Strikes (Minimum Service Levels) Bill

Jacob Rees-Mogg Excerpts

Committee stage
Monday 30th January 2023 Commons Chamber

[The First Deputy Chairman of Ways and Means (Mr Nigel Evans)]

Order. I remind Members that if they were here for the openings of both speeches, then yes they can make a speech in Committee, but if they were not they cannot. If they have been here for what I would say is a decent time, then they are by all means able to make interventions.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

It is a pleasure to follow the right hon. Member for Ashton-under-Lyne (Angela Rayner). I am a supporter of the Bill. I think it is a good and proportionate Bill, but it is badly written. What the right hon. Lady said about Henry VIII clauses is absolutely spot on. Indeed, should the socialists ever be in government in the future I hope they will remember what she said, because skeleton Bills and Henry VIII clauses are bad parliamentary and constitutional practice.

It seems to me that it is hard to describe the right hon. Lady as having been wrong for tabling amendment 101— I will not vote for her, but I say none the less that she is far from being described as wrong. Clause 3 suggests:

“Regulations under this section may amend, repeal or revoke provision made by or under primary legislation passed…later in the same session of Parliament as this Act.”

On what basis can any Government claim to have the power to amend legislation that has not yet been passed? The only argument for doing so, which no Government would wish to advance, is incompetence. The only way to pass a subsequent Act without amending it before it is passed is if we have not noticed what it was saying in the first place, and I cannot understand why a Government would wish to put such a measure in a Bill. Indeed, I am puzzled as to how clause 3 managed to get through the intergovernmental procedures that take place before legislation is presented to the House. I do not understand how the Parliamentary Business and Legislation Committee managed to approve a Bill with such a wide-ranging Henry VIII clause and which fails to set out in detail what powers the Government actually want.

I will support the Bill because its aim is worthy, but the means of achieving that aim are not properly constitutional. Henry VIII powers, it has been established, should be used exceptionally or when there is no other alternative. During the passage of the Coronavirus Act 2020 it was perfectly reasonable to have Henry VIII powers. Why? Because the Act was brought forward extremely quickly, there was little time to revise it and there was not an enormous amount of time to work out precisely what revisions to existing statute law may be needed. Emergency legislation falls into that category. But this is not emergency legislation; this is a Bill that we in the Conservative party have been cogitating about since at least our last manifesto, if not back to about 2016. I have supported it all the way through. I wanted the Bill to come forward. I think it is the right thing to be doing, but there is no excuse for failing to do it properly.

[John McDonnell]

I think the Conservative party has been contemplating this since the Combination Acts of the 18th century. Anyway, strange alliances have been formed over the years on this issue. If the right hon. Gentleman recalls, an alliance was formed over the Civil Contingencies Bill, and we had a concession from the Government on some of the legislation regarding at least a super-affirmative mechanism that would give the House a bit more influence to amend statutory instruments. Would he be in favour of that?

[Mr Rees-Mogg]

I am slightly more ambitious than the right hon. Gentleman, because I think that, in and of itself, clause 3—I hope Opposition Members will take note of this—is an argument for the existence of the House of Lords. I hope that their lordships will look at the clause and say, “That is simply not something we can pass into law as it is currently phrased.” The Government must accept amendments, and I hope their lordships will vote through amendments that clarify and set out in detail the powers that are desired.

Other than urgency, there are only two reasons for bringing forward extensive Henry VIII powers. One is that the issue is too complicated to determine. That is problematic, because if it is too complicated to determine for primary legislation, how can it be sufficiently set out in secondary legislation? That probably means that the secondary legislation in and of itself will not be well formed. This is where the Government’s interest—the Executive interest—and the legislature’s interest combine, because if the House passes good, well-constructed legislation, it is much less susceptible to judicial review. There is a Treasury Bench interest in good, well-crafted legislation, which, as I have been saying, this Bill is not. That is why the Government should be keen that the House of Lords, in the time available and with the help, I hope, of parliamentary counsel, will be able to specify the powers more closely.

[David Linden]

It is a pleasure to see the right hon. Gentleman back on the Back Benches as part of the awkward squad. Does he agree that part of the reason why we have ended up in this mess is that the Government have rushed the Bill, with a programme motion that allows for only five or six hours on the Floor of the House? They are attempting to ram it through and perhaps intend to use it as a stick or as a carrot to dangle during trade union negotiations. This is not thoughtful legislation; this is being rammed through, isn’t it?

[Mr Rees-Mogg]

I do not think there is any great need to “ram it through”, as the hon. Gentleman phrases it. The secondary legislation will not be written in time to affect the current set of disputes. Indeed, if the secondary legislation is already written and is in a position to be used, those measures ought to be in the Bill in the first place and there would be absolutely no reason for not having them. It is hard to understand the need to rush this through when, as I said, this Bill has been contemplated for many years, and therefore it ought to have been prepared in detail.

I think that it is helpful to refer to two very good reports from the House of Lords on the subject, “Government by Diktat” and “Democracy Denied?”, both published in November 2021. May I thank the Vote Office for hastily printing them for me? It has to be said that it is much easier to read what was said from sheets of paper than from a small mobile telephone. One of the points they make is:

“It cannot be emphasised strongly enough that the critical problem about relegating significant policy change to secondary legislation is that parliamentary scrutiny of secondary legislation is far less robust than that afforded to primary legislation”.

I remind the Committee that there were recently complaints about the Retained EU Law (Revocation and Reform) Bill. Primary legislation was specifically excluded for exactly this reason: when I was responsible for that Bill, it seemed to me that if Parliament passes primary legislation, it should not, as a matter of routine, be changed by secondary legislation.

The “Government by Diktat” report goes on to say:

“We are concerned that the underlying challenge to the balance between Parliament and government is not primarily attributable to the impact of ‘exceptional times’ such as Brexit and the pandemic, as the Permanent Secretaries appeared to assert, but is instead the result of a general strategic shift by government.”

It seems to me that this Bill, which has been thought about for so many years, falls into exactly that category.

The Delegated Powers and Regulatory Reform Committee refers to “skeleton legislation”. This Bill is almost so skeletal that we wonder if bits of the bones were stolen away by wild animals and taken and buried somewhere, as happens with cartoon characters. The DPRRC takes the view that

“skeleton legislation should only be used in the most exceptional circumstances and that, where it is used, a department should always provide a full justification, including an explanation of the nature of those exceptional circumstances”

and

“why no other approach was reasonable to adopt”.

Again, that seems to be absolutely fair and reasonable. If I may quote further:

“Skeleton bills or skeleton clauses, by their very nature, cannot be adequately scrutinised during their passage through Parliament.”

We are trying to scrutinise the Bill and hold the Government to account. I want good legislation. I want legislation that achieves its objective and that clarifies the boundaries of power between the legislature, the King in Parliament and the courts.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

The right hon. Gentleman is making a powerful argument, which I think behoves us to ask the question: why are the Government bringing forward legislation prematurely? The purpose may be that they are seeking to raise conflict in relation to the unions and the strikes for a political reason. The Government are in a position to resolve the strikes but are choosing not to do so, and they are now using legislation as a vehicle by which to do so.

[Mr Rees-Mogg]

I do not want to be disagreeable, but I do not take that view. I think the Bill has been brought forward as it is because, actually, it is easy for Governments to bring forward skeleton legislation. In my view, it exhibits a general trend in a very acute form. The tendency for Governments to do so goes back many years. Thanks to a House of Lords report, I have a quotation from 1929 from Lord Chief Justice Hewart, who was concerned even then about excess powers being taken. But this Bill puts it in such an acute form, because clause 3 is simply so wide ranging.

I think that this is seeking the easy way to legislate. In my experience, parliamentary counsel, who are among the finest civil servants in the country—the work they do is phenomenal—are never defeated by time, but they are sometimes defeated by political instruction. Had they been instructed to draft a Bill that contained the proper details of what is needed, they would have been able to do so.

[Sam Tarry (Ilford South) (Lab)]

I have listened carefully to the right hon. Member’s erudite exposition of the constitutional matters affecting the Bill. I draw his attention to the Minister of State, Department for Transport, the hon. Member for Bexhill and Battle (Huw Merriman), who, in recent discussions with the trade unions, made it clear that this was about one thing only—pay—and that the Government would not “capitulate” to the rail trade unions because they would have to give a fair deal to every other sector going on strike, with the latest being the firefighters.

[Mr Rees-Mogg]

I agree with what the Bill is intended to do. I think that minimum levels of service are perfectly reasonable and not an outrageous thing to ask; they apply to the police and to the armed services. My objection is not to the aim of the Bill; it is merely about the constitutional process.

[Richard Fuller (North East Bedfordshire) (Con)]

My right hon. Friend is right, in response to the comment from the right hon. Member for Hayes and Harlington (John McDonnell) about strange alliances, that it is the constitutional issues that raise the most significant concerns among Government Members.

In addition to those two reports from the House of Lords, we have the pending review from the Hansard Society on secondary legislation, with its preliminary findings due, I think, on 6 or 7 February. Does my right hon. Friend agree that the Bill may be measured against its preliminary recommendations to see how well it fits, given the constitutional issues that he has mentioned?

[Mr Rees-Mogg]

The Bill is, as I said, a particularly extreme example of bad practice with the least possible excuse for it. There are many Bills where we can find some reason why it had to be done in such a way. I sat on Committees looking at Henry VIII powers and trying to stop them, and I often found that, actually, they were needed because that was the only way of doing things. I make no apology for the Energy Prices Act 2022. That was emergency legislation, and it contained lots of powers because energy prices had got so high that something had to be done straight away to save people from financial distress. That was a reasonable balance between the Executive and the legislature, but this Bill is not urgent legislation.

My fear is that, by writing poor legislation, we invite the courts to intervene more. I do not like the fact that, over recent decades, the courts have intervened more in our legislative processes. That undermines the democratic remit that we have to make the laws. However, if that is handed over to secondary legislation, of course the courts will intervene because the level of scrutiny of secondary legislation is so much lower and there is little other protection. So if we take away scrutiny from this House, where else will it go? Then we get judicial review, and then the Executive finds that it cannot carry out its plans for government, so it becomes self-defeating.

[John McDonnell]

I understand and completely follow the logic of the right hon. Gentleman’s argument. I agree with it. However, he is shirking the responsibility of this House by simply passing it to the Lords. In recent months, we have seen the Government withdraw a Bill for further consideration until they got it right. Surely that is the mechanism to get the Bill right; otherwise, we are shirking our responsibility.

[Mr Rees-Mogg]

I am grateful to the right hon. Gentleman, but I think that he attributes to me more influence than I have. My fusillade against clause 3 will not change many votes this evening—including my own, as it happens. Therefore, it will not be the case that the Government will be defeated in the Committee. I think that I went quite a long way in saying that the right hon. Member for Ashton-under-Lyne was not wrong on amendment 101; I thought that was pretty generous. However, the right hon. Gentleman is a hard man—he is known as a hard man of the left, and he is a hard man of parliamentary procedure as well.

[Alan Brown]

It is quite impressive that, despite the right hon. Member having been on his feet for 16 minutes telling us how bad the Bill is, he has not convinced himself to vote against it. Is it not the case that he was quite happy to have Henry VIII powers when he was Secretary of State for Business, Energy and Industrial Strategy, but, now that he is a Back Bencher, he is against them and back to respecting parliamentary sovereignty?

[Mr Rees-Mogg]

I am afraid that the hon. Gentleman is completely wrong about that. In all the legislation that I was involved with, I pushed against Henry VIII powers on every single occasion and always asked why they were necessary—I merely could not make that particularly public. There is a place for Henry VIII powers—they are not all bad—but those in the Bill go much too far. If he looks at the evidence that I gave from those House of Lords reports, he will see that it was on exactly those lines.

[Sir Julian Lewis (New Forest East) (Con)]

rose—

[Mr Rees-Mogg]

I must give up soon, but first I give way to my right hon. Friend.

[Sir Julian Lewis]

I appreciate how my right hon. Friend is trying to give helpful pointers to Government Front Benchers about ways in which the Bill could be improved. Does he agree with a point made to me by a regional representative of the TUC: that there is so little detail in the Bill that it gives Ministers too much discretion to decide what constitutes an adequate service level? That needs to be looked at again, especially because, where such legislation applies in European countries, the unions are involved in deciding what the minimum service levels are.

[Mr Rees-Mogg]

I think that the Bill should set out clearly what it is trying to achieve, so I will end with an appeal to the other place: I hope that their lordships will look at clause 3 with extreme care, that they will not be abashed by whatever majority comes from this House with respect to the Bill, and that they will amend the Bill to strengthen it, make it more effective and ensure that it achieves its objectives and sets out, in a good and proper constitutional way, what it is trying to achieve. That would be helpful to the Government, but it would also be good practice.

[Ian Lavery]

rose—

[Mr Rees-Mogg]

I should love to give way to the hon. Gentleman, but lots of people want to speak and I have gone on for too long.

[Alan Brown]

It is a pleasure to follow the right hon. Member for North East Somerset (Mr Rees-Mogg)—certainly now that he has found his Back-Bench voice again—but it is disappointing that he is still in favour of the Bill even though he says how badly drafted it is. We know how bad a Bill’s concept and drafting are when something like 120 amendments are tabled, spanning 53 pages, yet the Bill itself has only six clauses over seven pages.

I thank my hon. Friend the Member for Glasgow South West (Chris Stephens), who is responsible for about a quarter of the entire amendment paper. I am disappointed to see that there is not a single Tory amendment, nor a single Tory MP backing any of the amendments despite how many there are. It is good to hear some critical voices, however, and I hope that at the very least the Minister will listen to the Tory Back-Bench voices telling us how unconstitutional the Bill’s drafting is and the dangers that it will bring.

With only five hours to debate amendments, as my hon. Friend the Member for Glasgow East (David Linden) said, it is clear that the Government are intent on ramming the Bill through with minimum scrutiny but maximum politics as part of the Tory culture war—a culture war that they are now taking to something like 7 million key workers. I hope they get their just reward at the next election from those 7 million voters. Considering that the Tory party accumulated only 14 million votes at the last election, those 7 million key voters could be critical up and down Great Britain.

The Bill is so offensive that there is a moral dilemma involved in tabling amendments to it. How can we improve a Bill that we so fundamentally oppose? For that reason, we tabled amendments to delete each clause. As I have said before, the Under-Secretary of State for Scotland, the hon. Member for Berwickshire, Roxburgh and Selkirk (John Lamont), has described the Bill at the Dispatch Box as “anti-strike legislation”. Our amendment 33, which was not selected, would have changed its title to “Anti-Strikes (Forced Working) Bill”, which would have been quite apt.

The Bill presents opportunities for employers to pick on specific individuals and name them as required to break a strike. If those individuals do not comply, they face the ultimate sanction of sacking. Those proposals are not replicated internationally, even in places where, as the Government like to remind us, there is some form of minimum service legislation. The threat of sacking for going on strike is absolutely outrageous, so I certainly support Opposition amendment 1. Although the Minister says that the Bill could not lead to sacking, the overview in the explanatory notes makes it clear that it will remove protections from unfair dismissal for going on strike. That is the key aim of the Bill, as set out in the overview given in the explanatory notes, so the Minister cannot say that the Bill will not lead to the sacking of key workers.

--- Later in debate ---

[Alan Brown]

As we have heard, the Government still have not listened, because they would not accept any amendments. The Secretary of State rehashed some of the old arguments: he said the Bill was about health and safety, but he then used the example of teachers. Teachers are not childminders—they are there to provide education —but he is using them as an excuse to allow other people to get to work. He talked about protecting ordinary workers, but what about rewarding the ordinary key workers who are providing vital services, instead of waging a culture war on them?

The Government have not listened to the fact that the ILO does not actually back their legislation. They have ignored the fact that European trade unionists have stated that the UK already has the most draconian strike legislation. They refused to acknowledge the point of my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) that the only other countries in Europe that allow Governments to stipulate minimum service levels and penalise workers by sacking them for not complying are Russia and Hungary. That is the company that the UK Government are looking to keep.

The Government try to tell us that workers such as nurses cannot get sacked, but the explanatory notes say clearly in their overview of the Bill that it will

“restrict the protection of trade unions under the 1992 Act from legal action in respect of strikes relating to certain services and the automatic protection of employees from unfair dismissal”.

That makes it clear that workers can get sacked if they do not comply with the work notices when they are told to work, even if they do not want to and they want to adhere to the strike.

The Government also have not listened to the right hon. Member for North East Somerset (Mr Rees-Mogg), who pointed out how badly written the Bill is and the unlimited powers that it gives to the Government. I note that he is suddenly in favour of the Lords amending legislation, which is a change in tune from recent years, when he was against that. It shows how bad things are when, yet again, we are relying on the unelected Lords to amend the Bill.

[Mr Rees-Mogg]

I am grateful to the hon. Gentleman for giving way. I am in favour of their lordships doing their proper job, which is revising legislation to make this legislation, which is very good, perfect—that is what they are there for.

[Alan Brown]

The right hon. Gentleman did not say that when it came to the European Union (Withdrawal) Act 2018 during Brexit.

The Bill allows individual workers and trade unions to be targeted. It is an assault on the devolution settlement. Employment law should have been devolved to the Scottish Parliament but, as I said earlier, Labour opposed it being devolved. Even worse, the powers in the Bill allow the UK Government to amend devolved legislation, which is an assault on the devolved nations. I am disappointed that Labour did not back the SNP amendment, which would also have protected the Welsh Government. I do not know why Labour sat on its hands about that.

The Bill is an assault on devolution, an assault on workers and an assault on trade unions. That is why we oppose it and why we need independence to get away from this institution.