Strikes (Minimum Service Levels) Bill

Lord Callanan Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)]

My Lords, I am grateful to all those who have contributed to this exciting—almost, in some respects—debate about the main issues we will discuss as the Bill progresses.

Let me start by addressing the point made by a number of noble Lords—including the noble Lords, Lord Collins, Lord Fox and Lord Hendy—on the report from the Joint Committee on Human Rights. Of course, we are grateful to the committee for its work, and, in the normal course of events, we will respond to the report in full. Let me say, before then, that this Government do consider that this Bill is compatible with the ECHR.

As the noble Baroness, Lady Chakrabarti, pointed out, on the introduction of the Bill I made a statement under Section 19(1)(a) of the Human Rights Act that the provisions of the Bill are compatible with convention rights. Indeed, I have to do so on all the Bills I introduce into this House, and I have been doing a lot of that recently. I say to the noble Baroness that this is a duty I take very seriously. I would not just wake up in the morning and sign a bit of paper. I respond to legal advice that I receive, as I do on every Bill, and I often go back and query that legal advice, because I take my duty to sign that statement seriously. I can tell the noble Baroness that I was happy to do so in this case, because I am confident that the Bill strikes the right balance between the ability to strike and the rights and freedoms of others.

It is a question of balance, and I am grateful for the comments from my noble friend Lord Henley, who is actually a member of the committee, in his helpful speech. As he pointed out, the report does not say that the Bill is not compatible with the ECHR. Regulations that set minimum service levels in specified services will, of course, need to be compatible with the ECHR, including Article 11, and the Government will ensure that they introduce regulations that are compatible. Obviously, failure to do so would result in a breach, and a court would be able to grant such remedy as it considers just and appropriate should a union or others take a matter to judicial review. I am sure there is a lot of thinking about that at present.

In response to the question from the noble Lord, Lord Collins, about when the provisions would apply, and the issue of retrospectivity, I agree with my noble friend Lady Noakes. It will of course apply only to future action. After Royal Assent, we need to lay the appropriate regulations, which would need to be approved by both Houses before the legislation can come into force.

The noble Baroness, Lady Donaghy, asked me whether employers can discriminate against trade union members when issuing a work notice, I am happy to confirm to the noble Baroness that the Bill is clear that employers should have no regard to trade union membership when they are issuing work notices.

[Baroness O’Grady of Upper Holloway (Lab)]

My noble friend Lady Donaghy also raised the issue of recommendations that refer to trade union activities. The real fear here is that a bad employer could use a work notice to victimise and discriminate against not only union members, which, as the Minister says, is covered by the Bill, but against elected union workplace representatives. I wonder whether the Minister can give us reassurance that moves will be made to ensure that that cannot happen. It clearly cannot be right that an employer could victimise elected union representatives in the work notice. We hope it would never happen, but we cannot rely on hope.

[Lord Callanan (Con)]

I think the noble Baroness was, in effect, asking me to consider amendment 4 from the JCHR, which is what the noble Baroness, Lady Donaghy, was referring to. I was about to come on to that. The noble Baroness, Lady O’Grady, is getting slightly ahead of herself. There are in fact later amendments, Amendments 27 and 28, tabled by the noble Baroness and the noble Lord, Lord Collins, that seek to achieve a similar effect to that recommended, and we are going to have a fuller debate on that in group 10. So, if the noble Baroness will forgive me, I will address those points in more detail when we get there.

To restate why this legislation is needed—because this has been a general debate—let me set on record the Government’s position that there needs to be a reasonable balance between the ability of workers to strike and the rights of the public, who work hard and expect their essential services, which they pay for through their taxes, to be there when they need them. The minimum service levels aim to restore this balance in order to protect the lives and livelihoods of the public from disproportionate impacts and results of strike action. This important protection should be afforded, in our view, to members of the public without delay, which is why we are opposed to the amendments seeking to delay the imposition of this legislation.

Amendment 1 seeks, in effect, to extend the impact that strikes can have on the wider public. It would ensure that strikes could continue for up to six months of the whole strike mandate period after the Bill comes into force without the relevant minimum service level being applied. Parties, including employers, unions and workers, will have sufficient notice of minimum service levels prior to their application via, for example, the consultation or parliamentary processes that will need to take place before those regulations come into force. So our view is that further notice is not necessary.

Amendment 50 seeks to delay commencement of all provisions of the Act, including the regulation-making powers, until two years after the day on which the Act is passed. My noble friend will be unsurprised to know that the Government do not support this amendment. Practically, the legislation will not take effect, as I have said, until the regulations are made to specify the relevant services that minimum service levels shall apply to and the levels of service that an employer can require its workers to provide in relation to strikes. This amendment would mean that the earliest point at which minimum service levels could be enforced in practice is two years after the Act is passed.

Amendment 51 would result in further delays that essentially duplicate the work and the report of the Joint Committee on Human Rights that has already been published, requiring yet another report before minimum service regulations are made. Again, we feel that this would be unnecessarily burdensome and serve no practical purpose, because these amendments would just delay the implementation of MSLs. I realise the Opposition would like to do that, but it is not the position of the Government. Therefore, we cannot accept these amendments, which, for no good reason or constructive purpose, would significantly extend the disproportionate impact that strikes can have on the wider public, on which lives and livelihoods depend. Therefore, I hope that the noble Lord will withdraw his amendment.

[Baroness Fox of Buckley (Non-Afl)]

I completely support the Minister’s aspirations for the public to be able to conduct their lives without disruption. They want to be able to use transport and health services. But when the minimum service levels are decided by whoever it will be—we are unclear—will the Government be penalising those employers who do not provide them on non-strike days as well? I just wondered. We do not know what the minimum service levels will be. If 50% of the trains need to run, that would mean all signalpeople would have to work. I would like to be able to use the same Bill to have a go when I cannot get a train, the ambulance does not come or what have you, but it is the fault not of the strikers but of the organisations or institutions. Can the Minister extend this Bill so that I can use it to sue the people who do not deliver the services I need to live my life?

[Lord Callanan (Con)]

The noble Baroness says that these regulations will be imposed by whoever feels like it. They will be imposed by this Parliament because we are consulting on minimum service levels in three areas that will be subject to regulations. Each sector is different, which is why we have laid some consultations on the regulations; we are interested in hearing views. Again, the noble Baroness is getting ahead of herself. The noble Lord, Lord Fox, has amendments in later groupings similar to what the noble Baroness wishes to bring about; perhaps if she restrains her enthusiasm, we will get to these points later.

[Lord Collins of Highbury (Lab)]

I just want to pick up the point about consultation. The Bill talks about six sectors but the Minister keeps referring to three consultations. Those consultations do not cover all the people in the sector who are referred to in the Bill. Can the Minister give us an idea of who in those six sectors will be consulted and when? We have had three consultations on a narrow element; not everyone in transport or health has been consulted, for example. Can the Minister give us a timetable and an idea of who will be consulted and when?

[Lord Callanan (Con)]

Clearly, the answer to the noble Lord’s question is that anybody can respond to the consultation. We have issued three draft statutory instruments in three sectors; we are interested in hearing responses from trade unions, members of the public, et cetera.

[Lord Collins of Highbury (Lab)]

My Lords—

[Lord Callanan (Con)]

Can I answer the noble Lord’s first question before he asks me another? If we choose to move ahead—if the Bill is passed and the powers are granted—and we think it sensible to impose minimum service levels in other sectors that are allowed by the Bill, again, we will publish a draft consultation and people can respond to that in due course. The noble Lord has another question.

[Lord Collins of Highbury (Lab)]

I asked the Minister a specific question but I am afraid that he did not answer it. Do the three consultations that have been issued cover all the categories of worker within that sector, as mentioned in the Bill? If not, when will other people in that sector be consulted, and what will the timetable for the others be? My understanding is that not all transport workers have been consulted on that draft.

[Lord Callanan (Con)]

I am sorry if the noble Lord finds this confusing. On the sectors where we have introduced draft regulations—let us take the example quoted by the noble Lord of rail services—those consultations are in rail services. If other transport workers, in relation to whom we have not yet chosen to introduce minimum service levels, wish to respond to that consultation in generality, of course they can do so. We will take their interests on board.

[Lord Collins of Highbury (Lab)]

I hope that we will come back to this. I keep coming back to the words of the noble Lord, Lord Lisvane, which always echo in my mind: policy and legislation. We have legislation but no idea what the policy is. The Government have committed to consult. There are six sectors that will be affected by this Bill. The Government have started consultation only in small parts of those sectors. For example, in transport, they have consulted only on passenger rail, not on freight rail or buses or any other element of the Bill. When are those elements going to be consulted? When are the Government going to start launching that?

[Lord Callanan (Con)]

I am not quite sure what the noble Lord is saying. Is he saying that he wants us to introduce minimum service levels in all those sectors as well? If he does, I will take that comment back to the relevant Secretary of State; perhaps they will wish to introduce MSLs in those sectors as well. However, as the noble Lord has observed, the categories in the Bill are fairly widely drawn. In the short term, we, as a Government, have chosen to consult on regulations in those specific sectors. It may be that, in future, if Parliament grants us the powers, we will consult on additional regulations but, at the moment, we have no plans to do so. We have consulted on those three particular sectors.

[Baroness Chakrabarti (Lab)]

Can the Minister explain why this approach to the legislation was adopted? I know why I object to it. I know why the noble and learned Lord, Lord Judge, objects to it. I have a view about the importance of primary legislation. When people’s rights and freedoms are being constrained in this way, there should be foreseeability; by the way, when the Minister answered earlier on Section 19(1)(a) and how seriously he takes the obligation to make a statement on compatibility—I believe him—he did not set out his reasoning as to how this is in accordance with law in terms of foreseeability.

Pragmatically, I just want to ask him this: why was this approach adopted rather than the approach of formulating the policy in each area first? Frankly, purpose-specific primary legislation should then be brought to deal with a minimum service agreement in one sector that could not have been achieved by consent.

[Lord Callanan (Con)]

In some sectors, of course, some minimum service levels have been agreed by consent. We have said that, if that MSL is sufficient and we view it as adequate, we may choose not to regulate in those particular sectors.

With regard to Section 19(1)(a) statements, the Government do not comment on legal advice that they receive; that is a long-standing tradition for all parties in government. I can say only that I take my legal obligations seriously, as all Ministers do. I read the legal advice that I am given. If I have queries about it, I go back to the lawyers and ask them for further details. In this case, I was satisfied that the Bill’s provisions are compliant; therefore, as is my legal duty, I signed the declaration before the Bill was introduced to Parliament.

[Lord Collins of Highbury (Lab)]

We are going to return to these areas as we progress through the clauses.

I just want to return to my noble friend’s point; the Minister only sort of answered the question. This Government started off with a manifesto commitment and a pledge to introduce minimum service levels in transport. That has sort of disappeared. Now it is a broad power—so broad that we will have no idea of who will be captured by this primary legislation until we see secondary legislation, which we will not be able to amend or adjust in order to take other factors into account. The noble Lord, Lord Balfe, is absolutely right about what we have heard across the House.

I come back to the report from the Joint Committee on Human Rights, which states:

“The case has not been adequately made that there is a ‘pressing social need’ for imposing minimum service levels across the breadth of categories currently set out in the Bill. For example, the category of ‘education services’ is so broad that it might apply as much to private tutors and evening class teachers as to school teachers. Similarly, ‘transport services’ could include private taxi drivers.”


That is the point I am making: at what point will taxi drivers be next in line? The Government have these powers. We are giving them these powers. It comes back to Article 11. Surely, when we make laws, people ought to know how, or whether, they will affect them. We will not know that until a Secretary of State plants a statutory instrument; as the noble Lord, Lord Hodgson, said, such instruments are not fair because we will not be able to amend them. In his report to this House, the noble Lord, Lord Blencathra, criticised this method as being fundamentally undemocratic because, as he said, these are not technical issues; they attach to fundamental human rights. That is the opinion across the House. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

To pick up the point made by the noble Lord, Lord Hogan-Howe, what we are trying to probe here is why any category is within the ambit of the Bill and why they have been specified. We will come back to the specific amendments in the group, but the noble Lord asked a question worth remembering: is it proportionate and necessary to have the Bill, bearing in mind that we have arrangements for minimum service levels—we have called them a range of things and noble Lords have referred to them—and they work? The noble Lord referred to circumstances in which they have worked, so we come back to the question: what is the point of this Bill?

The noble Lord, Lord Fox, is absolutely right to ask—the noble Lord, Lord Balfe, said this too in his contribution on the previous group—why the very narrow, specific group,

“decommissioning of nuclear installations and management of radioactive waste and spent fuel” ,

has been included, given that there has not been a dispute or action that would require the Bill being applied. Surely we legislate for a reason. This highlights the fact that, as was said by my noble friends Lady Chakrabarti and Lord Whitty—whose contribution was absolutely right—we are increasingly seeing this as a political issue. It is not about resolving industrial disputes and providing support; it has another agenda.

On fire and rescue services, the Joint Committee on Human Rights mentioned the 2004 Act, and the Civil Contingencies Act also comes into play, where there are legal obligations. The Government have to understand that they are raising minimum service levels at a time when people in the public sector are striking because they are so concerned about the failure to meet minimum service levels. That is what doctors and nurses are worried about. I have heard from many nurses, including Members of this House, who have made that point—who would never have considered going on strike, ever. They made it very clear that, when they were in service, they would not have gone on strike, but they understand that the difference between then and now is in how nurses are valued, seen and even respected. That is the difference now. I heard the chair of the Police Federation make exactly this point on television. On the police not being able to strike he said that, when that was introduced, they were told that they would be compensated; it would be recognised that they had that obligation to serve the community. They do not feel that now, after a 17% reduction in their real wages. That is what people are really concerned about.

We are probing the categories that have been included because it seems so arbitrary. It comes back to the question of who is being consulted and when. It is not the six categories; it is not a broad range of people, even though the powers in the Bill will cover those areas. What is the minimum service level for border security? I hope the Minister can answer that. Is it a two-mile queue at Dover? Is it a completely blocked M20? Is it my having to wait three hours at Luton Airport because there was not sufficient staff? What is the minimum service level in those categories?

As it moves through Committee, I think the Minister will struggle to justify why the Bill is being introduced. It is a terrible Bill that does not do what it—supposedly—intends to.

[Lord Callanan (Con)]

I thank all three speakers in this debate. Amendments 2, 5, 11 and 12 seek to alter the sectors and services that are within scope of having minimum service levels implemented. Amendment 2 would stop minimum service levels being applied to education services for those over the age of 16 and rescue services in relation to fire and rescue services. Amendments 5, 11 and 12 would each remove one of the identified sectors from the Bill.

Amendment 2 specifically seeks to align the meaning of “relevant services” with the definition of “important public services” in existing legislation. The practical effect of this would be that minimum service levels would not be able to be applied to education services provided for those who are over the age of 16 and services which constitute “rescue services” in the context of fire and rescue. I am really not sure how that could work in practice, bearing in mind that the same personnel often provide the same services.

Strike action in these sectors has the potential for far-reaching consequences for members of the public who are not in any way involved in a dispute. This applies equally to education services for those aged over 16, as well as fire and rescue services, which is why they have been included in the legislation. In my view, it would simply not be right for students who attend a sixth form or further education college or university to be automatically ruled out of scope of minimum service levels while pupils aged 16 and under are not. Their education is no less valuable or important.

Additionally, there should be the potential for employers in the fire and rescue services to consider rostering staff to provide minimum service levels in response to road traffic incidents or in flood responses. Bizarrely, the amendment seems to be intended to prevent that. If you have a number of firemen on duty, those same firemen will be responding to house fires as well as car accidents, for instance. I do not see how there can be a distinction.

Let me also highlight what the legal ambiguity of this amendment could lead to. Subsection (4) of new Section 234B, as currently drafted, lists the key sectors that MSLs can apply to. There would then be a conflict between that section and the existing Section 226(2E) of the Trade Union and Labour Relations (Consolidation) Act 1992, over which the amendment would presumably seek to take precedence. On that basis, I therefore cannot support it. The Government will set out, via consultations, what services may be in scope of minimum service levels, just as the published consultations for fire, ambulance and rail services that we debated in the previous grouping have done.

On the remaining amendments, the key sectors outlined in the Bill stem broadly from the 1992 Act, as amended by the Trade Union Act 2016, as they have been long recognised as important for society to function effectively. As I have already said, strike action in these sectors has the potential for far-reaching consequences for the public. Fire and rescue services, as I said, routinely deal with emergency incidents that pose an immediate risk to the public, and strike action could impact on public safety. The Government take the same view that ensuring safety at nuclear sites is also of the highest importance, so it is right that nuclear decommissioning is within scope. Finally, without a permanent and skilled presence at the border, there is a significant risk to the security and prosperity of the UK. I will respond to the noble Lord, Lord Collins: of course, many other countries, because of the way that their border security is structured, actually prohibit strikes completely in border services, so we are not going that far.

The noble Lord, Lord Hogan-Howe, will know better than I do that some policing services are already restricted from striking. But I do take on board his point about the other essential elements of the policing service that relate to that.

[Lord Collins of Highbury (Lab)]

My Lords, can I just ask—

[Lord Callanan (Con)]

Let me respond to the noble Lord, Lord Hogan-Howe, and then the noble Lord can come back. I will take on board the points of the noble Lord, Lord Hogan-Howe, inquire for more details from the Home Office, and come back to him in writing. I will now take the intervention of the noble Lord, Lord Collins.

[Lord Collins of Highbury (Lab)]

No-one disputes what the Minister is saying in terms of the importance, particularly with emergency services, of that requirement. Can he tell us what assessment he made of the existing legislation, both the Civil Contingencies Act and the 2004 Act, in relation to this? What we are debating is why the Bill is necessary. It is not clear that the Minister has made the case.

--- Later in debate ---

[Lord Callanan (Con)]

I accept that the Labour Party does not believe that we have made the case; that is why we are having this debate. We picked the sectors because they were broadly in line with the 1992 Act, but of course there are good cases to be made for additional sectors, as the noble Lord, Lord Hogan-Howe, has intimated—

[Lord Collins of Highbury (Lab)]

Can the Minister answer the question?

[Lord Callanan (Con)]

We will take on board all of the requests for additional services to be included. Of course, we have considered the effects of existing legislation as well, but there is, apart from the bans in certain sectors, no other legislation in the UK at the moment indicating the provision of minimum service levels. We know that some minimum service levels are provided by agreement between unions in some areas, but not in others at the moment—

[Lord Collins of Highbury (Lab)]

Can I press the noble Lord? I think it is a fundamental point; he cannot just dismiss this with, “Oh, we did an assessment”. Tell us. The 2004 Act and the Civil Contingencies Act cover these areas. Why does he need this additional Bill in those particular sectors?

[Lord Callanan (Con)]

The Act does not cover minimum service levels in those sectors. I do not understand the point that the noble Lord is making. There are no minimum service level Acts in the UK at present; I think that in one of the contributions—it might have been the noble Lord’s—the point was made that MSL legislation does not apply in the UK at the moment. It is not something we have done previously, but we now consider that to be the case. I will take the intervention of the noble Baroness, Lady Chakrabarti.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister. I think the two points that are emerging, that I would be grateful for assistance with from the Minister, go like this. The first is that on one level, these six areas are very broad—this was highlighted, in a way, by the noble Lord, Lord Hogan-Howe. For example, “health services” is incredibly broad: everything from dental hygiene to ambulance services. Some of these things are potentially emergency blue-light services and some are not.

--- Later in debate ---

On the point about the Civil Contingencies Act, that is a very broad power to safeguard life in public emergencies. The regulation-making powers in that legislation would allow Ministers very quickly to create and enforce minimum service level agreements if the country was truly at risk.

[Lord Callanan (Con)]

We do not feel that the Civil Contingencies Act gives us the power to impose minimum service levels in the sectors that we have identified, which is why we are seeking this additional primary legislation, but I accept that there is a balance to be drawn. Noble Lords have seen two elements in the debate today between certain Members who do not want the legislation at all and do not believe in the principle of minimum service or safety levels, as it has been referred to—

[Lord Collins of Highbury (Lab)]

It is not correct to say that we do not believe in minimum service levels or in protecting people—far from it. As my noble friend will say later, we have negotiated and achieved minimum service levels across the board. The noble Lord, Lord Hogan-Howe, mentioned the fact that they have been achieved. We are asking whether this Bill damages the co-operation and support for those minimum service levels. We think it will; it will harm the situation.

[Lord Callanan (Con)]

I think that comes down to the essence of the political disagreement, and maybe I was not exposing myself correctly, but certainly the Opposition disagree with the minimum service levels legislation. I accept that in some areas the noble Lord might believe in minimum service levels but, as I have said, if voluntary negotiations are in place in certain sectors, that is preferable to the heavy hand of legislation, and we accept that. However, in the case of ambulances, some unions in some areas have agreed minimum service levels and others have not, so we think it is right to have the back-up of legislation in case we need to reach for it, but we hope that we do not need to use it.

As I was saying in response to the intervention by the noble Baroness, Lady Chakrabarti, this is about the essential political balance and what services should be included. I think the noble Lord, Lord Hogan-Howe, makes a good case that policing services should be included, and I will get him a full reply on that. That is the essential political judgment that the Government took when we were drafting this legislation about what services should be included, but I accept that there is political difference of opinion. Some people think they are too broadly drawn, some people think they are not widely enough drawn and some Members think additional services should be included. I can present only the legislation and view that the Government took on this at the time.

With that, I have concluded my remarks in response to the group, so I hope that the noble Lord, Lord Fox, will feel able to withdraw the amendment he moved on behalf of the noble Baroness, Lady Randerson.

[Lord Fox (LD)]

My Lords, I thank noble Lords for their comments and speeches on this group. I think we are beginning to draw the lines a little more clearly. First, I am delighted that the Minister has come out as a bulwark against legal ambiguity. I will clean up our legal ambiguity by withdrawing Amendment 2 shortly, if he clears up his legal ambiguity by withdrawing the Bill.

Looking at the rest of the debate, I think I am beginning to see the problem, which is the difference between minimum service levels and emergency cover. Some of the services highlighted in this Bill are emergency services; they are services that you need in extremis. Some of them are in the Bill, and some of the ones that the noble Lord, Lord Hogan-Howe, mentioned are not. Some of them, particularly transport, are not generally services that you need in extremis. In that case, minimum service level is an appropriate term.

For the others, emergency cover is covered in the Civil Contingencies Act, and the trade union Acts of 1996 and 2002 are more appropriate. In reverting to the language of minimum service level when referring to services that are required in extremis, the Minister is accidentally or deliberately missing the point. I think we will come back to this on a number of occasions, so it would be helpful if the Minister can be persuaded to understand it, even if not to agree with it. On the basis of trying to bring us all together, I beg leave to withdraw Amendment 2.