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

Huw Merriman Excerpts

Monday 27th November 2023 General Committees

[The Minister of State, Department for Transport (Huw Merriman)]

I beg to move,

That the Committee has considered the draft Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023.

It is a pleasure to serve under your chairship, Sir Edward. The regulations will be made under powers conferred by the Trade Union and Labour Relations (Consolidation) Act 1992, as amended by the Strikes (Minimum Service Levels) Act 2023. The purpose of the regulations is to set minimum service levels that can apply to specified services during passenger rail strikes. These minimum service levels are designed to balance the public’s need to make important journeys and the impact of rail strikes on the economy on the one hand, with the ability of rail workers to take strike action on the other. It is my hope that strike action can be avoided, but the regulations will mean that when strikes take place, the rail industry can provide an improved and more consistent service, in a way that is proportionate and fair for all parties.

Let me give some background to the regulations. Strike action in the rail sector has occurred frequently in recent years, and has a significant impact on people’s ability to travel. Since 2019, there has not been a single day when there has not been either a strike on our railways, or mandates for strikes outstanding. The result has been many periods of disruptive strike action, in some cases resulting in the suspension of all rail services on affected routes. Between June 2022 and November 2023, there have been 42 days of widespread disruption caused by strikes. That can have considerable consequences for the passengers and communities affected. People often struggle, or are unable, to travel to work. Others have difficulty accessing vital services, such as education and healthcare. Businesses and the wider economy suffer. Enabling a minimum service to operate during rail strikes is a means of protecting against disproportionate impacts of strike action.

The Strikes (Minimum Service Levels) Act, passed on 20 July this year, establishes a clear framework for implementing minimum service levels. The Act amends the Trade Union and Labour Relations (Consolidation) Act 1992 to give the relevant Secretary of State the power to make regulations setting minimum service levels for specified services in six key sectors, including transport. In addition, the strikes Act sets out the framework through which minimum service levels can be deployed. It gives employers the ability to issue a work notice to a trade union if a strike is called on a service specified in the regulations. The work notice must set out the staff whose are reasonably necessary if the minimum service level set out in the regulations is to be met, and the work that those staff must undertake. The trade union must take reasonable steps to ensure that the trade union members identified in a work notice comply with its requirements.

The regulations for passenger rail specify three categories of service that minimum service levels apply to, and the associated minimum service levels. Category A is train operation services. Category B is infrastructures services, and category C is light rail services.

[John Spellar (Warley) (Lab)]

The Minister says that the trade union should ensure that its members comply with the work notice. What mechanism should it use to ensure that?

[Huw Merriman]

I will come back later in the debate to the right hon. Gentleman’s point about the action that we would require trade unions to take—or rather, not take—to ensure that the standard is met.

Let me explain categories A to C. Category A covers train operation services provided by passenger train operators under agreements with the UK Government, including services provided as operator of last resort, and by devolved Governments, and local transport authorities and executives. It therefore excludes services provided by open-access and freight operators; heritage and tourist services; and international train services that start or finish outside Great Britain. The minimum service level for train operation services is the provision of those services necessary to deliver the equivalent of 40% of the operator’s timetabled services, as shown in the most recently published National Rail timetable, during the strike.

[Vicky Ford (Chelmsford) (Con)]

My constituency of Chelmsford has a particularly busy train station. Indeed, I am told it is the busiest two-platform train station anywhere in the country outside London. It is used by many people to commute to work, and by many young people to get in and out of schools and colleges. I am absolutely delighted to support the regulations, because train strikes have made those people’s life an absolute nightmare. Does that 40% figure mean 40% across the whole day, or will the 40% rate apply in the rush hours, so that my young people can still get to school or college?

[Huw Merriman]

I thank my right hon. Friend for her point. The 40% of train operation services is 40% of services across the train operator’s timetable as a whole. It applies for as long as that timetable runs. I will go on to talk about category B, because that is hours-specific guidance.

Category B covers services listed in the regulations that are provided by infrastructure managers. During strikes by railway infrastructure workers, the minimum service level is the provision of services between the hours of 06:00 and 22:00 on the priority routes that are listed in the regulations, and on certain enabling infrastructure within a 5-mile radius of the priority routes, including connections to depots, sidings, and rail freight terminals.

Category C covers train operation and infrastructure services provided on the 11 light rail systems specified in the regulations. The minimum service level is the provision of services necessary to deliver, during the strike, the equivalent of 40% of timetabled services as shown in the most recently published timetable issued by the operator of the light rail service.

We have designed the minimum service levels to address appropriately the type of strike action that we typically see, and to ensure that the levels are operationally viable for employers. The minimum service levels are intended to achieve a suitable and proportionate balance between delivering benefits to passengers and the wider economy, and workers’ ability to strike. Our work has been informed by extensive consultation and engagement, including a public consultation between 20 February and 15 May of this year, and consultation with train and infrastructure operators, passenger representative groups, unions, and a wide range of other stakeholders.

Once in force, the regulations will apply to any future strikes, even if the mandates for those strikes predate the primary legislation, which received Royal Assent on 20 July this year. That will allow employers in the rail industry to use these regulations as soon as they come into force, should they choose to do so. The Government have identified passenger rail as a priority for minimum service levels. These regulations deliver on that commitment, and deliver on the 2019 manifesto.

[John Spellar]

Will the Minister give way? He said he would.

[Huw Merriman]

I am not giving way. I said I would come back before the end of the debate on the points the right hon. Gentleman made.

The regulations mean that train operators will be able to provide the equivalent of 40% of their timetable during strikes, whereas on some recent strike days, a number of companies have been unable to run any effective service at all. During full-day infrastructure strikes, priority routes can be open for 16 hours, instead of the 11 hours provided for under the industry’s current contingency arrangements, with some additions to the routes normally provided. Importantly, this will enable industry to encompass both the morning and evening peaks, so passengers will have more certainty around getting to work and returning home in the evening. These regulations are a positive step towards addressing the impact of rail strikes in a proportionate way. I commend them to the Committee.

--- Later in debate ---

[Huw Merriman]

I thank all right hon. and hon. Members for their points. I should start with the right hon. Member for Warley, given that I said I would come back to him. His question was along the lines of what steps will be required. It is a generic test—it is a legal definition that one would look at. I can read it to him. It is not off a blue Post-it note; it is actually in the guidance. To paraphrase, when a work notice has been issued by a relevant employer, a trade union is under an obligation to take reasonable steps to ensure that its members named in the work notice comply with its requirements. In that regard, there is not that much of a role to play. I should make it absolutely clear—I think there were errors in some hon. Members’ starting points—that a work notice makes no differentiation between whether an employee is a member of a trade union or not, or whether they want to work or not. It is a generic test in that sense.

On the point made by the hon. and learned Member for Edinburgh South West, certain individuals may therefore find themselves on a work notice more than others, so some regard will be given to ensure that if a work notice has been given to an employee in one particular industrial action, they are not taken up the next time to ensure they have their right to strike. To go back to the right hon. Member for Warley, it is more that the trade union should not take any steps to stop that individual coming to work under a work notice, rather than it being required to do anything, but it is a test. I worked as an in-house lawyer for 18 years, and I often looked at what reasonable steps meant and how I would interpret that. There is enough precedent in court to do that.

[John McDonnell]

It is absolutely critical to get this clear. If a trade union leader engages in a debate during a dispute and argues that the offer from the employer is not satisfactory, and therefore that there should be a strike and people should take industrial action, does that influence the requirements of taking reasonable steps, or does it go beyond reasonable steps?

[Huw Merriman]

What the right hon. Gentleman is describing is the calling of industrial action in the first place. The idea behind these regulations, of course, is that, when industrial action has been called and an employer chooses at their discretion to issue a work notice—I will come back to that, because it is key that it is not the Government but the employer who decides—that is where the determination comes in. It is whether the trade union, after the work notice has been issued, is taking reasonable steps, so I would differentiate in that regard.

[John McDonnell]

So if that debate takes place while the strike is on, and the trade union general secretary urges their members to continue with the strike, does that influence it? Is that part of undermining and encouragement?

[Huw Merriman]

Well, I am going into a lot of detail here, and that would ultimately be for a court to determine. I suppose the right hon. Gentleman is asking what happens if a person is known to be on a work notice and somebody reads out, “X must ensure they are taking industrial action.” The courts might argue that that is not a reasonable step, but hopefully our examples have given enough clarity.

Again, I want to be absolutely clear on this point. I have a great deal of respect for the hon. Member for Paisley and Renfrewshire North, and I was interested in the point he made about Scotland. It is absolutely clear that it is down to each individual employer to determine whether they wish to issue work notices or whether they are able to gain enough traction from the workforce without the issuance of work notices. That is not a matter for Government; it is down to the employer. I was intrigued that the hon. Gentleman made it pretty clear that he would not give the same freedom to employers when it comes to ScotRail, because he seemed to intimate that it would not be taking part. He seems to be taking more of a forthright view of what the employer should do than the Government.

[Gavin Newlands]

ScotRail is owned and operated by the Scottish Government, who have been very clear in their attitude to this legislation: they will not issue work notices. While I am on my feet, I want to quickly ask about Network Rail, which is obviously a reserved issue that comes under the auspices of the Department for Transport, but it operates slightly independently in Scotland. Some of its workforce will potentially fall under a work notice for DFT, but obviously a lot of network in Scotland is used only by ScotRail. How will that work?

[Huw Merriman]

There are interesting parallels. When I talk about train operators, I also mean the operators of last resort: Southeastern, the east coast main line and TransPennine Express. They are under the same control that he referenced the Executive in Scotland having. We, as the Government, will treat those with the exact same autonomy, and will not be autocratic; we will not tell them what they must and must not do. There is talk of this legislation being controlling, but we are demonstrating that we are not being controlling, whereas the hon. Gentleman is demonstrating that he would perhaps intervene, which is obviously a policy matter for him.

Network Rail is, of course, an arm’s length body. It will be down to Network Rail across the whole of Great Britain to determine whether it wishes to use the work notices, when it comes to category B. That will be a matter for Network Rail in Scotland, as it will be in England, and not for me, the hon. Member or the Scottish Executive.

I want to come back to a point that the hon. Member for Portsmouth South and others mentioned: safety. Let me be absolutely crystal clear—this is why we have the safest railway in Europe—that there will be no compromise when it comes to safety and these regulations. Those are not just words. Everyone needs to remember that we already have a minimum service; it is the key route strategy, and it operates right now, but our contention is that it does not operate to the same extent—it is about 20%. Safety is the most important ingredient during a strike day, as it is during a non-strike day. There will be no difference to that, as far as the regulations are concerned; safety will always be paramount in the railways.

[Jess Phillips (Birmingham, Yardley) (Lab)]

I wonder whether the reason that we have one of the safest railways in the world is the same reason that my family and I do not have fingers missing from industrial accidents. Maybe the people we should thank for that are the trade unions.

[Huw Merriman]

Of course I pay tribute to everybody on the railway who takes safety so seriously, but it is fair to say that we had trade unions when we did not have such a safe railway, and we have them now that there is a safe railway. That seems to suggest that it is the entire railway family that makes railways safe. We have the independent Rail Safety and Standards Board, and we will ensure that safety is paramount on the railways.

I will touch on freight. Freight is not included in the regulations. That was part of the consultation; the freight industry did not wish to be included, but, of course, freight benefits from the regulations. If there is an infrastructure strike and more of the key route network can be opened up, that means that more freight can be delivered, as well, which is important.

I come back to a point made by the hon. Member for Portsmouth South that was slightly contradicted by other hon. Members. That was that the Secretary of State should get to the table and deal with the trade unions. Of course, we have had some deals with the trade unions. According to the right hon. Member for Warley, the Government want the industrial action to continue, and the right hon. Member for Hayes and Harlington said that the Government ultimately control all train operations. If we are both controlling and making deals, that must mean that the Government have got round the table and had those discussions; I certainly know about the discussions that I have had. Or perhaps the right hon. Gentlemen pluck out arguments that suit them. When it comes down to it, we want industrial action to be settled. We welcome Transport Salaried Staffs’ Association and Unite the Union settling their industrial action, and it looks as though—we will find out on Thursday—the RMT has settled its action as well.

We do not want to use these regulations, because we would rather there were no strikes at all. The Opposition claim to be the party of the workers when it comes to the rail workers, but not the workers who use the trains. A train driver is paid £60,000 for a 35-hour, four-day working week—we have an offer on the table to increase that to £65,000—but people on those trains who earn a lot less are inconvenienced, and cannot get where they are going, because there is no proper minimum service. I have a constituent who writes to me to say, “I’m on a zero-hours contract; when train drivers go on strike, I don’t get the opportunity”—

[Jess Phillips]

Why don’t you ban those contracts, then?

[Huw Merriman]

The key is to ensure that those individuals have the right to go to work. It may be asked, “Why don’t you ban zero-hours contracts?”. I am pleased to hear that that is now Labour policy. We want to ensure that those who want to go to work, and who are not as well paid as train drivers, have the choice to do so. That is the balance, and the measures are proportionate.

[Mark Eastwood (Dewsbury) (Con)]

I should declare that, surprisingly, I am a member of a trade union—a moderate one, I have to say. I have heard a lot of noise from the Opposition about safety and workers’ rights, but not much about the passengers. Does the Minister agree that the only thing Labour cares about is the flow of money from their union paymasters?

[Huw Merriman]

My hon. Friend has said it, and obviously he has the experience to do so. It is a fair point that needs to be considered. Through the regulations, we are taking a proportionate approach that still allows those who wish to strike the right to do so. Equally, it allows those who wish to go about their lawful business—to go to work, go to school, get skills or go to their health appointment—the right to do so. Those people deserve that right. We should be on the side of people who really need train services.

[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.