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

John McDonnell Excerpts

Monday 27th November 2023 General Committees

[John Spellar]

rose—

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

rose—

[The Chair]

John—John McDonnell.

[John McDonnell]

Whichever John you want, Sir Edward.

[The Chair]

Either one—you are both charming. [Laughter.]

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[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.

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[John McDonnell]

It is a recipe for further conflict—I think for disaster—at every stage.

The Conservative party prides itself on the defence of civil liberties: not interfering in civil society organisations because that is an intrusive step by the state. But under this statutory instrument and the draft guidance, the Conservatives are actually telling trade unions how to write the letter to their members encouraging them to comply with the legislation and go to work. Now, unions will be almost forced to comply with that draft guidance, because if they use other language, as we have seen in the past, lawyers acting on behalf of the train operating companies or others will pick through it in precise detail. I have never seen this before: the state actually dictating the language to be used in a civil society organisation’s communication with its members. This has gone a step beyond anything we have seen in the past.

Let me explain the reality of industrial relations: if the Government try to prevent people from taking strike action, they will find other mechanisms. We have seen wildcat strikes in the past in our country; we have tried not to encourage them, because we want industrial relations to be orderly, but if people are told to go to work, instead they will go sick, they will work to rule, and they will not be as committed in the job as they should be. It is obvious that that will happen when the industrial relations climate is soured like that.

We have been trying to get absolute clarity from Ministers on whether the use of this legislation by companies is discretionary, and we have been given assurances that it is. But the reality in the rail industry at the moment is that it is not the companies that are engaged in the industrial relations conversations; it is the Government that are determining the industrial relations decisions, so it will be up to the Government, not the TOCs, to decide whether to employ this strategy to defeat the unions or to try to constrain the unions to reform in some way.

The Government should be careful what they wish for. To introduce this legislation and put petrol on the fire at this stage, just when there is the potential for negotiated settlements, a period of industrial relations co-operation and the development of a new spirit in the industry, could be completely counterproductive. The Government should think before they act in this way. I would rather the Minister wait for the impact assessment, which we have been promised but which has not been delivered, so that we can properly consider all the implications of this statutory instrument, and just hold back. What is the rush, particularly when negotiations to resolve some of the final disputes are taking place, and when the Government have withdrawn their plan for the closure of ticket offices, which was one of the major contentious elements of the dispute? This measure is precipitous and provocative, and it is dangerous for the future of our industry in the coming period. I urge the Government to think again.

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[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.

[John McDonnell]

Let me try to give a concrete example of what the hon. and learned Member is talking about. An employer can take a union to court and argue that it has not performed its role of encouraging workers to go to work. As a result, the strike is rendered illegal. Any individuals who participate in that strike would therefore lose their legal protection against unfair dismissal. We could have employers using this as an opportunity to sack a large number of their workers. They could shed workers at will.

[Joanna Cherry]

To be frank, these are the kinds of laws and consequences that workers in Russia and Hungary face. We do not want them here in the United Kingdom.

Of course there should be minimum service levels; I am not arguing against that. However, they should be reached through negotiation. When negotiations between unions and the employer break down, there should be arbitration. That is what happens in a lot of other European countries.

I am concerned that the regulations on passenger trains would allow an employer to require 40% of timetabled services to run. That would allow some employees to participate in strikes, but infrastructure services such as signalling would have to be provided between 6 am and 10 pm for a substantial number of priority routes. That gives rise to a risk that employees working on those lines would be effectively prevented from striking.

I have met the TUC to discuss its concerns about these draft regulations. It made a number of points, some of which have been covered already, so I will confine my remarks to those that have not been covered. It said the rail industry is highly complex, so the effect of the draft regulations on the right to strike is difficult to quantify without access to industry information. The impact of any work notice will depend on how an employer seeks to deploy it. The TUC is concerned that the regulations will prevent many workers from taking industrial action. It says that providing 40% of a service is likely to require a lot more than 40% of staff once consideration has been given to cover staff, for instance.

The TUC also fears that many infrastructure staff on priority routes, including signal operators, will be denied the right to strike completely because their presence is necessary for the routes to run. It shares the concern I articulated in my letter to the Secretary of State for Business and Trade.

The TUC also made the point that the Government seem to have given little consideration to safety and the role of transport workers in ensuring that passengers are safe. Overcrowding could be a real issue when only a partial service is running. Rail workers need to know that they can apply “work safe” principles and, if necessary, stop working. It needs to be clear that, in those situations, staff would not face legal consequences—or political opprobrium from the Government.

The TUC also raised the significant uncertainty over whether the draft regulations include or exempt those working on freight services. Will the Minister clarify that?

The main point I want to raise with the Minister, and on which I want an answer, is this: what assessment have the Government made of the extent to which the article 11 rights of those working on passenger rail infrastructure on priority routes would be protected in cases when services must be provided between 6 am and 10 pm on strike days? A proper, full assessment with regard to the law is required to have been made in that respect in order for this to be proportionate interference with rights under article 11. I do not believe that that has been done, and I do not believe this is proportionate interference.

[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.