the trade union movement. The outcome was based on 37.4%. Under the rules that the Government wish to place on the trade unions, the UK would not be leaving the European Union if the 40% threshold the Government wish to impose on the trade union movement were applied.

Members in the main Chamber will, I am sure, discuss workers’ rights and the rights of the trade union movement as part of the process of leaving the European Union. Those who are suspicious about the Government’s commitment to maintain workers’ rights need only come here, to this Committee, to find out what really is going on and what the Government’s true motivations are.

My real concern is this. Throughout the passage of the Trade Union Act and during the ping-pong exercise, the former Minister for Skills, the hon. Member for Grantham and Stamford (Nick Boles)—as I said last week, I hope that he is recovering well—gave the House an assurance that he was taking seriously the implementation of e-voting and e-balloting for trade unions. If that review is to take place by the end of this year, it surely makes sense for these statutory instruments to be placed before the House then, once we know the outcome of that exercise, because the Act will only allow postal balloting for industrial action.

The Minister suggested that it is a modernising Act, but it is not—far from it. These Orwellian phrases we have heard so often during the passage of the Act need to stop, because members of the public and trade union members across the UK see right through it.

The response regarding what discussions have taken place with the devolved Administrations is rather unconvincing. The Minister was asked quite clearly what ministerial-to-ministerial meetings have taken place since the passage of the Act and before these statutory instruments were placed before us. It would appear that there have not been any from the Government. We need an answer to that question, because the Scottish Government and the Scottish Parliament are rightly opposed to the Act and are opposed to any attempt to gerrymander ballots with a 40% rule.

We in Scotland have bitter experience about 40% rules being passed into Scotland, when the Scottish Parliament was delayed by 20 years thanks to the imposition of a 40% rule in the Scottish referendum in 1979. I am fast coming to the conclusion that, just like last week, the Government are doing things in their own order, and I suspect that the Government will have to go away and think again about the application of these regulations.

The trade union movement already meets onerous legal conditions for industrial action. Indeed, the only reason the Act was passed in the first place is that the former Mayor of London, now the Foreign Secretary, had a unique approach to industrial relations in this country. Indeed, the industrial actions that are often referred to in support of the Act met every threshold the Government wish to place upon them.

Additionally, no equality impact assessment has been carried out for the regulations. I will tell the Committee who they will harm: the majority of trade union members who are often low-paid women who have had to undertake industrial action to secure equal pay, for example, and better terms and conditions.

As the shadow Minister has outlined, real concerns have been expressed by the ILO committee of experts, which is very concerned that primary and secondary education have been added to the Act, and we now see that further education has been added as well. I look forward to the Minister’s response, but my hon. Friend the Member for Airdrie and Shotts and I will oppose the regulations today.

[Alison McGovern]

It is a pleasure to serve under your chairship, Mr Evans. I intervened before to ask the Minister, for the purposes of the Committee’s information, if she could tell us what the genuine level of support for her candidature in her constituency at the last general election was. I am sure she will be thrilled to know it was a big 30%. The hon. Member for Dartford, who intervened before, did slightly better, reaching the dizzy heights of 34%. I imagine the Committee has now had its appetite whetted, to know what my own level of support in Wirral South was.

The people of Wirral South are extraordinarily fair-minded, passionate about social justice and get up every morning thinking, “I really hope my MP is speaking out on behalf of the myriad issues we care about,” but only 35% of them committed their vote to support me. None of us on the Committee can claim the true, justified mandate that the Minister seems to think is legitimate to require of public service unions. That is a ridiculous position for us to get into. It is a strange situation for us as democrats, as we no doubt all are in this House, to find ourselves casting forth our judgment on the levels of support that organisations must command for their positions, when we have found ourselves incapable and not up to the task of meeting this test ourselves. We have found it too hard.

There is a lot of discussion about hypocrisy in politics at the moment. I would never dream of accusing anybody here of being guilty of such a thing. At least, we must worry about the appearance of hypocrisy when we are unable to command the levels of support that we would ask of railway workers, tube workers, nurses, teachers and other public servants. They will understand the change that the Government are bringing in and fail to see how we could vote for it.

As my hon. Friend the Member for Sheffield, Brightside and Hillsborough said, the idea, which has absolutely no precedent in our democracy, is that such a threshold should be applied with a justification of protecting important public services. The Government seem to have plucked that definition out of thin air. The regulations would apply such a test in a way that has never been done before. I never thought that I would have to lecture the Tory party in government about the importance of tradition and precedents in our constitution, yet here we are: strange things are indeed happening in this Committee today, are they not?

There is no democratic precedent for this manoeuvre; the Government are completely making it up as they go along. The Minister did give a justification: she said we need to rebalance the interests. I look at the economy in our country today and think that if a rebalancing of interests is needed, it is a rebalancing towards working people, not away from them. The reality is that wages have not grown over the past decade. Since just before the economic crash, people have been doing steadily worse and their wages have continued not to grow.

It is a simple truth in our economy that there are only two things that successfully raise wages: one of them is the law and the National Minimum Wage Act 1998 introduced by my party, and the other is a trade union membership card in the back pocket. Those are the things that raise wages in this country—that is what all the evidence says.

[Chris Stephens]

Is that not the real game here? The Government have been caught out. They think the best way to stop teachers deciding to take national industrial action on pay is by imposing the 40% rule.

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[Chris Stephens]

Will the Minister give way?

[Alison McGovern]

Will the hon. Lady give way?

[Margot James]

I will not give way, because I am merely responding to the hon. Lady’s—

[Chris Stephens]

On a point of order, Mr Evans. For the record, I was on strike in 2011 to protect my occupational pension, which was being attacked by the Government.

[The Chair]

That was a point of information, not a point of order.

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[Chris Stephens]

I have heard what the Minister has to say. The first thing I would say is that in the industrial actions that have been referred to, the thresholds would have been met, so I do not understand why they have been cited.

There is a very real issue regarding the impact the measures will have on the devolved Administrations, particularly in Scotland. The UK Government have determined that employment law is entirely reserved. I am totally dissatisfied that no explanation has been given as to what discussions have taken place with the Scottish Government. That is a very real issue, where tensions can easily arise. Finally, it would be useful if the Minister told us what penalties would be applied to any local authority or devolved Administration that ignored the thresholds and allowed industrial action to take place.

Question put.