Strikes (Minimum Service Levels) Bill

John McDonnell Excerpts

Committee stage
Monday 30th January 2023 Commons Chamber

[Angela Rayner]

I absolutely agree with my hon. Friend. Her point links to what I was trying to express earlier: the Government fail to recognise that every time they suggest in some way that our paramedics, nurses and other key workers do not provide a minimum service and do not take seriously the impact of challenging in the way they have been forced to. They protect the very people they are there to support. The Government have misjudged how people feel about that, because not only have they caused offence to those workers who protect us day in, day out, but they have failed to recognise that every single one of our key workers who does that has friends and family who know that they do that. This is why the public get very upset with the Government when they suggest that somehow our paramedics, nurses and other key workers do not provide those standards. I agree with my hon. Friend: if the Government were able to get out more and see what happens on the ground, they would have a clearer understanding of why this legislation will not work and fix the problems. The public understand that and the Minister should take note.

[John McDonnell (Hayes and Harlington) (Lab)]

If we walk through this legislation and its eventual implementation, we see that it will result in either a worker being sacked or a worker being sacked and a trade union being fined. Can my right hon. Friend think of anything that could greater exacerbate the current industrial-relations climate than those sorts of threats?

[Angela Rayner]

I absolutely agree with my right hon. Friend. That is exactly what this Government are walking into and I think it will exacerbate the situation. The Government have been exacerbating the situation not just by bringing forward this legislation—most of the public can see what they are trying to do—but through the tone with which they have carried out, or failed to carry out, negotiations to avert the industrial action we have seen. Nurses are taking industrial action for the first time ever. Rather than get round the table and sort the mess out that they have created after 13 years in government, the Government try to demonise those very workers. The public do not thank them for that.

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[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.

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[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.

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[Andy McDonald]

My hon. Friend makes a good point. This is about targeting people. People will be selected for treatment under these work notices, and trade unionists will be singularly picked out to add to the humiliation and distress. It is a dreadful tactic.

[John McDonnell]

The practical reality is that for some workers this takes away the whole right to strike. An example in my constituency is air traffic control. There is no such thing as a minimum service guarantee in air traffic control, and the same can be said for rail signalmen. This process will extend the denial of the right to strike to whole batches of workers, and we need to acknowledge that in this debate.

[Andy McDonald]

My right hon. Friend has hit the nail on the head. There are workers who are going to be denied that fundamental right to withdraw their labour, and that is a step that should be taken with a great sense of foreboding and concern.

The Bill could also lead to bankruptcy for trade unions as they become exposed to lawsuits that could wipe them out. Notably, there is no minimum service required of the Government in the Bill. If workers are required to provide minimum service levels on strike days, why is there no such requirement for the Government and outsourced private providers on non-strike days? As we have seen in the course of these disputes, workers and unions are well aware of their legal and moral obligations, but this Government’s cynicism stinks. They are more than happy to sit on their hands when there are more than 500 excess deaths a month in our NHS, but they are suddenly sparked into action over concerns about public safety when strikes occur. If they were genuine in their concerns they would give those workers a proper pay award, but instead their real determination is to strip away their rights.

Patients are not dying because nurses are striking. As the RCN says so eloquently:

“Nurses are striking because patients are dying.”

Under the Trade Union and Labour Relations (Consolidation) Act 1992, it is already unlawful to take industrial action in the knowledge or belief that human life could be endangered or “serious bodily injury” caused as a consequence. In short, life and limb cover is always maintained. I know that the Conservatives are itching to sack nurses, but the RCN handbook sets out in great detail how those nurses will provide “life and limb” cover—the very task that they have undertaken on our behalf before and during covid and will continue to undertake for as long as they have the energy to do so.

The reality is that if this Bill is passed, public services will get even worse. It has long been established that the right to withdraw one’s labour is a fundamental liberty, and it is trade unions who won us the basic rights of annual leave, sick pay, the two-day weekend, the eight-hour day, health and safety protections at work and much more. We need strong trade unions, not only as a right in themselves but to protect the rights we already have and to fight for more. By attacking the right to strike, and by extension the trade union movement, the Government put all this at risk and there will be even more disruption.

The only Government internal impact assessment found that imposing minimum service levels could lead to an increased frequency of strikes. The Transport Secretary admits the new laws will not work and the Education Secretary does not want them. Inside Government there is a recognition that public services will be the likely casualty of an ideologically motivated attack on the right to strike. Much has been said by Conservative Members and by the Secretary of State in particular about their sudden love affair with the International Labour Organisation, praying in aid the ILO’s approach to minimum service levels, but what the Government conveniently omit to mention is that convention 87 of the ILO sets out the criteria that this Government want to ignore. It stresses that the introduction of a negotiated minimum service as a possible alternative to the total prohibition of strikes should be contemplated only when the interruption of services would endanger life or the personal safety of the whole or part of the population.

The Government have also omitted to say that in other jurisdictions and economies there is much greater collective bargaining by trade unions for better terms and conditions for their members. The comparison with the UK is ludicrous. The ILO says that a minimum service should be a genuine and exclusively minimum service—which this Bill does not prescribe—and that unions should be able to participate in defining such a service. As the right hon. Member for New Forest East (Sir Julian Lewis) has said, disputes should be resolved not by the Government but by a joint or independent body that has the confidence of the parties. There are examples, not only across Europe but across the world, where such practices obtain, but the Bill is as silent about them as it is about any sensible and proper safeguards, leaving the law by diktat entirely to the wide Henry VIII powers vested in the Secretary of State.

It therefore makes sense—as envisaged by amendments 83 and 84, which I commend to the House—to engage the CBI and the TUC in these matters and to pursue resolution disputes through ACAS if it comes to that. In any event, the High Court certification set out in new clause 1 is necessary to ensure that this country meets its full obligations, in respect not only of convention 87 of the ILO but of the obligations set out in the European social charter of 1961 and under the UK-EU trade and co-operation agreement. We are parties to all these treaties and we need to make sure that we abide by them. New clause 1 addresses that. As it stands, we have not seen any risk assessment testing those obligations. Professor Keith Ewing told us in the Business, Energy and Industrial Strategy Committee that

“we cannot remove the EU social rights inheritance, because of article 387, where the removal is motivated by trade and investment, which seems to be the motivation here.”

He went on to say:

“Brexit does not mean release from international obligations or even from our continuing obligation to comply with European law.”

In 13 years of Tory rule, numerous pieces of anti-trade union legislation have been passed. The Strikes (Minimum Service Levels) Bill is only the latest attempt to neuter the power of workers, and there is no reason to assume that it will stop there. This dreadful, ideologically insane Government are thankfully on their last legs, but in the time they have left, they are clearly determined to continue their attack on the rights of workers and the services they work in. It will be another sad day for this country if the Bill passes its Third Reading tonight, but the Government should be in no doubt that, in doing this, they will be hammering another nail into their own coffin.

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[Ian Lavery]

I rise to speak to amendments 78, 95 and 96 in my name, which focus on the instruction of people to work that is encompassed in a work notice. Amendment 78 refers to the removal of the protection for those refusing to work on strike days, and amendments 95 and 96 would ensure that people receive a copy of the work notice and other related details.

I will focus on the legislation. This is a sackers charter that is about destroying the very fabric of the trade union movement. People say that the devil is in the detail, and it certainly is when we read this Bill. When the Minister comes to the Dispatch Box, I ask him to confirm, for everybody concerned, whether an individual who is instructed by a work notice that they must go to work on a strike day, but then refuses, will not be sacked. I have a lot of time for the Minister—in fact, I am nearly calling him an hon. Friend—

[John McDonnell]

Steady!

[Ian Lavery]

I hear my right hon. Friend say, “Steady!”, but I want the Minister to confirm that, because that simple question has been asked by many hon. Members tonight and he shook his head on every occasion. Simply, for the sake of individuals who are instructed by a work notice to cross the picket line, will they not be sacked? Never mind the situation whereby their protection under the unfair dismissal regulations will be withdrawn—what does that mean? If that is withdrawn, it means that they will be sacked. That is exactly what it means—we do not need to be employment lawyers to recognise that.

The Bill is also about attacking individual members in the workplace, particularly trade union representatives. If there is going to be a strike in a workplace, perhaps about health and safety, and the trade union representative is advocating strike action because that is what they are elected to do, but the boss—the gaffer—gives them a work notice and says, “You’re the person who’s got to cross the picket line,” how does that work? In the main, we have fair bosses and bad bosses, and bad bosses will pick out people they can get rid of as quickly as possible. A trade union rep advocating action on a health and safety issue could be dismissed, because the protection is gone for someone who refuses to cross the picket line and go into work. Even Conservative Members understand that that is not fair in any way, shape or form. How can it be? Individuals have the right, regardless of work notices, to withdraw their labour. It is a basic human right. Here we have legislation that not many people—even in this place—want; it is a knee-jerk reaction. It is what happens when the Conservative party is cornered and is 25 points behind in the polls. What can unify them? I will tell you what unifies the Tory party: attacking the trade unions. That gets them speaking. That is the true red meat of unifying Tory politics. But tonight there have not been many speakers from the Conservative Benches.

An accusation has been made that trade union members are not ordinary people, but they could not be more ordinary if they tried. They are the fire and rescue service people who run towards fires and towards those in desperate need of being rescued; as we have seen, sadly, a member of the Scottish Fire & Rescue Service has just lost their life. These are ordinary people. Nurses are ordinary people saving lives on a daily basis. Transport workers kept the country running before the pandemic, during the pandemic and after it.

The work notice is a bosses’ charter. I have spoken about the duty of care of an employer to an employee. What happens if someone, despite campaigning for action, is told by their employer that they must go to work? What will be the impact on that individual’s wellbeing? What impact will it have on mental health in the workplace when people are compelled to work? It is not short of a form of industrial slavery to compel people to go to work against their wishes.

It is not the same in Italy. It is not the same in Germany. It is not the same in France. It is different. Stop arguing the cheat, because it is completely different, and that has been highlighted by speaker after speaker, particularly with regard to the difference in collective bargaining and sectoral collective bargaining. There has not been an impact assessment or any consultation with the trade unions or those who will be involved. This is simply Government diktat. It is draconian, authoritarian legislation that is unfit for purpose. It is unfair, undemocratic, unworkable and unsafe. It is unfit for purpose. I am proud to be voting against it tonight.

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[Rebecca Long Bailey (Salford and Eccles) (Lab)]

I draw the House’s attention to my entry in the Register of Members’ Financial Interests as a proud trade union member. I rise to support the amendments in the names of my hon. Friends and myself and those of the official Opposition.

There has been much discussion today about whether the Bill has been badly or incompetently drafted, but we should not be taken in by that diversion. This is a Bill that is drafted very specifically to achieve a very specific aim: to extinguish the right to strike and to stop key workers from speaking out.

Trade unions have been given no opportunity to feed into any pre-legislative scrutiny. There has been no consultation with any of the impacted sectors and no impact assessments have been published, as highlighted by the Regulatory Policy Committee, and it is no wonder. The Bill will undoubtedly breach the Human Rights Act, the European convention on human rights, International Labour Organisation conventions and various other statutes. It gives the Secretary of State sweeping authoritarian powers to set minimum service levels by regulation in six sectors, the contours of which are undefined, and it grants the Secretary of State sweeping authoritarian powers to amend, repeal or revoke provisions in primary legislation, including Acts of the Senedd and the Scottish Parliament, as we have heard today. Worse still, it strips away employment rights. Any worker identified in a work notice who refuses to work as directed will be without unfair dismissal protections, meaning they can be sacked immediately, without notice. But it does not stop there. The Bill also says that the relevant trade union must “take reasonable steps” to ensure that its members comply, but, again, “reasonable steps” are not defined; they are at the whim of the Secretary of State.

Staggeringly, the consequence of not taking those undefined reasonable steps is that the strike would be unlawful and unofficial and all workers taking strike action would be without unfair dismissal protection and could all be sacked at the whim of the Secretary of State.

[John McDonnell]

When we legislate in Parliament, we do not legislate for the good; we legislate for the bad. We have to interpret how this legislation could be used by a bad employer, and one way it could be used by bad employers is specifying individual workers who we know are trade union activists to be forced to break the strike. The Government will say that there is a responsibility and that the employer had no regard to whether someone was a union member. We had 20 years of blacklisting taking place with Governments refusing to acknowledge it. We know what bad employers will do: they will target trade unionists and ensure they are sacked, and when the union defends the trade unionists, they will come for the trade union itself.

[Rebecca Long Bailey]

My right hon. Friend is 100% right. The problem with blacklisting was that it was done very much under the radar; we had Government institutions going behind legislation. This piece of legislation, however, would unashamedly carry out similar practices in broad daylight, with the full sanction of the Secretary of State and his Prime Minister.

This is an authoritarian and undemocratic Bill. The proposed amendments that I am supporting today are therefore designed simply to enhance parliamentary scrutiny, to constrain the unreasonable powers of the Secretary of State and to protect workers and trade unions, in particular by making co-operation with work notices voluntary on the part of employees, by providing that a failure to comply with the work notice will not mean a breach of contract or provide grounds for dismissal or detriment, and by limiting the reasonable steps that a trade union must take.

This despotic Bill not only represents a fundamental attack on workers’ rights, but dangerously divides a nation, demoralising and threatening to sack the very workforce who have tried to hold our country together over the last two difficult years. These amendments are the bare minimum necessary to take the dangerous edges off this very dangerous piece of legislation—but, frankly, this piece of legislation needs to be thrown in the bin.

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Nothing in this Bill as it stands requires so-called minimum service levels to be realistic, let alone appropriate, and nothing in it ensures that those levels do not exceed actual day-to-day levels of work on non-strike days. That has to change. That is why amendments 94 and 39 are needed. There is nothing to prevent the Government and employers from using the Bill to prevent union officials from effectively representing their members during disputes or to stop the Government from bankrupting unions by requiring them to police their members on behalf of the employers exploiting them, imposing financial penalties for the slightest failure.

[John McDonnell]

Many have commented on the almost ludicrous nature of how we are legislating today. We are about to legislate to penalise a union for not taking reasonable steps to ensure it instructs its members to break a strike, yet we do not know those sanctions, or what “reasonable steps” are. We do not know what the implications are for the union itself, yet we are legislating tonight to give a free hand to the Minister. That cannot be right in any democratic forum.

[Claudia Webbe]

My right hon. Friend makes an excellent point, to which I hope the Government are listening. The Bill is manifestly unjust and must not become law. That is why amendments 93 and 92 are needed. The Government are not just showing their contempt for the UK’s legal and democratic principles with this Bill. As it stands, the Secretary of State can ignore the UK’s international legal and treaty obligations on the treatment of workers and allow the sacking of workers simply for exercising their internationally recognised right to withdraw their labour, with nothing to protect certain workers and union officials from being targeted by bad bosses. Time and again, this Government bring forward legislation without an impact assessment. Where is the impact assessment? Where is the equality impact assessment? That is why new clause 1 and amendments 4, 83 and 84 are needed.

The harm this Bill does to the rights of our people is obvious, but it also does huge harm to the UK’s international standing, making this country yet again an outlier among so-called developed nations in its readiness to disregard international law and agreements. The Bill is clearly unfit and is designed to break the will of the unions and demoralise workers. These amendments and new clauses will not actually make the Bill fit, but the proposed changes will at least mitigate some of the dangers it evidently poses. I urge the Committee to support them.

As workers rise in opposition to this Bill, to defend their rights and to say enough is enough, and as industrial action increases as a direct result of this Bill, I urge all hon. and right hon. Members to do the decent thing and to stand with them not only here in Parliament, but on the picket line. On 1 February, I will be standing with workers in Leicester who are rightly exercising their democratic right to strike for fair pay, terms and conditions. I ask Members to support the amendments and to scrap this Bill for good.

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[Kevin Hollinrake]

I am very happy to write to the hon. Gentleman to confirm that point, but we absolutely believe that this legislation is lawful and compatible with human rights legislation and international obligations.

My right hon. Friend the Member for North East Somerset (Mr Rees-Mogg) made a typically insightful and thoughtful speech that no doubt provoked thinking on both sides of the Committee. He talked about the Henry VIII powers in the legislation, but I reassure him that they are restricted only to genuinely consequential amendments. I do not believe they are as wide ranging as he set out.

My hon. Friend the Member for Crewe and Nantwich (Dr Mullan) was absolutely right—this was also reflected in the contribution of my hon. Friend the Member for Southend West (Anna Firth)—that we are not anti-union, but we are pro-protecting the public.

[John McDonnell]

Will the Minister give way?

[Kevin Hollinrake]

I will make some progress, if I can. I may come back to the right hon. Gentleman in a moment.

My hon. Friend the Member for Newbury speaks with great authority on these matters and, as I said, pointed out clearly that the ILO says that as a general principle MSLs are not restricted to essential services, as some Members have claimed, and can cover other elements such as education and railway workers. She also said quite rightly that from their speeches the Opposition seem to want the country to grind to a halt.

[John McDonnell]

It is irresponsible for a Minister to come to this House, when there is a clear conflict in the law that needs to be interpreted, without that interpretation and just to say that he is going to write to us. That is irresponsible. Will he now define to us what reasonable steps he expects a union to take to comply with the legislation as it is and to instruct its members to go to work during a strike? What are those reasonable steps?

[Kevin Hollinrake]

That would be for a court to decide—[Hon. Members: “Oh!”] Of course it would be for a court to decide, because the only action that can be taken against a union can be by the employer in the courts. A union would then define what the reasonable steps would be. I will move on.

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[John McDonnell]

Briefly—I do not want to delay the House—I say to the Government that bringing forward this legislation during the current industrial relations climate demonstrates a lack of appreciation on their side for the strength of feeling of the nearly 1 million people who are taking industrial action and the millions who support them. The Bill is provocative: it will ensure that the current disputes are more bitter and last longer, and it will inspire other disputes. I hope that the other place brings forward amendments that will ameliorate it, but I warn the Government that, when the first trade unionist is sacked or fined, they will regret the reaction from the trade union movement, because it will damage our economy and our society as a result of their irresponsible and provocative actions tonight.

Question put, That the Bill be now read the Third time.