Draft Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023

Chris Stephens Excerpts

Monday 27th November 2023 General Committees

[John McDonnell]

I am not sure I want that on the record.

The Minister has responsibility for transport, but I do not think that any Transport Minister, including him—when we have gone through lengthy industrial relations problems on rail and many of them are being concluded, and when we might be entering a period of relative industrial peace on rail—wants to carry out such a hugely provocative act, which could pour petrol on the fire and start the problems up all over again, but these proposals could do that, because people will be angry.

As has been mentioned, the reality is that a number of staff, because of the safety-critical role they play, will lose their basic right to strike, against all the international conventions and international agreements we have signed up to and against the human rights legislation we have endorsed over the years. They will lose their right to strike.

In addition, if we take the evidence that has been put before us all the way through this debate from those in the industry, the train operating companies, when they have been consulted, have clearly said that this legislation and its implementation in this sector will increase disruption. Even the Government’s own original impact assessment said that, and we can see why. It is because the Government are interfering in the basic right of trade unions to represent their members—the very reason they were formed.

But it goes further than that. This statutory instrument is retrospective. We in this House understandably have concerns about retrospective legislation, as most people feel it is unreasonable and irrational, but this legislation, in particular, will apply to current disputes, where ballots have taken place quite lawfully and the dispute is going ahead.

In addition, the onus placed on individual trade unions will almost undermine the operation of the Government’s proposal. Let us take just one example. The employer has to give seven days’ notice—fair enough. The trade union is then required to identify which workers are in the notice and whether they are its members, and it then communicates with them directly. But the employer can come back on the fourth day and vary the order, either to delete or include other workers. To be frank, I think the administrative burden on trade unions is such that it will place the whole process in jeopardy.

There is another element, which I had not noticed before, because it was not debated when the original legislation was brought forward: the introduction of Government control of picket lines in a way that was never rehearsed in the original debate. I do not know how many Government Members have been on picket lines—but we are expecting trade unionists to supervise the picket line and behaviour in relation to communication with members of staff, and to have before them and check through the full list of all those who have been identified as being required to work, when it comes to whether the picket line members can just talk to them.

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

It is even more perverse than, isn’t it? Some of the people identified in the varied work notice could be trade union representatives—those we would expect to be on the picket line maintaining good order. It is a real concern that trade unionists are going to be identified, picked on and bullied through this legislation.

--- Later in debate ---

[Joanna Cherry (Edinburgh South West) (SNP)]

I am grateful for the opportunity to make a few comments about the human rights aspect of the regulations in my capacity as acting Chair of the Joint Committee on Human Rights. When the Committee published a very full legislative scrutiny report on the parent Act in March, we raised serious concerns about the Act’s compatibility with the UK’s obligations under international law, in particular the rights to freedom of assembly and to freedom of association under article 11. We share those concerns in relation to these regulations and the way in which they have been framed. As the Minister is aware, the European convention on human rights is, thankfully, still part of our domestic law, due to the survival of the Human Rights Act 1998. Article 11 does not refer expressly to the right to strike, but it has been interpreted as covering the taking of strike action—in a case brought against the Russian state, ironically.

When the Joint Committee on Human Rights took evidence from international law experts, the only country in the whole of Europe they could think of that had similarly draconian legislation to the United Kingdom was Hungary, as well as Russia, of course, although Russia has now left the ECHR—rightly so, after the invasion of Ukraine. I am not sure that the UK Government should want to be in the same grouping as the Government of Hungary, but by bringing in this draconian legislation, they are.

Article 11, as I said, has been interpreted as covering the taking of strike action. The European Court of Human Rights has also referred to requirements set down by the International Labour Organisation when assessing compliance with article 11. I know from my recent meeting with the TUC that it has reported the Government to the ILO in relation to the parent legislation, and it is also concerned about these draft regulations. In legal terms, a qualified right to strike is also provided for by article 8 of the international covenant on economic, social and cultural rights and article 6.4 of the European social charter, both of which bind the United Kingdom in international law.

Compliance with article 11 of the ECHR requires that any restrictions on strikes are

“in accordance with the law”,

which includes a requirement that the consequences of the law must be foreseeable for those it affects—we heard earlier that perhaps that is not so in the draft regulations. The restrictions must also be

“necessary in a democratic society”

to meet a “legitimate aim”. That condition requires the restrictions to meet a “pressing social need” and for them to be

“proportionate to the legitimate aim pursued”.

I very much question whether these draconian regulations are proportionate to the aim being pursued.

The Committee might recall that at the tail-end of the year before last, the Government introduced a Transport Strikes (Minimum Service Levels) Bill, which had an alternative mechanism in it. That was going to be based on negotiation and independent resolution of disagreements about minimum service levels. That kind of approach would reflect standards set out by the International Labour Organisation, and would involve less interference with article 11. It would therefore be more likely to meet the requirement of proportionality.

The Government have never adequately explained why they went from initially proposing negotiation and an independent resolution of minimum service levels to the draconian imposition of them. I will be interested to hear if the Minister has been able to come up with an answer to that.

As I said, the Joint Committee on Human Rights had similar concerns about the draft regulations as we did about the Act. Last week, in my capacity as acting Chair, I wrote to the Secretary of State for Business and Trade setting out our concerns about the regulations. In doing so, I was very conscious of the fact that the consequences of employees failing to work as required by a minimum service level imposed through a work notice, and of trade unions not taking reasonable steps to ensure that their members complied, would include a loss of automatic protection against dismissal for participating in a strike. That is a big deal.

Sometimes, Government Front Benchers talk about the rights of the public as though somehow those rights were in conflict with the rights of trade unions in exercising the right to strike, but trade unionists and workers are members of the public. They face very straitened times at the moment, with the cost of living crisis, and some people are struggling to make ends meet. If people are struggling to make ends meet and their wages are not being raised in line with inflation, in particular in relation to energy bill inflation, the only option they have is to withhold their labour in a dispute. It is a fundamental part of our democracy that they should be able to do that.

[Chris Stephens]

I am grateful to my hon. and learned Friend for her excellent speech. She is correct to say that the Government do not support decent wages for workers. I go back to the point that she made about protections from dismissal, because she is articulating the fact that, under this legislation, anyone could be dismissed without the right to an employment tribunal. Can she name any other groups of workers who do not have that basic right?

[Joanna Cherry]

The Joint Committee made that point in our initial report. A trade union’s involvement in an illegal strike could result in damages of up to £1 million. Any individual worker who participated in a strike that was found to have been illegal could be dismissed. The difficulty with these draft regulations is that workers and trade unions may not be able to foresee the legality of action, which is why the penalties are particularly concerning. We pointed out that lesser penalties for individuals—suspensions rather than dismissals— would make interference with the right to strike more proportionate.

--- Later in debate ---

[Jess Phillips]

rose—

[Chris Stephens]

rose—

[Huw Merriman]

I will not give way. I have been very generous with my time.

It has been suggested that the regulations will just cause rail workers to go off sick. Obviously, that is a contractual employment matter; no one is allowed just to go off sick under the terms of their contract. It will be down to employers to determine whether to use the work notices. They will then determine how the work notices operated, see how they worked, and decide whether individuals’ behaviour needs to be looked at, but I would not expect anyone in the rail industry, good people as they are, to go off sick unless they were sick. I am sure that everybody on the Committee would agree on that.

I will address the points made by the hon. and learned Member for Edinburgh South West. With regard to article 11, there has to be a proportionate approach. That will be a legal test, and we believe that the test is met. I believe that she also referred to the RPC impact assessment not being published. As requested, we provided further work to that body on 7 November. The RPC is now considering the input we made, and we wait to hear from it. A view was taken that information on matters relating to the umbrella Act would not need to be provided under the regulations, because that was for the umbrella Act. The RPC wanted more information, and we were happy to provide it. The impacts on small and medium-sized businesses, which will differ across the rail network, was another matter to be addressed. We take impact assessments seriously in the Department; we have a very good record of delivering them, and will continue to work to ensure that they are delivered.

The regulations make possible a considerable improvement in the service that can be delivered during rail strikes. They will support passengers who are making important journeys, including to work and to access vital services, and will limit strikes’ impacts on the economy. However, that is carefully and proportionately balanced with workers’ ability to take strike action. Although I am sure we all hope that strike action can be avoided, when they do take place, the regulations will provide a means of addressing the disproportionate impacts that strikes can have on the public, communities and businesses. I hope that the Committee will join me in supporting the regulations.