Strikes (Minimum Service Levels) Bill

Laura Farris Excerpts

2nd reading
Monday 16th January 2023 Commons Chamber

[Laura Farris (Newbury) (Con)]

I would like to accept the invitation of the shadow Deputy Prime Minister, the right hon. Member for Ashton-under-Lyne (Angela Rayner), who encouraged us to be respectful in this debate. I wish to be so. We have heard a lot from the Labour party this evening about how the Bill is an act of political violence and an attack on the fundamental freedom of working people, but we have not heard an answer to the fundamental question that the legislation poses: do the British people have a right set out in statute to a basic safety and security guarantee during periods of strike?

Let us start with the law. The right to strike is embedded in international law, most notably in article 11 of the European convention on human rights.

[Joanna Cherry]

The hon. Lady asks whether any of us on the Opposition Benches care about fundamental safety levels, and yes we do. She asked whether we would support legislating, but legislation already exists. On article 11, she knows as well as I do that the measures have to be “necessary”. The Government’s own memo with the last legislation said that the measures were not necessary in relation to the health service, education and fire and rescue.

[Laura Farris]

I thank the hon. and learned Lady for her point, and I will assist her, because I was coming on to that point. The article 11 right may be restricted for two reasons—if the restriction is necessary, yes, and proportionate. The International Labour Organisation, of which the United Kingdom is a founding member, recognises that maintaining a minimum level of service provision can be both when it comes to essential services. Its committee on freedom of association has expressly set out the two circumstances in which it may be appropriate: where strike action would pose a risk to life, safety or health; or where the service is not essential in the strict sense of the word, but where repeated strikes would bring a very important sector to a standstill.

[Chris Stephens]

The ILO also says, does it not, that the minimum service level has to be agreed by an independent arbiter if there is a dispute, which is not in the Bill, and that there should not be a dismissal, which is in the Bill?

[Laura Farris]

I am grateful to both SNP Members for their interventions. I am coming on to those points, so I will make a tiny bit of progress, if I may.

On the point raised by the hon. and learned Member for Edinburgh South West (Joanna Cherry), we already know that transport and education meet the ILO’s test, because the ILO told the United Kingdom that in its response to the challenge to the Trade Union Act 2016 submitted by the TUC in 2015. In its response, the ILO committee of experts—Members can look it up; it is on the website—said that in relation to transport and education

“recourse might be had to negotiated minimum standards for these sectors as appropriate”.

We also know that many comparable countries take a much tougher line than the Government are proposing. In the United States, to give one example, 38 out of 50 states ban public sector strikes altogether.

[Barry Gardiner (Brent North) (Lab)]

The hon. Lady is presenting a reasoned case, but she knows, and she has just used the word, that these things should be negotiated. The measures in this Bill are by fiat of the Secretary of State.

[Laura Farris]

I thank the hon. Gentleman for his point. I am coming to all these things, so if he will give me a moment, I will continue.

In the United States, 38 out of 50 states have an outright ban on public sector strikes, including New York. Other states, such as Canada, Australia, Italy and Spain, all have embedded in statute minimum service levels that apply to important public services, and those services are often drawn much more widely than the Government are proposing. They include waste collection, postal services, broadcast services, the administration of justice, water distribution and energy supply.

I pick out those states not as random examples, but because every single one is a member of the International Labour Organisation. They are bound by exactly the same rules as us, and they are among our closest comparators around the world. Even more importantly, the International Labour Organisation has adjudicated all their statutory minimum service levels, and a 2019 publication from the ILO in Geneva commented:

“These examples illustrate the wide diversity of approach that ILO member states have adopted to address the challenges posed by industrial disputes in essential services”.

Minimum service levels

“supported by the ILO’s supervisory organs, exist to manage the balancing act between these necessary restrictions and the individual worker’s fundamental labour rights”.

I have not heard a single Member of Parliament tonight explain to me why the ILO is wrong or why the Government are striking the wrong balance when they have a mandate for what they are doing.

[Sam Tarry (Ilford South) (Lab)]

The disingenuousness comes from making comparisons with other nations under ILO regulations, which clearly have a completely different context. For example, the ILO imposes restraints on the circumstances in which such powers can be used, which is the antithesis of the Government’s blank cheque approach.

[Laura Farris]

With respect to the hon. Gentleman, I take the opposite position. The United States has an outright ban on public service strikes in 38 states. In December, President Biden made his most recent intervention in union rights when he signed legislation that imposed an outright ban on a national railroad strike. The United States is a founder member, as we are, of the International Labour Organisation. It goes much further, but the ILO has found its ban to be lawful. The Opposition will have to say why all those comparable states, which go much further than us, are somehow acting lawfully, yet we are not.

Strikes (Minimum Service Levels) Bill

Laura Farris Excerpts

Committee stage
Monday 30th January 2023 Commons Chamber

[Laura Farris (Newbury) (Con)]

It is a pleasure to follow the hon. Member for Middlesbrough (Andy McDonald). I will pick up where he left off. The right to strike is neither absolute nor unlimited. He was correct to point the Committee to the 87th convention of the ILO on freedom of association and protection of the right to organise, and he will be aware that article 9 of that convention sets out the limited circumstances in which any member state has a margin for discretion to decide whether certain sectors can be banned from striking altogether. As a matter of fact, the United Kingdom exercises that qualification in restricting the right to strike for police officers, members of the armed forces and prison officers.

Despite the hon. Gentleman’s language about this country’s having very restricted union rights, Opposition Members must concede that there has been a high degree of consensus while in government. I gently remind him that when Labour was last in government, after the numerous changes to strike law in the 1980s, it published the “Fairness at Work” White Paper in 1998. Its foreword stated:

“There will be no going back. The days of strikes without ballots, mass picketing, closed shops and secondary action are over.”

Where I agree with the hon. Gentleman, although I present it from a different angle, is that the issue throughout debate on this Bill is whether the proposed restrictions are necessary and proportionate. Amendments 9 to 14 and 73 to 75, tabled by the right hon. Member for Ashton-under-Lyne (Angela Rayner), who is no longer in her place, and other Labour Front Benchers, would hack out each of the sectors that have been designated as sufficiently important to warrant a minimum service level—education, transport, nuclear decommissioning, border security, fire and health.

The hon. Member for Middlesbrough was a tiny bit disingenuous when he read from the ILO’s publication and said that the ILO allows a minimum service level only in

“services the interruption of which would endanger the life, personal safety or health of the whole or part of the population”.

He knows as well as I do that he could and should have read on, because the ILO allows minimum service levels in

“services which are not essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence…or in public services of fundamental importance.”

Earlier today, every Member of this House received a House of Commons Library briefing on this Bill. It included an important 2012 report from the ILO, which I know many Members will have read, that provides some assistance:

“the right to strike is not absolute and may be restricted in exceptional circumstances, or even prohibited”.

The report gives three examples of where that might apply. The first is certain categories of public servants, and relevant to this debate is the reference to teachers:

“the Committee considers that public sector teachers are not included in the category of public servants ‘exercising authority in the name of the State’ and that they should therefore benefit from the right to strike…even though, under certain circumstances, the maintenance of a minimum service may be envisaged… This principle should also apply to postal workers and railway employees, as well as to civilian personnel in military institutions when they are not engaged in the provision of essential services in the strict sense of the term.”

In relation to the National Education Union, which is striking on Wednesday, and the National Union of Rail, Maritime and Transport Workers, which seems to be striking most of the time, the Opposition know, or at least ought to know, that the ILO thinks that minimum service levels should apply both in education and transport.

[Richard Burgon (Leeds East) (Lab)]

The hon. Lady is making a very interesting contribution. She and the Government are making out that the International Labour Organisation somehow supports this measure. However, its director general has said that he is “very worried” about this Bill. Given that, will the hon. Lady invite the Minister to withdraw his assertion that the ILO supports this measure?

[Laura Farris]

An experienced employment lawyer like the hon. Member for Middlesbrough will know the true mechanics very well. A union and probably the TUC and Professor Keith Ewing, because he did the last one, will put in a written submission to the ILO, and its committee of experts based at the ILO office in Geneva will respond in due course. It is not appropriate to say that something is the complete answer of the ILO because somebody has waggled a microphone under somebody’s nose at Davos. There is a procedure.

I hope my speech is not confusing the hon. Member for Leeds East (Richard Burgon), because I am not suggesting for a moment that what was sent to MPs this morning is a comment on the United Kingdom. It is the ILO’s statement of general principles on minimum service levels, and I will continue, if I may. The ILO says that the second acceptable restriction is where strikes take place in activities that may be considered essential services. It lists, at paragraph 135 of its 2012 report:

“air traffic control, telephone service…firefighting services, health and ambulance services, prison services, the security forces and water and electricity services.”

The report continues:

“In situations in which a…total prohibition of strike action would not appear to be justified…consideration might be given to ensuring that users’ basic needs are met or that facilities operate safely or without interruption, the introduction of a negotiated minimum service…could be appropriate.”

[Joanna Cherry]

What the hon. Lady is saying is very interesting, but does she accept that, as we are in Europe, any analysis of the legality of these proposals has to start with article 11 of the European convention on human rights? Can she point to any country in Europe with Government-enforced minimum standards that can lead to the sacking of workers on strike? [Interruption.] The Minister should listen to the question carefully, because the answer will be on the record. Can the hon. Member for Newbury (Laura Farris) point to any other country in Europe that has Government-enforced minimum standards, without negotiation and without arbitration—

--- Later in debate ---

[Joanna Cherry]

Can the hon. Member for Newbury point to any country in Europe in which, as a result of Government-enforced minimum standards, without any negotiation and without any arbitration, a worker can lose his or her job, other than—wait for it—Hungary or Russia?

[Laura Farris]

The hon. and learned Lady is right that negotiation is required. I was shocked to find that, in France, the sanction for a person who refuses a requisitioning request is via the criminal courts. I did not know that, and I did not know it is the case in Canada, too. It may be that I have misread the legislation, and that it is a “life and limb” exemption—I am not familiar enough with French legislation.

[Andy McDonald]

I will help the hon. Lady. Is she aware that the ILO is saying that unions should participate in defining minimum service levels, and that any disputes should be dealt with not by a Government but by an independent body? Does she agree with that? It is not in the Bill.

[Laura Farris]

I agree with the hon. Gentleman, and it is a good point. Even though the ILO has set out, in black and white, the services in which it says the right to strike might lawfully be restricted, and even though its list includes every single service that the Government have included in the Bill—in fact, the ILO goes much further—the Opposition, for some reason, seem to wish to take out every one of those essential services. They would say no to a minimum service level when the schools are on strike, no to any key worker being able to put their kids in school and no to any vulnerable child being able to be looked after. They would say no to the trains running at all during the rush hour. The Opposition need to be clear with the British people about why their amendments deviate so far from international norms. It seems to be the case that, in their view, the country should grind to a standstill.

[Ian Lavery]

Will the hon. Lady give way?

[Laura Farris]

I will make a bit of progress, because I am conscious of time.

Let me just deal briefly with the issue of sanction, because it has come up. The hon. Member for Middlesbrough will know—he is an employment lawyer, but there may be others—that section 219 of the 1992 Act is uniquely convoluted in the way it confers a protection on the worker and on the union in terms of the right to strike. The statutory language is that there is immunity in suit from the tort of inducement to breach of contract—that is the right to strike as expressed in domestic law. What I think the law is doing here in terms of sanction is removing the immunity—that is what is happening; that is the logical consequence of anything that restricts the right to strike. I just want to say this: nobody in this Chamber envisages sacking nurses or any other category of emergency worker, but it must be right that, if the section 219 immunity is lost or in any way qualified, we bring into play disciplinary sanctions. That must be right and I accept that.

I have said in response to the hon. and learned Member for Edinburgh South West (Joanna Cherry) that both France and Canada seem to have a far more draconian system—[Interruption.] She can correct this when she makes her speech. Again, I looked at what the ILO said about this issue. I will finish with this Dame Rosie, because I can tell that I am being annoying. The ILO said that if the strike is determined to be unlawful by a competent judicial authority on the basis of provisions that are in conformity with the freedom of association principles, proportionate disciplinary sanctions may be imposed. I do have some improvements that I think can be made to the Bill, but I am going to take them offline and say them afterwards.

[Several hon. Members rose—]