Strikes (Minimum Service Levels) Bill

Lord Collins of Highbury Excerpts

2nd reading
Tuesday 21st February 2023 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I start by thanking the noble Baroness, Lady O’Neill of Bexley, for her excellent maiden speech. I truly welcome her commitment to public service and her aspiration to make a difference; she will make a strong difference in this House. I also agree with her wholeheartedly that we need more women in Parliament and certainly more women in power. That would also make a difference.

I wish to mention the fact that the news tonight is that, at long last, the Government have agreed to sit down with the RCN and negotiate a settlement that will truly reflect the value this country places on nurses. The pity, of course, is that it has taken so long to reach this point. Some 140,000 appointments need not have been cancelled had the Government talked to the RCN, rather than ignoring its position. That is an important thing which we should have in the backs of our minds when we talk about the Bill.

A major focus of today’s debate, and a point which the noble and learned Lord, Lord Judge, made clear in his contribution, is whether it is right that we make laws this way through skeleton Bills. Whatever your Lordships’ views about the state of industrial relations in this country, we should all agree—across this House— that a rushed process which puts power over making laws in the hands of Ministers without proper parliamentary oversight is simply not right. I make that appeal to all Members of this House.

The noble Baroness, Lady Browning, quite rightly said that she welcomed the affirmative procedure in relation to the secondary legislation. However, let me remind her of the words of the noble Lord, Lord Hodgson, who said on 12 January in the debate on the Select Committee report that nobody

“could reasonably argue that secondary legislation is as effectively scrutinised as primary … Secondary legislation is unamendable. It can be passed or rejected but it cannot be amended. Secondary legislation is unamendable. It can be passed or rejected but it cannot be amended.”—[Official Report, 12/1/23; col. 1537.]

and that is not proper scrutiny in terms of the principles addressed in this Bill.

In that same debate, which I had the honour of responding to on behalf of the Opposition, the noble Lord, Lord Blencathra, a former Minister, said that

“when laws are passed without proper parliamentary scrutiny, they cease to be just technical, as they threaten the rights and freedoms of the individual.”—[Official Report, 12/1/23; col. 1532.]

Are not those words absolutely right in the context of this Bill? The noble Lord also reminded us in that debate that the excuse that excessive delegated powers are needed because Parliament cannot move quickly enough has been proved false on many occasions, not least by this Parliament’s reaction to Covid legislation.

Of course, noble Lords in this debate have referred to Jacob Rees-Mogg, a declared supporter of the Bill’s aims. He said in the Commons that

“this is not emergency legislation”

as the Conservatives had been contemplating these sorts of actions since 2016, and criticised its lack of detail when instead it

“should set out clearly what it is trying to achieve”.

He also said, as we have heard, that the Bill is badly written and an

“extreme example of bad practice.”—[Official Report, Commons, 30/01/23; cols. 88-92.]

That should be enough for this Chamber to say, “This Bill is bad”. However, what of Rees-Mogg’s policy objectives of imposing minimum service levels to replace what I believe, and what noble Lords have tried to put across tonight, is the current effective system of agreement between unions and employers for cover during industrial action, instead of the “one size fits all” mandate from Ministers?

I must admit that I always enjoy the contributions of the noble Lord, Lord Dobbs. Evoking the 1970s and 1980s is fair game, I am sure, but it is not reality or where we are today. My noble friend Lord Liddle was right: things have moved on. A lot of that legislation which imposed ballots has resulted in much stronger and more effective mandates. When British Airways are threatened with a massive mandate for industrial action, it cannot wait for that strike to take place. The cost to them has already hit because people cancel their bookings. They are not going to risk carrying on.

That is not what this is about. We do not need to evoke the 1970s and the 1980s. This is not about people pushing things to the limit. This is about our public services—our nurses and the people who support those nurses. In every element, these people have shown their worth in the last two years. That is what we should focus on.

Is this legislation going to do what it says it is intended to do? The simple fact, as we heard again in this debate, is that it will not. Mark Phillips, the chief executive officer of the Railway Safety and Standards Board, told a fringe meeting at the Conservative Party conference last October:

“If you introduce minimum service levels there’s the huge issue of how is that level set, and particularly if you set that minimum level and you’ve rostered staff to work. I would suggest you’d probably have a much higher level of sickness arise because of that because people won’t want to be seen to be breaking the strikes that their colleagues are involved in.”


As the noble Lord, Lord Fox, asked, what is the minimum standard level? There are many people who would love a minimum standard level, and they are certainly not receiving it at the moment. It is not just Avanti West Coast: every train service coming into London suffers from a shortage of staff; every hospital suffers from a shortage of staff; every GP surgery suffers from a shortage of staff. Why? It is because we are not attracting enough staff to do the job; we are relying, as the noble Baroness said in her maiden speech, on people’s commitment to public service. That is not sufficient to run a 21st-century-standard service.

Until today, we have had no sign of an impact assessment for this Bill. This morning, the RPC published its opinion of the impact assessment. The Minister is going to have to put a very brave face on that. It received it on 2 February, several weeks after the Bill had already been introduced to Parliament. It was red-rated: not fit for purpose. How can we scrutinise this legislation with that sort of back-up? The real criticism is the insufficient assessment of the impacts of the Bill on small and micro businesses, which is required under the Government’s own Better Regulation framework. I tried to read the 54 pages of the impact assessment, but we had it only an hour before this debate. I must admit that I was shocked by its amateurish nature, and especially by the impact on industrial relations.

My noble friend Lord Monks raised the fact that, when the Government tried to introduce minimum service levels in the transport strikes Bill, we had an impact assessment that said that minimum service levels could have a negative impact on industrial relations, increase the frequency of disputes, lead to greater use of action short of strike, and increase operational costs for employers, with a particularly onerous burden on smaller operators. That was in the first impact assessment, and this one tried to skate over all of that. Clearly it is not sufficient.

The Government are trying to hide the severe and disproportionate impact that their legislation will have on businesses, particularly small businesses. It is no wonder that they are trying to push this legislation and rush it through Parliament, because it really does not stand up to one bit of scrutiny.

The Bill does not define the factors that the Secretary of State will take into account when drafting regulations on minimum service levels. The only limitation on their powers is that the regulations may specify only services that fall within extremely wide categories: health services, education, fire and rescue, transport services, decommissioning nuclear installations, and border security. These will cut across both the public and private sectors and could include ancillary as well as core operational roles. Power is given to the Secretary of State to determine the scope of these services by regulation, without any guidance from Parliament.

There is nothing in the Bill to prevent ancillary staff being included, nor to prevent the legislation extending to a wide range of forms of transport, from taxis to passenger flights. We have heard the noble Lord, Lord Greenhalgh, talking about extending it to all kinds of services, including the ground crew. I am sure some people want to see an extension to ban strikes—a fundamental right. When we talk about conditions in China or Russia, we are quick to defend people’s right to organise—and quite right too. These rights are well fought after, and we should protect them, not allow them to be attacked in this way.

As the TUC asked in its excellent briefing on the Bill, what will a minimum level of service be? It could even mean a service at 90% of normal levels or an entire group of workers could be prevented from taking industrial action. In exercising these wide powers, a Secretary of State may “amend, repeal or revoke”, as my noble friend said in her introduction, and is empowered to do the same for Acts of the Scottish Parliament or the Welsh Senedd. What are these draconian powers for?

One looks at the Bill and sees how undemocratic it is and how it cannot possibly work in practice. What is it for? The noble Lord, Lord Fox, is absolutely right: I can see the election posters now, but it does not help our public services.

It is not only employees and trade unions that are concerned; I know that employers are deeply concerned, because some of the biggest employers in the public and private sector have told me that they are. They are very concerned about the complete lack of consultation. A Bill is brought in; nobody is consulted; consultation starts late and is only in three categories. As I said, it is not clear exactly who is covered by these categories.

I also want to raise the question of ILO conventions and the position of international labour standards. There is no obligation to ensure that the regulations are consistent with ILO conventions. We know that the ILO has already raised concerns about existing UK labour law which the Government have failed to address.

I appreciate the meeting my noble friend and I had with the Minister about the Bill. We had a good and frank exchange and I asked whether the Government will publish their assessment of why the Bill is compatible with international law. He said, “Oh no. We don’t publish legal advice.” I do not want the legal advice; I want the Government’s assessment of how they reached their conclusion that the Bill meets our obligations. I want to hear or see the political decision, not the legal advice. I want to know whether they have done a correct assessment of what pertains in Spain and France. What statutory rights do workers and trade unions have? The collective agreements are totally different; the organisation is totally different. It is not a fair comparison. As the ILO has stated, we now have much greater restrictions on the power of trade unions to organise.

I know that I have gone on for quite a long time, but I conclude with this point. [Interruption.] Well, it needed to be said, and I am sorry if people are bored with the repetition, but as we move to Committee, let me assure noble Lords that we will probe this Government to produce the evidence for why they have introduced this Bill. As my noble friend Lady O’Grady said in her opening speech, this Bill is unfair, undemocratic and unworkable, which is why we are committed to repealing it in its entirety at the soonest possible date.

Strikes (Minimum Service Levels) Bill

Lord Collins of Highbury Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

Moved by

[Lord Collins of Highbury]

1: The Schedule, page 3, line 15, leave out “even if” and insert “unless”
Member’s explanatory statement
The amendment seeks to stop regulations under this Bill from being applied to strikes which have already been balloted for.

[Lord Collins of Highbury (Lab)]

My Lords, I am sure that the Minister will feel a bit like me, having done two days of Committee on the retained EU law Bill and now going straight into this. I hope the Committee will forgive me if I stray into areas where my brain could still be stuck on that Bill. Anyway, let us have a go. The difficulty with this Bill—it is similar to the one we were considering for five days—is that it is a skeleton Bill. It is very difficult to understand the policy objectives and purposes, and what the meaning of these things will be. We do not really have a clear impact assessment of it.

I start with my amendment in this group about the lack of reports we have received. Certainly, no reports or impact assessments were available when the Commons considered these issues. We have now had them, and our own Delegated Powers and Regulatory Reform Committee gave a very clear statement about the Bill. However, I want to focus on the Joint Committee on Human Rights report referenced in my amendment. I have never seen a report condemn a Bill in such a way. The Committee found that

“the Government has not adequately made the case that this Bill meets the UK’s human rights obligations”.

It highlighted—we will address this in other amendments—the lack of clarity around

“The requirement that trade unions take ‘reasonable steps’ to ensure their members comply with a work notice”,


which may fall foul of Article 11 of the European Convention on Human Rights. At Second Reading, the Minister constantly said that we are meeting our international obligations, but the Joint Committee on Human Rights certainly does not agree.

The fact that we are uncertain about what these things mean leads me to the question of how the Bill will impact existing disputes. Not only do we have a poor definition of the sectors which may be engaged and such broad categories that we do not know exactly what will be in it, we also do not understand what minimum service levels are, how they will be applied and how they will be applied in those categories. Absolutely nothing is clear. It is all going to be reliant on statutory instruments—secondary legislation.

Again, a Committee of this House—I raised this, along with the noble Lord, Lord Hodgson, last night—has been very clear; the problem with skeleton Bills and secondary legislation is that you end up with proposals being put forward that this House cannot give proper consideration to. We cannot amend, change or improve them. None of those things applies here or down the other end, so we are presented with a fait accompli to reject or accept. That is an extremely difficult situation to be in.

Particularly in Amendment 1, we are probing when the measures in the Bill will apply and how. I particularly want to hear very clearly from the Minister if this will be applicable to disputes that have already commenced. If it will—if the mandate has been established, and a trade union has complied with every legal requirement in balloting and notices and the mandate was democratically arrived at—is the Bill going to impose an additional requirement on trade unions? Will they have to say to their members, “You may have balloted, met all these statutory requirements, and have a legal right to strike”, but the Government will insist now that the union tells them they must work? Can that possibly be right at all? We will go through all this as we move on, but what a situation to be in. How can that be justified? It will lead to people not fully understanding their rights and responsibilities. We will look at this in other groups, but this could impact areas in which we already have minimum levels of service and agreements to ensure that things are protected. This potentially undermines those, especially if there is confusion about the categories of employees within a sector mentioned in the Bill.

I come back to the point about retrospection. Are we suggesting that someone who has complied with all the legislative requirements entering a dispute can suddenly be faced midway with the understanding that their protection from dismissal is lost? If the Minister comes back and says, “The Bill is not about dismissal or sacking people”—I will probe strongly on that—what will it result in? Will it result in huge penalties against unions? If the union loses its immunity under the Bill on a dispute which has started and met all the statutory legal requirements, is the union going to be vulnerable to further attacks? It is not acceptable. If there are to be situations like that, I dread to think what would happen. People cannot be forced to undertake something where they started knowing their full legal rights, but the situation changed.

On the Joint Committee on Human Rights report, there are a number of areas I could address but I will not at this stage. I will pick them up in other groups, but it is very difficult to not stray into areas beyond the terms of the specific amendment, because nothing is properly defined. Committee is an opportunity to interrogate, probe and have conversations. I hope we will be able to do that on this group because so much is unclear. I beg to move.

[Lord Fox (LD)]

My Lords, the first two amendments in this group look, sequentially, either backwards or forwards. I agree with the noble Lord, Lord Collins, and his colleague the noble Baroness, Lady O’Grady, that the Bill should not apply retroactively. I am sure we agree that it should not apply at all, but the arguments set out by the noble Lord, Lord Collins, about the unfairness of retroactivity are clear, and probing the Government’s intentions for how the Bill would be applied is very helpful.

--- Later in debate ---

[Baroness Noakes (Con)]

My Lords, I will make comments on two aspects. First, it is not the case that the Bill is retrospective in effect because, by definition, it applies only to future strike actions. The fact that the strike action might have been initiated before the Bill is completely irrelevant. It applies to protect people who are suffering from the lack of services in the future, so it is not retrospective.

[Lord Collins of Highbury (Lab)]

I do not understand why it is “completely irrelevant”. Is the noble Baroness saying it is irrelevant if people participate in a ballot, there is a democratic decision, a dispute is held, the mandate is proper, everyone knows their legal rights and responsibilities, and the unions have had to go through huge hoops to get there?

[Baroness Noakes (Con)]

I am. The need for the Bill has been established by a lot of rather irresponsible action by some of the unions which has completely disrupted the lives of ordinary citizens. Remember that the Bill is designed to protect the lives of ordinary citizens and to balance their rights against those that the noble Lord referred to. It will apply only to future strike action by workers—that is the most important feature.

Secondly, I will address the Joint Committee on Human Rights. Both noble Lords who have spoken struggled to paint this as a very damning report. It is not: it does not say that the Bill does not comply with international obligations but instead says things like it is “difficult to establish” or that it “arguably” contains insufficient provision. Although I have great respect for the Joint Committee on Human Rights, and particularly its chairman, who is an acknowledged expert in this area in her own right, it is not the arbiter on whether bits of legislation comply with human rights law. At the end of the day, it is for the courts to decide. The Government believe that it is within our international obligations, and there are good arguments for that. We should not take the view of one committee of Parliament as being determinative, even if that committee were clear and unambiguous in its findings, which it was not.

--- Later in debate ---

However, I worry that what we are reading in the newspapers, seeing in legislation and hearing in ministerial rhetoric every day is a deliberate electoral strategy of turning people against one another and setting the Government and the putative electoral machine on a confected collision course with, one minute, the domestic courts and, the next, the Strasbourg court—sometimes, it is the unelected Peers; sometimes, apparently now, it is even the Joint Committee on Human Rights. With this Bill, of course, it is the trade unions. I remind all noble Lords, whether my noble friends or I like it or not, that a lot of members of trade unions did not vote Labour in recent elections; by definition, many of them must have voted Conservative. Is this kind of deliberate class war a good political move, let alone an ethical move, on the part of noble Lords opposite? I see the noble Baroness laughing.

[Lord Collins of Highbury (Lab)]

It is not funny.

[Baroness Chakrabarti (Lab)]

I do not find this kind of deliberate strife—a confected division of our very troubled country—amusing at all, and I look forward if not to the noble Baroness’s response then to that of the Minister in due course.

[Lord Henley (Con)]

My Lords, I sit on the Joint Committee on Human Rights and therefore my name is attached to that report. We have heard various descriptions of the report coming from the Opposition Front Bench, the Liberal Democrat Front Bench, my noble friend Lady Noakes and the noble Baroness, Lady Chakrabarti. As the noble Baroness, Lady Chakrabarti, put it, the report asks some questions and raises doubts about whether the Bill is compliant. We had only a very short time in which to look at the Bill, because it is being brought through rather quickly. We had one evidence-taking session, and we sent out a call for evidence, to which there were a number of responses. I cannot say that our examination of the Bill was as in depth as it would have been for any other Bill. Nevertheless, I can say that the descriptions of the report from the Opposition Front Bench and the Liberal Democrat Front Bench are not quite the same as what I have heard from my noble friend Lady Noakes or even from the noble Baroness, Lady Chakrabarti, who, quite rightly, set out that, although we raised doubts, we did not give that damning report that was the impression one got from the speeches from the Opposition Front Bench and the Liberal Democrat Front Bench.

I would have signed up to the report only if I was happy with it. Although the report raised some doubts, it did not say, “This is not compliant”; it made it clear that we thought that there were questions to be answered. Those questions will, quite rightly, be answered by the Government when my noble friend the Minister comes to respond today and, no doubt, at later stages. There was not time either for my noble friend or whoever is the responsible Minister to come to the committee and give evidence; no doubt they would like to have done so, and no doubt there will be a possibility of their doing that in future.

I just want to make it clear that there are different ways of looking at the report. What my noble friend Lady Noakes, the noble Baroness, Lady Chakrabarti, and I are saying is probably a better picture of it than what we heard from the Opposition Front Bench.

[Lord Collins of Highbury (Lab)]

I certainly would not want to mislead the Committee. What I was trying to say at the beginning is that the problem with the Bill is that we do not know what it is going to lead to. As the report states—my noble friend raised this point—

“the requirement for trade unions to take ‘reasonable steps’ to ensure their members comply with a work notice issued by an employer does not provide the clarity needed to guarantee that trade unions and employees will know when this duty has been met and when it has not … As drafted, the provision … may fall foul of the requirements of Article 11”.

I shall keep coming back to this point: we simply do not know how our rights will be impacted, because it is not clear or foreseeable.

I think that it is an excellent report; I was not overegging it at all. There will be a lot more questions on this as we move through Committee. My other point is that not only are we not clear about what is foreseeable, but we are now hearing from the noble Baroness, Lady Noakes, that this legislation would apply even though a union has complied with all the current statutory legal obligations.

I am glad that the noble Lord, Lord Forsyth, is here, because I remember the 1980s as he does, including the legislation that had to be passed. There are many hoops, so somebody who starts at the beginning of an official, legally recognised dispute, will then be told half way through, as a consequence of this potential legislation, that they do not have the right to go on strike. Worse still, there will be a legal obligation on the union to tell them that they cannot go on strike. So the union which organised the ballot for them to strike and has met all the statutory requirements is suddenly being told that they have to take reasonable steps. What does that mean? Does it mean that they instruct the person not to go on strike? I hope that the noble Lord can clarify that for me.

[Lord Henley (Con)]

Like my noble friend Lord Forsyth, I also remember the 1980s. Probably one of the problems of this House is that we can all remember the 1980s slightly too well—possibly excluding one or two other younger Members of the House.

I am not accusing the noble Lord of misleading the House. These things are always just a question of tone. Certainly, with the great many reports that come to the Joint Committee on Human Rights, it is matter of getting the tone right, so that we can all come to an agreement. On that committee, and I am sure it is true for a great many other committees, we always try to get agreement from every member; that helps to give greater effect to the report. Interpreting the tone of the report is important. That point was the only reason I wanted to make a contribution; I was not planning to speak on the Bill. I will probably stay here for much of the rest of the debate to make sure I can contribute as appropriate; I will ensure that I have a copy of the report in front of me.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Amendment 1 withdrawn.

--- Later in debate ---

We could have added a few more to the list; I have just given two main ones. Covert surveillance quite often now involves police staff; covert technical surveillance includes police staff. If you accept the principle—I realise that the Opposition do not—that the Bill is necessary, the list needs to be different. I accept that the Opposition want to reduce it, but I am asking whether we could consider extending it.

[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.

[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.

--- Later in debate ---

[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.

Strikes (Minimum Service Levels) Bill

Lord Collins of Highbury Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

[Lord Markham (Con)]

We absolutely try to guard against that possibility and get there in the end. The sincere hope is that none of this is ever needed but, as both the nurses and the unions are saying that they will not provide A&E cover—we are seeing a lot of dates where there might be strike action by more than one union at the same time—I think all noble Lords can see a real possibility that A&E services could not be provided in those circumstances. It is those aspects we are trying to protect here. The hope is very much that it is never needed because the trusts, as has happened to date, will be able to put in place the right voluntary agreements. That is the purpose behind this.

I will try to answer the questions raised by the right reverend Prelate the Bishop of London, the noble Lord, Lord Prentis, and others, about trying to undermine the trust between the hospitals, in this instance, and employees. I go back to the position that it is for the trust to work with local unions to work out what the best level is, in the hope and knowledge that this will probably never be needed. It is just enabling legislation because we can see that there are circumstances, as I mentioned before, where it might be needed.

I will try to answer some other questions. On the point about the treatment of devolved Governments, I go back to the point of it being up to individual trusts.

[Lord Collins of Highbury (Lab)]

Before the Minister moves away from the trust issue and the point made by the right reverend Prelate, does he think that the threat of this law will impact trust and confidence in the current arrangements? Does he sincerely believe that the threat being introduced will not impact that trust?

[Lord Markham (Con)]

I believe that the principles are there in the derogations. Again, I believe no one wants to see any circumstances where there is a threat to life. That is felt uniformly by all of us and everyone in wider society. At the same time, the point I made is that, if you have nurses, doctors and ambulance workers all on strike at the same time and all saying that they are not going to provide A&E cover, we can all see the very real prospect that that is going to be a threat to life and limb. Those are the circumstances that we are talking about.

To answer the question from the noble Baroness, Lady O’Grady, if a trust within a devolved Government does not want to take this up, it does not have to. In exactly the same way, a trust in England does not have to take this up if it does not feel that it is needed, but it is there as a last resort.

To further answer some of the questions on whether that could involve private companies, maybe the best example is the case of the train services. That is obviously a different aspect of this, but in some areas of health we know that we are moving towards a digital world. As the noble Baroness knows, it is something I am personally responsible for. We can see digital services being the backbone of the health service more and more. In some cases, their ability to be there will be vital for the protection of life and limb. These may be unlikely circumstances but, in all honesty, I can see circumstances where that would need to be involved if it meant that there was some risk to life and limb.

--- Later in debate ---

[Lord Markham (Con)]

I thank the noble Lord. This again relates to consultation. In all of these circumstances, for services that we think could be critical, we would go through the 12-week consultation process, followed by the 12-week implementation period. That is how the private company in this example would know there was a possibility of becoming involved in this, and there would be the consultation process to consider the matter fully.

On whether this is compatible with Article 4, again, we are talking about only circumstances where people potentially going on strike would cause a threat. We have circumstances like that already: the police and the military are not allowed to strike, and it is not considered that that conflicts with Article 4. So I do not think there is a read-across in the same way—

[Lord Collins of Highbury (Lab)]

In the two cases that the noble Lord mentioned, commitments were put in place for both the Army and the police. Does he think that those sorts of commitments should be given to our health service workers, who delivered a lot during the Covid epidemic, as he knows?

[Lord Markham (Con)]

We all agree that they did a huge amount. I do not think that there is a particular difference in circumstances: the principle behind the derogations today is to provide that life cover. That is absolutely there, which is why the hope and the thought is that this legislation might never need to be used. As I said, it is very much a back-pocket thing because, in the circumstances described today, it has managed—

[Lord Markham (Con)]

We are talking about the absolute minimum services. As I said, we had the consultation process. Clearly, we would be saying that this is an area where there is a real concern over the risk to life and limb—that would not apply to some of the noble Baroness’s examples—and we would then go into the 12-week consultation period to work through that. The burden will be very much on us to show that that risk to life and limb absolutely is there, because that is that principle behind all of this.

[Lord Collins of Highbury (Lab)]

So is the noble Lord saying that those are the circumstances in which the powers in the Bill would be introduced? If so, can he explain passenger transport to me?

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran)]

My Lords, it is a pleasure, as my noble friend Lord Markham said earlier, to respond to your Lordships’ critical challenge. I thank the noble Lord, Lord Collins, and the noble Baroness Lady O’Grady; it really is a pleasure to be across the Dispatch Box for their amendments. I put on record the Government’s appreciation for all teachers, teaching assistants and staff who work across our schools and colleges and in higher education for the extraordinary and valuable job that they do.

Amendments 6 and 7 seek to remove the education sector and education services that are within scope of having minimum service levels implemented. As noble Lords know, the key sectors outlined in the Bill broadly stem from the 1992 Act as amended by the Trade Union Act 2016, and they have long been recognised as important for society to function effectively.

The noble Baroness asked why we need minimum service levels in education services. She can probably anticipate my answer, which is twofold: first, they have far-reaching consequences for children, who are potentially denied access to education if their teachers or other staff are on strike, and, secondly, it has an impact on their parents, many of whom work in other critical services but are unable to go to work. It is only right that these essential services, which the public pay for and expect to be there when they need them, are included in the Bill so that there is a reasonable balance between the ability of workers to strike and the rights of the public. The Government therefore cannot support the amendments.

Amendment 7 would exclude the vast majority of education services from the Bill. The Government believe it is right that the detail of specific services and minimum service levels is set out in secondary legislation. I am afraid that is why, in response to the noble Lords, Lord Fox and Lord Hendy, who asked for specific detail on criteria and metrics for minimum service, I am unable to give that detail to the Committee today.

[Lord Collins of Highbury (Lab)]

Sorry to interrupt, but the Health Minister was able to do that so I do not quite understand why the noble Baroness cannot.

[Baroness Barran (Con)]

My understanding is that the policy in this area is perhaps more developed in health, where I understand a public consultation has been published in relation to ambulance workers. That is not the case for education.

[Baroness Barran (Con)]

Genuinely in the spirit of being helpful, those are matters for a consultation if the Secretary of State decides to proceed with one.

[Lord Collins of Highbury (Lab)]

If I may correct the noble Baroness, the Health Minister was not setting out the consultation, which is restricted to the ambulance services. He was specifically talking about accident and emergency and life and limb. So the Department of Health clearly has reached a conclusion that was not subject to responding to a consultation.

[Baroness Barran (Con)]

I can only repeat that the Secretary of State is currently considering all options. When I am able to say more on this matter, I will be delighted to come back to the House to do so.

[Lord Collins of Highbury (Lab)]

Or write.

[Baroness Barran (Con)]

I will be delighted to write or take questions on this matter on the Floor of the House.

If I may continue, I will try to address some of the other points that noble Lords have raised. I think I said that on Amendment 7, which would exclude the vast majority of education services from the Bill, the Government believe it is right that the detail of specific services and of minimum service levels is set out in secondary legislation. The Government have no plans currently to move ahead with secondary legislation. Although this legislation gives us the power to introduce minimum service levels within education services, it is not our intention to do so in the short term because it is our strong preference to proceed by agreement and through guidance.

The noble Baroness, Lady O’Grady, asked about consultation. My right honourable friend the Secretary of State is considering all options at the moment. When those become clear, as I said, I would be delighted to update the House. The noble Baroness also asked about the ECHR memorandum and the reference to education. Since the Transport Bill was introduced, we have seen other essential services brought to a standstill. Therefore, the Prime Minister looked again at the issue and felt that disruption had spread beyond transport. Taking account of recent events as well as other evidence, there are a number of important services where the public should be protected, including children’s education, which should be protected against the disproportionate impacts of strike action for the future.

[Lord Collins of Highbury (Lab)]

If I may interrupt again, I think this is important because we are dealing with a skeleton Bill that outlines six sectors in which the Government will be given powers. What the Minister is saying—I do not want to put words into her mouth—is that, in respect of education, there is a hope that they will never use the powers that this Bill gives them, because it will be inappropriate. Therefore, I do not quite understand why education is there at all.

--- Later in debate ---

[Baroness Barran (Con)]

I have already been repetitively clear that the Government would much prefer to see voluntary arrangements in this area. Again, having been a governor of a school, as many of your Lordships probably have, it is not about picking one single thing that is going to make it more or less stressful. We need to be very clear that the role of governors is incredibly important. We appreciate them enormously and offer them the support that they need to do their role.

[Lord Collins of Highbury (Lab)]

Can I just reiterate this point? The Minister says that she and her department would much prefer voluntary arrangements, as they work and they support them. What is her view, or the department’s view, of the impact of threatening to take these powers on those voluntary arrangements? Does she think that it might undermine the voluntary arrangements that she has been advocating?

[Baroness Barran (Con)]

We very much hope that it would have the opposite effect.

--- Later in debate ---

Moved by

[Lord Collins of Highbury]

8: The Schedule, page 3, leave out line 28
Member’s explanatory statement
This amendment would remove “transport services” from the Bill.

[Lord Collins of Highbury (Lab)]

It is my turn—the noble Baroness and I are a double act today, and it has been very good. I am glad we degrouped the amendments on these sectors to probe the Government on exactly what they intend, because today we heard a range of opinions that I never expected to hear. I am rather disappointed that the noble Baroness, Lady Vere, is not here to respond, because we may have got a third view, different from that of the Minister, who has been clear about the intent of the Bill—

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

I tried to ask the noble Baroness, Lady Vere, but she had prior commitments; otherwise, she would have been here.

[Lord Collins of Highbury (Lab)]

I hope—I plead with the Minister—that the noble Baroness reads the debate on this in Hansard. If questions arise, I hope he will encourage her to write to us, because we have heard something quite critical: a definition, for the health service, of who might be involved and the issues involved. We could understand what the Minister was saying on health. But of course he was focused on the fact that the voluntary agreements are what works. The noble Baroness, Lady Barran, was even more clear that the better way is the voluntary arrangements, the agreements in place and the good industrial relations, even when there are disagreements that lead to a dispute.

Now we come to transport, where there are obvious questions. Who is the real target of the Bill? One cannot help feeling that there is a target in it, and it is not any of the things we have heard about so far. Of course, the area where we know the Conservative Party had a manifesto commitment on was transport— passenger rail transport. Of course, that Bill did not proceed, and instead we have this omnibus piece of proposed legislation, which includes everything but with no detail, no definition of minimum standards and no proper scrutiny. Every committee that has examined this has criticised it because of that nature. This comes back my noble friend Lady Chakrabarti’s point about proportionality.

So let us focus. I will come on to Amendments 9 and 10, but let us deal with the first amendment. I will focus a bit on passenger rail, because we had a very bad red warning—is that what they call it?

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

Red-rated.

[Lord Collins of Highbury (Lab)]

Normally that is a good thing in my party, but in this context it is not, because it failed completely. But let us go back to the impact assessment on passenger rail when it was introduced for the Bill that specifically addressed that issue.

In October 2022, the impact assessment for the Transport Strikes (Minimum Service Levels) Bill was tabled. It said that minimum service levels could have a

“negative impact on industrial relations, which could have detrimental impacts for all parties”.

It said that they could increase the frequency of disputes, meaning that

“an increased number of strikes could ultimately result in more adverse impacts in the long term”—

adverse impacts on all the people that the noble Baroness, Lady Noakes, talked about. They could lead to greater use of “action short of strike”, which would have a particularly significant impact in sectors such as fire and rail. The impact assessment further stated that minimum service levels could lead to “increased operational costs” for employers, with a “particularly onerous” burden on smaller operators, and result in lower pay and poorer conditions for union members and non-union members working in the relevant services. It went on to state:

“If terms and conditions are reduced over time relative to the strength of the economy in one sector then there is a potential for employers in other related sectors to be able to offer similarly reduced terms and conditions”—


we have certainly seen that in recent times.

--- Later in debate ---

[Baroness Randerson (LD)]

The TransPennine Express.

[Lord Collins of Highbury (Lab)]

The TransPennine Express uses that clause, and that is why the public can see through this legislation. This is not about maintaining minimum service levels; this comes back to the basic, fundamental idea that this is an attack on organised labour and its ability to protect its workers. It is the thin end of the wedge, as it were: we started off with transport minimum service levels and then the Government thought, “It is very difficult to define how that will work, so let’s not do that, because we will be forced to define what a minimum service level is in the rail industry and we will have to account to Parliament for that. So let’s go the whole hog: let’s get a skeleton Bill which simply gives us the powers to set minimum service levels across a whole range of services and occupations.” They say that they are focused on public services, but of course most transport services are well outside the public sector and have been for a long time, including aviation.

How do the Government envisage minimum service levels in aviation? Do we have half a pilot? Do we have half the safety staff in a plane? Do we have half the number of planes? I suppose that most unions would go for that last option in terms of a dispute in the airline industry. It is a nonsense, and it highlights that there is a target in the Bill: it is not necessarily the taxi driver, the aviation industry or any of the other things which could be brought into its scope; it is rail passenger transport. We do not even get a mention of freight transport and other things such as that.

I suspect that, as we lead up to the election, the Bill will form part of the Government’s narrative that they are on the side of the public and passengers and that, according to them, Labour supports strikes and unions. No, the Bill is not about that; that is a false narrative. The narrative is: who defends public services and who supports the commitment of the people who serve us? It is Labour who will support the people and public services. This Government have undermined them, and that is why we have these strikes. I beg to move.

[The Deputy Chairman of Committee (Lord Haskel) (Lab)]

My Lords, if this amendment is agreed, I cannot call Amendments 9 or 10, because of pre-emption.

--- Later in debate ---

[Lord Callanan (Con)]

I am happy to give the noble Baroness a letter, but I am not sure there is much doubt about it. Legislation is not dependent on whether the service is subsidised. Some rail services are heavily subsidised, and some are not. It is about providing the level of service to the public. There is no compulsion on employers to use a minimum service level if it has been set in their particular sector. It is probably quite unlikely that we would want to set minimum service levels in local bus services, but that is a decision for the Secretary of State if Parliament chooses to grant him the power.

[Lord Collins of Highbury (Lab)]

The Minister keeps repeating the mantra that it is up to employers. As I mentioned, the train operators have a unique relationship with the public and the Government. The Government contract them to provide the service, and I referred to the dispute handling clause within that contract. Will the Minister make clear to us whether in the consultation he has mentioned the Government will put pressure on the train operating companies even if they do not want these minimum service levels statutory powers and notices? Will the Government put pressure on them to use them?

[Lord Callanan (Con)]

I am sorry if the noble Lord thinks I am repeating a mantra. I am answering the questions that are asked of me. People keep asking me the question, so I keep giving the same answer, which is the legal position that there is no legal obligation on employers to utilise a minimum service level. That remains the case. I am sorry if the noble Lord thinks that is a mantra, but that is the legal position. I was asked a question and I am answering it.

Let me answer the other part of the noble Lord’s question. Clearly, in the case of rail, the taxpayer puts in billions of pounds a year to subsidise the service, so my personal view is that the Secretary of State has every right to seek to manage the service properly and effectively. However, the decision to issue a work notice, if the minimum service level applies and is set by Parliament at a particular level, comes down to the employer.

--- Later in debate ---

[Lord Hendy (Lab)]

I will not repeat what I said earlier today, but it is quite clear that the ILO in particular imposes conditions on minimum service levels that this Bill does not comply with. That is the difficulty for the Government.

[Lord Collins of Highbury (Lab)]

Those countries do not sack workers in these circumstances. We could end up with nurses and teachers being sacked.

We are led to believe that the Bill is a legal provision that will give incredible powers to Secretaries of State across a wide range of industries. Actually, the Minister did not address the question of aviation that the noble Lord, Lord Balfe, and I raised. It makes no sense that that sector, in this broad way, has been put in the Bill. Surely, as my noble friend said, the Transport Strikes (Minimum Service Levels) Bill would have attracted detailed scrutiny about how minimum service levels would operate and how to legislate for them in the railway industry. I have a sneaking suspicion that it was deemed that, “This won’t work; it will be too politically difficult and have too many legal implications. Let’s just give ourselves the power, and then we can determine through the comfort of secondary legislation how we might threaten this and implement it.”

At the end of the day, we will be able to scrutinise other elements of this Bill regarding how the minimum service levels will be set. It has been an interesting exercise today to scrutinise the generality of why these six sectors were picked but also to go through each one separately; we have been able to better understand the range of opinion within the Government and different government departments. I still think that, while the noble Lord, Lord Callanan, can hide behind the legal definition that it will be the responsibility of the employers, everyone out there knows that it will be this Government who will be telling employers to introduce these minimum service levels. The Government will therefore have to take responsibility and be accountable for the mess that they create. I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

--- Later in debate ---

Where does that leave us with the legislation? The postbags of Members at the other end of the building will be full every week with letters from people asking the Government to do something about all those things that I have listed—the care homes, drug availability, and what happens when people call an ambulance. That is what people want the Government to be getting on with, yet we are spending time today and the Government’s effort—and if the Bill passes we will be asking NHS trusts up and down the country and all the other organisations to spend their valuable management time—dealing with defining those minimal levels of services, rather than getting on with the job of delivering the minimum day-to-day level of service that people in this country expect.

[Lord Collins of Highbury (Lab)]

My Lords, this has been an excellent debate. Both noble Lords on the Cross Benches have highlighted something that we all knew would happen—that this debate would beg a question about what we can expect from our public services. What is the minimum level of service?

As we have heard, a common theme—not just in debate on this Bill—is about how people who work in the public service are genuinely concerned about its future. That is not just in the health service, by the way; there are lots of examples of people’s expectations. To be cynical, people might look at the minimum level of service set for strike days and think, “I’ll have that”, in certain circumstances. But if you speak to fire brigade members and other public sector workers, they will all give you the same message: there is a lack of investment, and they are worried about safety and their communities. It is not simply about pay and conditions—but when it is about pay and conditions, it is also about the shortage of workers.

In a commercial outfit, if you were not able to recruit, I know what you would do: put the pay up, improve the conditions, advertise it. That is not what we do in the public sector. We have seen cut after cut. I have been reading the BMA brief, and of course the Health and Social Care Committee has made the same point in terms of staffing. It describes it as “the greatest workforce crisis” facing the NHS and social care. There is persistent understaffing that poses a serious risk to staff and patient safety.

That is what the public will note when they hear these debates. They will not hear the Health Minister’s comments about life and limb; what they will hear is why, when someone has a heart attack, they have to wait four hours for an ambulance or, when they are in accident and emergency, they are on a trolley for hours and hours. That is what this debate is about, unfortunately. People want to see what the genuine priorities of this Government are. They will not be fooled by this narrative that is going to be developed about whose side you are on—they will not be fooled. They want proper public services and I think the noble Lords are absolutely right to say, if you are going to talk about minimum service levels, talk about it on non-strike days: how do you improve it? That is what people will be focused on. I hope the Ministers will listen.

[Lord Callanan (Con)]

My Lords, it is my pleasure to reply on this group containing Amendments 13 and 18, grouped together as they both relate to levels of service on non-strike days. The Government do not support these amendments on the basis that they add unnecessary limitations to and delays in establishing the minimum service levels. Amendment 13 seeks to cap minimum service levels to the lowest service levels recorded for a relevant service during the 12 months before regulations are laid. It would require the Secretary of State to lay a report in both Houses before introducing regulations to evidence this condition.

Before responding generally on that amendment, let me first answer the points made by the noble Lord, Lord Fox, regarding his correspondence with my noble friend Lord Sharpe. The noble Lord is correct to point out that one option within the consultation Minimum Service Levels for Fire and Rescue Services looks at staffing levels being geared to respond to specific risks, including a minimum standard to respond to a major incident. However, this is just one of five options outlined in the consultation, and I do not consider that my noble friend has prejudged that consultation. I know that he is very willing to engage further on minimum service levels for fire and rescue services with the noble Lord if that would be helpful.

Before I turn more directly to the amendments, I will take an intervention from the noble Baroness, Lady O’Grady.

Strikes (Minimum Service Levels) Bill

Lord Collins of Highbury Excerpts

Committee stage
Thursday 23rd March 2023 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, may I ask the Minister, when he comes to sum up, if he could clarify for the Committee why he was shaking his head so strongly over his experience in the European Parliament? I think it would be quite helpful to clarify that, given the remarks of the noble Lord, Lord Balfe.

[Lord Collins of Highbury (Lab)]

My Lords, this has been an incredibly valuable discussion. The noble and learned Lord, Lord Thomas, is absolutely right. One of the problems we have is that, in the past, good governance was Green Papers, White Papers, a debate about policy and then a considered approach to what sort of legislation would be appropriate. The other thing we are jumping around between is the question: is this about minimum service levels, or is it a power grab by the Government?

The reality is that we have minimum service levels, but they are negotiated locally, taking in many factors. As the noble and learned Lord said, we are talking about devolved matters. It is the responsibility of the Welsh and Scottish Governments to set up and organise their health, education and other services. It is not just about the devolution settlement. I have heard Government Ministers, on the levelling-up agenda, talk about how we want to push responsibility locally. But suddenly that sort of politics goes out of the window when it comes to trade unions. I heard what the noble Lord, Lord Balfe, said about his party, but the simple fact is that this is a power grab by Ministers.

We will no doubt hear the Minister respond that work notices are a matter for employers, and no one is forcing people. Let me ask the question: if the Minister is going to set the minimum service levels but a local authority, a devolved mayor or the Welsh Government do not force through work notices, will that leave those authorities that fail to implement it in the way the Government suggest open to legal action? Will they face a challenge from those who claim they were denied services? We need a very clear answer to that question. The Bill was published without any consultation of the people who will have the responsibility to deal with it and implement it. Even the consultations taking place now are using language that I find difficult to understand, in terms of the responsibilities of devolved authorities and local mayors.

I am trying to avoid being repetitive—I know that will get the Minister’s head nodding—but fundamentally we will keep coming back to certain principles. Let us just focus on these amendments and have some clear answers to questions. If it is down to the devolved Administrations and local mayors to determine something, does it leave them vulnerable to legal challenge?

[Lord Fox (LD)]

The noble Lord might like to note that, as we were sitting, we received an email from the noble Lord, Lord Markham, which partially responds to his question. It would be rather helpful if we could have letters from Ministers with some notice, rather than simultaneous to our arrival in this Committee. It reinforces the uncertainty around legal redress, the point which the noble Lord, Lord Collins, just made.

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

I appreciate the noble Lord drawing that to my attention. I have not had the opportunity to read the email, so maybe I will be jumping back up when the Minister responds and I have been able to read it.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I thank the noble Lord, Lord Fox, and the noble Baroness, Lady Randerson, for their amendments. Amendments 14, 19 and 49 relate to devolved matters, either via devolved Governments or local government. Amendment 14 seeks to require the consent of elected mayors before minimum service levels could be set in an area for which an elected mayor is responsible. The noble Baroness, Lady Noakes, is right to point out that this is unworkable. Consultations have been published on minimum service levels for ambulance, fire and rail services, and we welcome the engagement of elected mayors on those consultations. Similarly, Amendment 19 seeks to require consultation with Scottish and Welsh Ministers before minimum service level regulations are made in Scotland or Wales, with a view to reaching an agreement. Amendment 49 seeks to limit the territorial extent of the Bill to England.

The noble Baroness, Lady Randerson, raised concerns about the impact of this legislation on devolution, and this is an important issue. However, employment rights and duties and industrial relations are reserved in Scotland and Wales. That said, I reassure her and the noble and learned Lord, Lord Thomas of Cwmgiedd, that my noble friend the Minister met both the Welsh and Scottish Governments to discuss the Bill.

The Government have a duty to protect the lives and livelihoods of citizens across the United Kingdom. The disproportionate impacts that strikes can have on the public are no less severe on people in Scotland and Wales or on those living in areas with elected mayors. They have every right to expect the Government to act to ensure that they can continue to access vital public services during strikes.

The Government therefore resist these amendments. However, as I said earlier, nothing in the Bill requires an employer, which might include a devolved Government or an elected mayor, to issue a work notice. That would include the example of Cardiff Airport that the noble Baroness cited.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

I am grateful for that gracious response from the noble Baroness. Whatever her motivation, I agree that service users should be included in that list, not least for the reasons set out earlier by the noble Lord, Lord Allan of Hallam.

[Lord Collins of Highbury (Lab)]

One thing that the noble Baroness could read is the original impact assessment for the transport Bill, which said—and I will come back to this point—that there will be an impact on service users because disputes will be longer and industrial relations will be worse. The problem we have had is that that Bill and this Bill had impact assessments there were red-rated. The noble Baroness should focus on that.

[Baroness Chakrabarti (Lab)]

Indeed. The point is that the noble Baroness opposite and I disagree, perhaps, about what the effect will be on service users and others, but the test is necessity and proportionality, as was set out so well earlier by the noble Lord, Lord Allan of Hallam. Whatever the motivations, it is a good addition to the list, in my view.

As for the noble Baroness’s point that this is will all be voluntary and the legislation will not impose anything on anyone, that really does not hold as a matter of law—not least because, as we discussed earlier, the “may/must” point is really significant; it is not hypothetical. It is hugely significant that, when one is a given a power—whether the Secretary of State is given a power to make regulations or an employer is given a power to issue work notices—they must exercise that power rationally. They cannot ignore that they have that power; they will face litigation. That is compounded in this area because the employers may well be contracted by the Secretary of State. The Secretary of State would then have the purchasing power—the significant contractual power as the buyer of the service at one end—and would also wield regulations with the other hand. It is not completely ingenuous to suggest that this is all just helping the discussion and that there is no element of compulsion in it.

--- Later in debate ---

[Lord Cashman (Lab)]

My Lords, I rise to speak in favour of the amendments listed. I look to the noble Baroness, Lady Noakes, and assure her that I will not, at this point, offer my support to her amendment; I am sure that will give her great comfort. I will not repeat the points I made at Second Reading, but I believe this Bill undermines basic democratic and fundamental rights. I believe it is dangerous. It is barely drafted and badly drafted. I thank my friend the executive dean of Leeds, Professor Johnson, for the advice he has given me on the Bill.

I equally thank the Equality and Human Rights Commission and will refer to its recommendations now. I hasten to add that the commission, in my opinion, has been much muffled and muted during the last 18 months. Let me quote:

“Having carefully considered the issues, we believe the Bill raises several human rights considerations, specifically in relation to Article 4 (Prohibition of Slavery and Forced Labour), Article 11 (Freedom of Assembly and Association) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR) that require careful scrutiny.”


I believe that these amendments provide for that.

To pick at random out of the commission’s substantial documents, paragraph 4 says:

“In the human rights memorandum that accompanied the earlier Transport Strikes (Minimum Service Levels) Bill”—


to which my noble friend Lord Collins referred earlier—

“now superseded by this Bill, the case for the lawfulness of similar provisions was made partly by distinguishing the Bill’s transport-focused clauses from measures affecting other sectors, including health and education. In that document, the Government recognised the importance of existing measures to mitigate the impacts of industrial action in health, education and fire and rescue services. For example, some healthcare sector trade unions already provide ‘life and limb’ cover during strikes, and the Secretary of State has legal powers to give directions to fire and rescue authorities, which could be used in the event of industrial action.”

Paragraph 5 says:

“It is not clear what consideration has been given to these existing measures in the current Bill. We advise that more detail may be needed to articulate a legitimate aim for imposing Minimum Service Levels (MSLs) on each sector impacted by the Bill.”


I now turn to paragraph 11, to which I referred at Second Reading:

“Finally, we are concerned that an employee would lose automatic unfair dismissal protection not only if they fail to comply with a work notice, but also if their trade union has failed to take reasonable steps to ensure compliance: an employee will not know before participating in a strike whether that is the case or not.”


I could go on. For those reasons and many more, I urge noble Lords, if not now then when these amendments come back, to give their full support.

[Lord Collins of Highbury (Lab)]

My Lords, I also welcome the contribution from the noble Baroness, Lady Noakes. We have worked together, and one of the things I have always been impressed with, particularly on the Finance Committee we served on jointly, is her insistence on decisions being clearly evidence based. That is what this series of amendments is seeking, because at the moment the only evidence we have is an impact assessment that was judged to be red-rated by the Regulatory Policy Committee—not fit for purpose. It was published after the MPs in the other place had scrutinised and passed the Bill, so they did not even have an opportunity to see the red-rated impact assessment.

The noble Baroness has raised the important point that industrial action affects the economy and all kinds of things, not just people travelling to work. It has a cost, and it has a cost for a purpose. When I studied industrial relations, many economists tried to make me better understand that strikes brought two sides together because they had costs imposed on them. The problem we face now is that some of the costs, particularly in the rail industry, are hidden. A rail employer does not suffer any cost from industrial action because the Government indemnify it for those costs, so there is no imperative on the employer to reach a settlement. I suspect that is why the public realise who is to blame for the length of these disputes. The public are not as easily fooled as the Government think they are.

Importantly, the impact assessment on the transport strikes Bill said it would have a

“negative impact on industrial relations, which could have detrimental impacts for all parties”

and increase the frequency of disputes, meaning that

“an increased number of strikes could ultimately result in more adverse impacts in the long term”,

particularly on users of the service. Many noble Lords will have seen NHS Providers make the very same point in its briefings to this Committee, saying that it will directly impact good industrial relations and the ability to resolve any disagreements and disputes.

--- Later in debate ---

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

I thank the noble Lord, Lord Collins, for his helpful advice. I will be sure to pass it on to the Prime Minister.

[Lord Collins of Highbury (Lab)]

Ted Heath would have done.

[Lord Callanan (Con)]

He was slightly less successful than the current one.

Each amendment in this group seeks to add additional evidence-gathering or reporting requirements or scrutiny to the regulation-making powers in the Schedule to the Bill. Before addressing them, perhaps the Committee will permit me a moment to reply to the rather general points made by the right reverend Prelate the Bishop of Manchester. I am afraid that I fundamentally disagree with him. Recent strike action has demonstrated the disproportionate impacts strikes can have on the public, presumably including his parishioners. They have been unable to access work and healthcare or attend education classes and are worrying whether an ambulance will be there when they need it. Businesses are also crucially affected by industrial action; 23% of them could not operate fully due to industrial action in the UK in December and 2.4 million strike days were lost between June and December. I am sorry that the right reverend Prelate does not believe his parishioners need protecting from these actions, but this Government certainly do.

Strikes (Minimum Service Levels) Bill

Lord Collins of Highbury Excerpts

Committee stage
Thursday 23rd March 2023 Lords Chamber

[Lord Collins of Highbury (Lab)]

My noble friend Lord Woodley raised the issue of a health and safety rep, who does not necessarily have to be a union rep or even a union member but may well be victimised because of their activity in protecting workers. Will the Minister ensure that is explicitly addressed?

[Lord Callanan (Con)]

I do not accept the word “victimised”. A work notice effectively says that somebody has to fulfil their whole working contract as normal, whereby they come into work and get paid for it. That is not victimisation in any conventional sense of the word.

--- Later in debate ---

Moved by

[Lord Collins of Highbury]

33: The Schedule, page 5, leave out lines 9 to 22
Member’s explanatory statement
This amendment is to probe the level of protection of unions when involved in industrial action.

[Lord Collins of Highbury (Lab)]

My Lords, I suppose I had better start by making clear that I am probing these relevant clauses because I do not think what is set out in the Bill is clear. I also think it is important that we set out where we are on statutory protection for unions. We are certainly probing what could be considered “reasonable”—a word that I find extremely difficult without any further description in the Bill.

--- Later in debate ---

[Lord Callanan (Con)]

My Lords, I am grateful to those who have contributed to the debate.

It should go without saying that, to achieve a minimum service level, employers, employees and trade unions all have a part to play, and the Bill makes clear what those respective roles are. As many Members have quoted, unions are required to take “reasonable steps” to ensure that the union members named in the work notice comply with the notice. If they do not, they will lose protection from legal claims.

In response to the noble Lord, Lord Woodley, I say that there are a range of steps that trade unions could take, and what is considered reasonable can depend, as my noble friend Lady Noakes made clear, on each specific situation. First and foremost, a trade union should not call a union member identified in a work notice as required to work on a particular day out on strike that day. The trade union could also encourage those individual members to comply with the work notice and make it clear in its general communication with workers that, where members are named in a work notice and therefore required to work on a particular day, they should work on that particular strike day.

Before turning to the individual amendments, I will respond to the question from the noble Lord, Lord Fox, about what would happen if a number of the workforce are sick on the day of the strike. As I indicated to the noble Lord from a sedentary position, the responsibility of the unions is to take “reasonable steps”, as it says in the Bill. If union members named in a work notice are off sick, it is not the responsibility of the trade unions to find other members to take their place; it is the responsibility of employers to ensure that enough work notices are issued to fulfil that minimum service level.

Amendments 34 and 34A seek to diminish the responsibility of unions to take reasonable steps to ensure that their members who are named on a work notice actually attend work rather than participating in strike action. These amendments would remove any obligation on the trade unions to notify their members of the need to comply with a work notice and not to take part in the strike, which, in my view, would reduce the likelihood that a minimum service level will be maintained or achieved. Therefore, the Government are unable to accept them.

Amendment 33 goes further and seeks to ensure that unions have no responsibility whatever for ensuring that their members comply if they have been named on a work notice. It also ensures that there are no consequences for failing to meet that responsibility. I submit that that is an attempt to disrupt the balance between the ability to strike and the rights and freedoms of others, and therefore the Government cannot accept the amendment.

If a union member does not cross a picket line when identified on a work notice, this will of course negatively affect the employer’s ability to achieve the minimum service level at all. The picket line is usually a critical place for a union to exercise persuasion over its members, and we have seen some egregious examples of that. However, the Bill and the achievement of minimum service levels would be substantially undermined if the union’s obligations did not extend to picketing, and therefore we cannot accept Amendment 35.

The responsibility of the union to take reasonable steps is a continuing one, because the impact on the public is the same if a minimum service level is not achieved, whether or not that results from picketing activities. Therefore, the Government cannot accept these amendments, which would significantly reduce the responsibilities of trade unions. Our view, which is reflected in the legislation, is that they need to play their part in ensuring that essential services continue during strikes. As always, we encourage unions to act responsibly and to fulfil their statutory duty that will be established by the Bill if it becomes law. I therefore hope that the noble Lord, Lord Collins, will withdraw his amendment.

[Lord Collins of Highbury (Lab)]

The simple fact is that the Minister tries to keep repeating a narrative that the Government are on the side of the public and, somehow, the Opposition are not. Actually, that is not the case, and, as I said before, the public will not be fooled.

I am glad that the noble Lord, Lord Markham is here, because we had a discussion about the six sectors. There was a manifesto commitment on transport, but then that disappeared, especially when an impact assessment said that the law would not work and would prolong disputes, with greater impact on the public, so it is not worth doing. Now, we have had discussion about six sectors, a number of which have very strong voluntary agreements that work. Employers have told us that where people volunteer to do something, against their conscience, which is what we are talking about, it will be more effective. In the health service, NHS Providers is telling us that that is what it wants to do: it wants to ensure that people volunteer and that there are proper cover arrangements. What we are moving to here is compulsion, penalties and dismissal. It will have the complete opposite effect to what the Minister has said.

--- Later in debate ---

Moved by

[Lord Collins of Highbury]

36B: The Schedule, page 5, line 26, at end insert—
“(1A) At least one month before making regulations under section 234B, the Secretary of State must publish indicative minimum service levels for any service that the regulations will provide for.”Member’s explanatory statement
Requires indicative minimum service levels for any service to be set out before regulations can be made for that service.

[Lord Collins of Highbury (Lab)]

This is going to be relatively easy to deal with, because the Minister has already given us an answer on the previous group. Actually, the answer he gave us is the reason I have separated out this amendment—I think it reflects something else that committees of this House have been extremely concerned about, certainly in the two reports that my noble friend Lord Hendy referred to earlier. When our Delegated Powers and Regulatory Reform Committee reports, it reports in a timely way that ensures that when Parliament and this House consider legislative proposals, we are informed. That information is also governed by the Government’s response.

The Bill has gone through the Commons stages with very little scrutiny and lands up here. We have three detailed reports on this piece of legislation, all of them fairly critical, as in paragraph 23 of the Delegated Powers and Regulatory Reform Committee report. There is only one example of what a minimum service level might contain, which is the service in the transport sector, so everything else has been completely ignored. There are no examples; there is nothing we can assess to see how these powers we are being asked to give to Ministers may be used. The Delegated Powers Committee’s response is that if they do not tell us, we should not give them the power. When are the Government going to properly respond? I insist that they respond as quickly as possible, well before any sort of timetabling for Report. It is fundamental to our democracy that the Government respond to the requirements of Parliament. It is outrageous that they have not done so already. I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, this is neither a wrecking amendment nor a probing amendment; it is a most reasonable amendment. Why? Because some of us who have constitutional concerns about skeleton Bills and Henry VIII powers do so because, even with affirmative procedure, Members of Parliament and Members of your Lordships’ House are not able to amend secondary legislation, unlike Bills. The ability to improve the legislation just is not there. If that is going to be the case here, because we cannot persuade Ministers that these matters, if necessary in extremis, should be dealt with in primary legislation, what are we going to do instead?

If there is to be any possibility of improving minimum service level agreements and the regulations that impose them, there needs to be a statutory amount of time on the face of the primary legislation so that parliamentarians, while they will not get the process they get when a Bill goes through Parliament, will know that they will have at least a month to look at what is proposed and then try to speak to Ministers, write to Ministers and raise questions in each House. That, in some small way, would be an attempt to compensate for the fact that this is not primary legislative procedure with the ability to table amendments, divide the House and so on. This seems totally reasonable to me and a constructive amendment in the face of these Henry VIII powers that have caused such concern to the various august committees and the noble and learned Lords who normally sit with the noble Lord, Lord Hogan-Howe—he is a bit lonely at the moment. It is totally reasonable.

I cannot understand what the objection could be to just being clear, even if informally, that there will at least be this amount of time to be able to improve the regulations. I think Hansard will record that the Minister, in answer to me on a previous group—it may have been a slip—said that Parliament can improve the regulations. Actually, it cannot, but by this kind of stipulation it could, at least informally, make its attempt.

--- Later in debate ---

[Lord Callanan (Con)]

I thank noble Lords for their contributions to this debate. To start with the question from the noble Lord, Lord Collins, about the Government’s response to the reports from the Delegated Powers Committee, the Constitution Committee and the Joint Committee on Human Rights, I am happy to confirm that I expect to be able to respond to those reports before Report.

This amendment tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, requires indicative minimum service levels to be set out before regulations can be made for that service. The Government recognise the importance of relevant parties having sight of a minimum service level before it is applied. That is why Secretaries of State must consult on minimum service level regulations and why Parliament will have an opportunity to contribute to the consultation and scrutinise those regulations, which are subject to the affirmative procedure, as I have said before.

The effect of this amendment is superfluous, given that all parties will be able to know the proposed minimum service levels once regulations are laid in the usual way. This approach ensures that the implementation of MSL is not significantly delayed, thereby not extending the disproportionate impact that strikes can have on the public. I am sure that the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, will understand, if not agree, why the Government cannot accept the amendment.

[Lord Collins of Highbury (Lab)]

In light of those comments, I beg leave to withdraw the amendment so that we can move on to the next group, where we will have a much more comprehensive debate.

Amendment 36B withdrawn.

--- Later in debate ---

[The Lord Bishop of Manchester]

My Lords, I support Amendments 37 and 43 in the name of the noble Lord, Lord Fox.

Many noble Lords have already commented on the Bill’s skeletal nature—I will not repeat their comments here. Amendment 43 would insert an invaluable safeguard, removing overreaching Secretary of State powers to amend, repeal or revoke primary legislation through secondary legislation. Liberty writes that, as it stands, Clause 3 is a “broad Henry VIII power”—we have heard that monarch referred to several times today; I fear I may refer to him again in a moment. It is also a prospective power that allows the Government to amend and revoke legislation not yet passed.

The delegated powers memorandum seeks to justify this power as a prudent provision to deal with any necessary consequential amendments identified in the Bill’s preparation. As the noble Lord, Lord Fox, reminded us, this means that the Government are taking this exceptional power either because they are not sure what they want to achieve or because they do not know how to get there. I do not believe either of those to be an adequate justification, and I am delighted to hear that Jacob Rees-Mogg may be of a similar opinion.

I enjoyed the remark of a noble and learned Lord earlier today that this is “Henry VIII on stilts”. It left me wondering whether I should be imagining the young Henry, fit and active, or the monarch in his latter—shall we say rather less athletic?—years. The older Henry would have crashed off his stilts to huge personal injury and embarrassment. I fear that the Bill, if enacted in its present form, without adequate parliamentary scrutiny of the exercise of these Henrician powers, will be an equally damaging and embarrassing moment in our nation’s governance.

Will the Minister please reflect on these probing amendments and come back to this House on Report with something more fit for the role and responsibilities of this kingdom’s Parliament in the reign of Charles III?

[Lord Collins of Highbury (Lab)]

I will talk to our Amendments 42, 44 and 45; I also support Amendments 37 and 43. My noble friend Lord Prentis mentioned the debate we had on the reports from the Secondary Legislation Scrutiny Committee and the Delegated Powers Committee, Democracy Denied? and Government by Diktat. The two chairs of the committees at the time led the debate and reflected opinion across the House. The noble Lord, Lord Blencathra, said that this is a trend: these are not just technical statutory instruments but impinge on people’s fundamental freedoms. The noble Lord, Lord Hodgson, reminded us, and it has been repeated many times, that these are fundamental policy positions that can be debated and considered but not amended or revised. They cannot reflect all the things we have been talking about, particularly consultation.

Strikes (Minimum Service Levels) Bill

Lord Collins of Highbury Excerpts

Report stage
Wednesday 26th April 2023 Lords Chamber

[Baroness Meacher (CB)]

My Lords, very briefly, I support this amendment. It seems to me that we have seen Bill after Bill in which this Government have chosen to bypass Parliament and leave too many decisions to Secretaries of State. Therefore, for me, as a former member of the Delegated Powers and Regulatory Reform Committee, the most important aspect of this amendment is the requirement, following consultation, to present these matters to committees of both Houses of Parliament. I do not want to say any more; the case has been made very clearly. However, I would like it noted that I support this amendment very strongly.

[Lord Collins of Highbury (Lab)]

My Lords, I too will be brief in strongly supporting this amendment. Whatever your Lordships’ views about the state of industrial relations in this country, we should all agree, across this House, that a rushed process which puts power over making laws into the hands of Ministers without proper parliamentary scrutiny and oversight is simply not right. I appeal to all Members of the House to support Amendment 1.

As the noble Lord, Lord Blencathra, said in the debate on his committee’s report,

“when laws are passed without proper parliamentary scrutiny, they cease to be just technical, as they threaten the rights and freedoms of the individual”.—[Official Report, 12/1/23; col. 1532.]

That is absolutely true when it comes to this Bill. There is no clear understanding of the form that minimum service levels are likely to take or of the impact on workplace relations and services to the public.

I draw noble Lords’ attention to the excellent briefing from NHS Providers, which is responsible for managing the NHS and 1.4 million staff. It says that the Bill

“risks damaging relationships in the NHS between trust leaders and their staff, and between trust leaders and local union representatives at a particularly fraught time, without addressing any of the issues underlying current strike action or providing a useful alternative approach to managing service provision during periods of strike”.

--- Later in debate ---

[Lord Balfe (Con)]

My Lords, this amendment really shows what a ludicrous Bill this is. The clause that we are dealing with is unworkable. As noble Lords know, I have to declare an interest as an executive honorary president of the British Airline Pilots’ Association. I have talked in this House before about the fact that this Bill allows the Minister for Transport, our good and noble friend Lady Vere, to identify a pilot and order him, a week before the plane takes off, to fly to Washington. That is ludicrous. If you live in the real world of aviation, you will know that a plane is not cleared for take-off until the pilot certifies that it should take off, something like two hours before it leaves. You have to consider weather and whether the level of staffing is correct—and then the pilot is the captain of the plane, responsible for ensuring that the alcohol levels of the staff are not breached. Unless you let people make a decision, you are just running yourself into trouble.

Aviation is about 70% unionised. Is the employer going to identify some people who are not in the union and tell them to go to work, rather than people who are in the union? You have the same group of people, and some of them are in and some are out. How are you going to decide that, and how will you decide matters such as illness? What happens if someone rings up and says, “I think I’ve got Covid”? Are you going to be able to withdraw their protection from unfair dismissal? Of course not.

This clause, above everything else, demonstrates the weakness and stupidity of the Bill. The idea of naming people in a work notice could come only from the desk of someone who has never had to do it, frankly.

I want to look at Amendment 5. The reason put forward in a note to me for the proposal in the Bill was that the minimum service levels would be far less likely to be achieved as trade unions may attempt to persuade workers not to comply with work notices. That is fairyland. Trade unions spend more of their time and money on our friend the noble Lord, Lord Hendy, and his colleagues in the law than is probably sensible. At every stage, they look at the law and say, “We must not break it”.

In my experience, the executive of a trade union, and particularly the local branches, will spend more time persuading the hotheads not to do stupid things than they will encouraging them to do so. It is, for instance, a regular occurrence that a number of British Airways staff believe that they can take actions that are clearly in contravention of the law. It is the job of the executive to say to them, “You will damage the union”; it is not the job of the executive—it never has been—to say, “Behind the scenes, do you think you could do this?” That is not the way that trade unionism works.

I say that as someone who has been involved in trade unionism, for my sins, for over 60 years. It is 60 years since I first became a branch official. Throughout a lifetime of serving in different trade union branches, executives, and now as president of a TUC union, I have always been impressed with how the workers we represented wanted to get it right. They have often had very good reasons for feeling annoyed with the employers, but the job of the union, as a structure, has been to canalise the dispute in such a way that it is within the law and is a compliant dispute that attempts to achieve the objectives that the workforce is looking for. One reason we have trade unions in this country is to provide a bit of balance.

The Bill is not even sensible. It will not work. I hope that, when it goes down the corridor, our new Prime Minister will look at it and say, “For God’s sake, let’s just bury it”. There are far more important challenges facing Britain today than passing an unworkable Bill to annoy one section of the population—not to mention the 1.5 million trade unionists who voted for the Conservative Party at the last election. They will probably vote for it again because they do not vote according to their union; they vote according to their class interests. Most of my union members vote for the Conservative Party.

Let us be aware that this is not a matter where a Conservative Government have to stand up to the unions—they are standing up to their own supporters. Ordinary members of trade unions have worked hard to help the country become the prosperous country that it is. This sort of legislation is just the sort of damn nonsense that people look at and say, “My God, they just do not understand, do they?” They do not say that the Government are trying to do something. The general reaction to this Bill, I am afraid, among my trade union friends is that the Government do not understand what they are doing. I urge the Minister to send it back down the corridor and ask them to bury it in a nice big box somewhere.

[Lord Collins of Highbury (Lab)]

My Lords, I thought that I had better interject and speak to Amendment 5 in my name and that of the noble Lord, Lord Fox.

I reiterate what my noble friend Lord Woodley said. The Minister has said on every occasion that we have considered the Bill that this is not about banning the right to strike, which is a fundamental right. I have no doubt that the Minister will repeat that when he responds to this debate. We face in this country some of the most onerous processes and procedures in order for people to exercise that right through their trade union. The statutory ballot requirements are pretty rigorous and, as the noble Lord has said previously, they can be challenged in court. Unions are very concerned to make sure that they do not breach the law, that they act within the law and that strikes are lawfully conducted.

Here we have a situation where a clause in this Bill could place trade unions in a position where they would be asked to ensure that the members who vote for industrial action—who go through that rigorous process—do not take part in that action. That is not the responsibility of a trade union. A union could face an injunction or be forced to pay damages if it is deemed not to have taken “reasonable steps”.

The noble and learned Lord, Lord Thomas, talked about the definition of “may”. Well, what is the definition of “reasonable steps”? What situation are we putting trade unions in with this vague requirement that could result in them facing legal action? If a union is deemed not to have followed the legislation, the strike could be regarded as unlawful and the protection for striking workers, such as automatic unfair dismissal protection, could be removed from all striking members, including those not named in the work notices. So, employees will not know before participating in the strike action whether they have protection, and unions do not know what amounts to “reasonable steps”, as no detail has been provided in the Bill. I think that is an unacceptable situation. We should not be passing laws that put individuals and trade unions in that position.

Of course, this is not simply my view. The Joint Committee on Human Rights concluded:

“We find it hard to see how it is compliant with Article 11 ECHR to expose any participant in industrial action to the risk of dismissal simply because a trade union fails to take unspecified ‘reasonable steps’ required in respect of those subject to a work notice. In our view, the Government has not provided sufficient justification for this consequence or explained why the minimum service scheme could not be effective without it”.


I think those are the words—I do not need to say any more. I hope the House will support Amendment 5.

[Lord Fox (LD)]

My Lords, I will speak very briefly to both these amendments, which have my name. There might be an argument that the ends justify the means, but this does not deliver the ends. This false promise does not work. The means we are discussing here will poison industrial relations. The means we are discussing here will make recruitment into public services much harder, because working conditions will be made worse. The means we are talking about here will also remove predictability when we have a workplace dispute, because, as has been noted, people will go off sick and refuse to do overtime, and that will make the job of managing through a strike much harder.

The last group talked about protecting employers from this unwanted Bill. This group talks about protecting workers and unions from this unwanted Bill, and I ask your Lordships to support both these amendments.

--- Later in debate ---

Moved by

[Lord Collins of Highbury]

5: The Schedule, page 5, leave out lines 9 to 22
Member’s explanatory statement
This amendment would remove the section that removes protection from Unions.

[Lord Collins of Highbury (Lab)]

My Lords, the Minister suggested that Amendment 5 undermines the Bill. Actually, the provisions that this amendment addresses undermine the democratic role of trade unions, which is why we have tabled it. This is not about minimum service levels; as we have said previously, these are properly and better addressed voluntarily. If this provision remains, it will simply undermine the role of trade unions. It has to go, and therefore I wish to test the opinion of the House.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

Speaking as a Scotsman and a unionist, I strongly support the point made by the noble and learned Lord, Lord Hope. It seems to me that if one is to maintain the union, it is important to maintain the devolution settlement. This Bill undermines the devolution settlement.

[Lord Collins of Highbury (Lab)]

My Lords, I want to make a few brief points. Of course, the noble and learned Lord is absolutely right that defining and managing service levels is a devolved matter. It is how you manage and define them. So when it comes to defining minimum service levels, who has responsibility? It is not the Government. It is actually going to be the responsibility of the devolved institutions and devolved Governments. Let me say this: this is not about devolving employment rights. Employment rights are in a single market and they are clearly defined. This is about service levels. We had debates in Committee about how to define service levels on non-strike days. The devolved Governments are going to be responsible for that, and that is the democratic accountability. That is why it is really important that we support these amendments.

[Lord Callanan (Con)]

My Lords, Amendments 6 and 7 relate, as has been said, to the devolved Governments. Amendment 6 seeks to remove the power for the Secretary of State to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd Cymru. This amendment was previously tabled in Committee, and no one will be surprised to know that the Government’s position remains unchanged.

As I have previously stated, the powers in Clause 3 can be exercised only to make amendments that are necessary to give effect to the Bill; they are therefore truly consequential. Employment rights and duties and industrial relations are reserved in respect of Scotland and Wales. It is therefore right that the Secretary of State has the power to make consequential amendments to primary legislation made by the Scottish Parliament or Senedd Cymru, if required, to ensure that the new legal framework operates in a coherent way across the whole of Great Britain. As always, the Government will engage with the devolved Governments as appropriate should consequential amendments be required to Acts of the Scottish Parliament or the Senedd Cymru.

Amendment 7, meanwhile, seeks to limit the territorial application of this Act to England. The noble Baroness, Lady Randerson, tabled a similar amendment in Committee, and the Government continue to resist this change for the same reasons that I set out then.

As has been said numerous times in this debate, once regulations for minimum service levels are in force for a specified service, if a trade union gives notice of strike action, it is then the employer’s decision whether to issue a work notice ahead of the strike, specifying the workforce required to achieve the minimum service level for that strike period. If the employer is the Scottish Government or the Welsh Senedd, it is their decision whether or not they use this legislation. Of course, we hope that all employers will want to do so where needed —as was said in relation to the amendments of the noble and learned Lord, Lord Thomas, employers must consider any contractual, public law or other legal duties that they have—but the Bill does not contain a statutory requirement to do so. No one is forcing them to use this legislation.

We will, as we have done throughout this legislation, continue to engage with the devolved Governments as part of the development of minimum service levels in those areas and the consultations that would be required that are informing these decisions. The Government have a duty to protect the lives and livelihoods of citizens across Great Britain. The disproportionate impacts that strikes can have on the public are no less severe in Scotland or Wales, and the people there have every right to expect the Government to act to ensure that they can continue to access vital public services, which they pay for, during strike action.

I hope—again, perhaps without too much optimism—that noble Lords will therefore feel able not to press their amendments.

Strikes (Minimum Service Levels) Bill

Lord Collins of Highbury Excerpts

3rd reading
Tuesday 9th May 2023 Lords Chamber

Moved by

[Lord Collins of Highbury]

1: The Schedule, page 7, leave out lines 13 and 14

[Lord Collins of Highbury (Lab)]

My Lords, I will not detain the House for too long. I am very grateful to the Public Bill Office and the clerks for advising me on these consequential amendments which arise from the amendments carried by the House on Report. I am grateful for these technical amendments to be approved by the House. It does not particularly change my view on the overall impact of the Bill, but I am hopeful that the Government will focus on achieving settlements, particularly in the health service, where we have seen some progress. I do not see that the Bill, even as amended, will improve the situation but I hope noble Lords will consider these technical amendments and send the Bill back as speedily as possible. I beg to move.

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

My Lords, these amendments are intended to tidy the Bill, following the votes to amend the Bill on Report. They intend to remove from the Bill references to Section 234E, which was removed due to the passing of Amendment 5.

By convention, the Government do not oppose these amendments as we have a duty to send to the other place Bills that are internally consistent. However, I make it clear that the Government fully expect these topics to be revisited following the consideration of these amendments in the other place, which would result ultimately in them being reconsidered here also.

[Lord Collins of Highbury (Lab)]

I note the Minister’s comments. I hope that when they return here, we will have the same level of scrutiny, because this is a bad Bill with certain consequences which will not improve industrial relations in this country—in fact, it will make them worse. It will not achieve the objectives the Government set out; it will have the completely opposite effect. Bearing those comments in mind, I welcome the Minister’s commitment to agree to these amendments.

Amendment 1 agreed.

Moved by

[Lord Collins of Highbury]

2: The Schedule, page 8, line 21, leave out “, 234A and [section removed]” and insert “and 234A”

--- Later in debate ---

[Lord Sentamu (CB)]

My Lords, I was not going to speak, but the noble Lord was very gracious in his speech. It is true that the House of Commons, as the elected House, in the end determines and fixes the law. In the light of what the noble and learned Lord, Lord Thomas, has just said, if you legislate in a bad way, the lesson you learn is to not go back to your bad ways by taking out amendments that have actually improved the legislation.

The devolved Governments not being consulted before the Government legislate will harm this United Kingdom, over which King Charles is the Head of State. I beg the other place not to take the amendments out because it is the elected House; I ask it to take them out because it thinks that that would improve the legislation. If it does not think that, please do not make us look like unruly people.

[Lord Collins of Highbury (Lab)]

My Lords, I add my thanks to the Minister for the way he has conducted himself, and I thank others who supported him. I thank the Bill team, which has been forthcoming about what it thinks the Bill means. I also thank my noble friend Lady O’Grady, who was thrown in at the deep end, as it were, having just arrived in this House; she acquitted herself brilliantly and made some forceful arguments. I thank all noble Lords who contributed to the debate, particularly those on the Lib Dem Benches, who played an active role, and those on the Bishops’ Benches, who played a positive role in highlighting the evidence about what the Bill could lead to.

On the point of the noble and learned Lord, Lord Thomas, this is a skeleton Bill, and we do not really know what it means legislatively. The remarks of the Minister’s friend, Jacob Rees-Mogg, sum it up: MPs will have no idea about the practical implications of the implementation of the powers that will be granted, not to the other House but to Ministers. There is no proper scrutiny.

Nevertheless, we have done a very good job and have amended the Bill. I hope that those amendments will be considered positively down the other end, but, as I have said at every stage of the Bill, when Labour returns to government fairly shortly, we will repeal this legislation.

Bill passed and returned to the Commons with amendments.

Strikes (Minimum Service Levels) Bill

Lord Collins of Highbury Excerpts

Consideration of Commons amendments
Thursday 8th June 2023 Lords Chamber

[Lord Balfe (Con)]

My Lords, can I make a simple point? This is nonsense, because all the services are devolved, as has been said. I am not totally in agreement with the noble and learned Lord, Lord Thomas, but these are probably not reserved powers. Even if they were, how on earth can a Secretary of State for Health in Elephant and Castle or wherever he now lives make rules about hospitals in Glasgow, fire engines in Edinburgh or education establishments in Aberdeen? It just will not work. For that reason, I am very dubious about this legislation. It does not apply to Northern Ireland anyway. Putting it into a Bill is silly—that is the only word for it—because we are being asked to pass legislation which manifestly will do no good and will not work, and I am sorry that the Government are pursuing it.

[Lord Collins of Highbury (Lab)]

My Lords, it is a sad fact that this Bill so casually breaches the Sewel convention, which exists to uphold democratic accountability and provide for stable provision of public services. Wherever you live in the United Kingdom, nothing should interfere with those basic considerations. They dictate how services are designed and delivered and who has a say over them, whether that be in the hospital you are rushed to or the school you take your children to. In overriding Parliaments in Wales and Scotland, United Kingdom Ministers are treating those services as incidental or of lesser significance and weakening the say of patients and parents.

This is a problem not just for Wales and Scotland; it is a problem for England and the entire United Kingdom when the Government so regularly choose to sow confusion and division by breaching a convention that exists to help prevent both. We should not be in a position where a former Lord Chief Justice for England and Wales is forced to spell this out in relation to so many Bills. It is a measure of the Government’s consistent course that the noble and learned Lord, Lord Thomas of Cwmgiedd, is put in such a position. I hope that the points he made will be taken on board, because the road that is going to be continued with is very dangerous for the union. That is why it is so important that Ministers listen.

I want to speak also to the other Motions in this group, which I had hoped the noble Lord from the Lib Dem Benches would move because I was intending to quote him. Nevertheless, on Motion B1, on which we are to hear from the noble Lord, across this House there is serious concern that, once again, Parliament is being sidelined. It is a fundamental issue of accountability and democracy. The Regulatory Policy Committee said that the impact assessment for the Bill is “not fit for purpose” and

“makes use of assumptions in the analysis which are not supported by evidence”.

Again, policy comes later and legislation first; it is ridiculous. We should not have that sort of situation, especially as it impinges on fundamental rights, particularly the right which the Minister constantly says he is prepared to protect: the right to strike.

Employers as well as unions share concerns that the provisions are unworkable and have the opposite effect to that claimed by the Government, will damage co-operation and will undermine voluntary agreements that deliver minimum service levels, the very thing that the Bill is meant to address. This is an imposition and simply will not work. The Delegated Powers Committee said that ministerial powers to set minimum service levels through regulations and define what constitutes a relevant service are inappropriate in the absence of convincing explanation by Ministers. Throughout Report, we heard no convincing arguments on this. The fact of the matter is that, when we heard from Ministers responsible for relevant sections of the Bill, they all said that voluntary arrangements are best and that they work. But, when you undermine those voluntary arrangements, you put the public—the thing that you want to try to protect—at risk.

As the noble Lord, Lord Fox, said on Report—I will have to quote his speech from then rather than today—

“This amendment seeks to bolster Parliament’s oversight. It would require a consultation to be carried out and … reviewed by a committee of each House of Parliament”,—[Official Report, 26/4/23; col. 1223.]


prior to regulations being made. This is absolutely essential if we are to see good legislation rather than simply negative narratives. Those consulted would include relevant unions, employers and other interested parties across the United Kingdom. This is vital to ensure consistency. I conclude by saying that I hope the noble Lord, Lord Fox, will seek the support of the whole House.

[Lord Fox (LD)]

My Lords, I was so enjoying the debate on Motion A1 that I failed to stand up and speak to Motion B1 in my name. I apologise to the noble Lord, Lord Collins, for not providing him with sufficient up-to-date quotations, but he seemed to manage. We have spent so much time on the Bill together that we probably know how each other thinks.

We are in familiar territory, and indeed were too with Motion A1, because this is a long-repeated trope of this Government. They seek to override not only the devolved authorities but our own Parliament here. Bill after Bill has measures that take powers that should rightfully be vested in Parliament and lodge them firmly with the Executive, with very little or negligible recourse. This amendment seeks to regain that balance.

We have had similar discussions many times. I will not go over all these, but I will remind the House very briefly why, in this case, it is very important. The centrepiece of this legislation is a system of predetermined minimum service levels which may be used by employers to determine the minimum manning levels in the event of a strike. If a strike is called, specific work orders have to be or may be issued, requiring named individuals to ignore the strike and go to work. If they do not, as the Bill stands, they can be sacked.

The scale of the minimum service level is key. The nearer it is to 100% of normal service, the smaller the number of people who can legitimately and legally strike becomes—to the point that it becomes almost zero, or zero, and strikes are banned. This is not an abstract argument: if you look at certain areas of emergency care or issues such as rail track signalling, it is clear that a very high level of presenteeism will be required to run those services. In effect, those people on that work order will therefore have their right to strike banned. Speaking as a Liberal, I say that this is a libertarian issue that we find very important.

The setting of these minimum services levels is a vital part of how this Bill will operate. As the Minister has said, some non-binding consultation is under way but as things stand, to all intents and purposes the scale of the minimum service levels is the Secretary of State’s decision and theirs alone. We find that unacceptable.

The Commons declined our last amendment on the grounds that there is “adequate consultation”. We think that there is not and would like to ask the Commons to revisit that process. This amendment would require that consultation takes place and is reviewed by a committee of each House of Parliament prior to regulations being made. That consultation would be more formal and set out in some detail compared to the informal and ad hoc nature of the consultation that is going on. As we heard from the noble Lord, Lord Collins, when he was quoting me, those consulted will include the relevant unions, employers and other interested parties and would include an assessment of the impact on the rights of those workers.

The Minister talked about time and how this would wrap up the process into indefinite time. I remind your Lordships that the original Bill from which this Bill is generated started about a year ago. That Bill of course referred to what was in the Conservative Party manifesto, unlike this one, which has been broadened way beyond the scope of what was in the manifesto. The Government have shown themselves very adept at setting up time for such things to be debated, yesterday being an example. I am sure that time is not the issue—“won’t” rather than “can’t” is what we are dealing with here.

In short, we seek through this Motion to regularise the consultation process and give a mandatory role for Parliament that is far more than we see. With most Governments, this might not be controversial but with this one there has been a pattern and it is systematic, so here we seek to reassert the role of parliamentary democracy. My noble friend talked about there being the potential for a constitutional crisis around the treatment of government and the devolved authorities, I think we are already heading in the same direction with the treatment by this Government of our Parliament.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I will say very briefly I have no doubt that the Government do not want to lead to the sacking of workers through this Bill. However, when the Minister seeks to reassure us with the conclusion that it will be left to the discretion of the employer, I say to the Minister that those are dread words for anyone who is an employee of said employer if you are in dispute. As this Bill is about enforcing consequences, nay punishment, I do not care whether the Minister intends that people are sacked, I simply point out that that could be the consequence even against what the Government want. I hope the Government will reconsider this and bear in mind that it is to do with freedom, rather than coercing people: the freedom to go on strike and withdraw your labour, which is something that all sides of this House should support.

[Lord Collins of Highbury (Lab)]

My Lords, I will speak to my Amendment D1 and address some of the issues the Minister mentioned. Of course, when I spoke in the earlier debate, I focused on the fact that, when it comes to minimum service levels during disputes, what works are voluntary agreements—and that is across the world. I repeat that what this Bill does is undermine co-operation and voluntary agreements.

The fact is that this Bill will place trade unions in the unacceptable position of being asked to ensure that members who vote for industrial action do not take part in that action. It is a complete contradiction of their role. My amendment would remove the obligation on the union to take undefined reasonable steps. The Minister referred to the report from the Joint Committee on Human Rights, and I appreciate the Minister attempting to meet me and my noble friend to discuss what “reasonable steps” might mean. Sadly, the two-page government amendment that he gave me placed huge burdens on employers and unions—the complete opposite of what this Government say they want to achieve.

The simple fact, as I mentioned on Report, is that if a union is deemed not to have followed the legislation, it could mean that the strike is regarded as unlawful and that protections such as automatic unfair dismissal protection could be removed from all striking workers, including those not named in the notices. Again, if a union is deemed not to have followed the legislation, the strike could be regarded as unlawful, and that then opens up all kinds of consequences.

--- Later in debate ---

Moved by

[Lord Collins of Highbury]

At end insert “and do propose Amendment 5B as an amendment in lieu and Amendments 5C and 5D as consequential amendments—

5B: Page 5, line 11, leave out from “strike,” to end of line 22 and insert “it is a matter for the union to determine what advice, if any, it gives to members of the union who are identified in the work notice, and any actions or inactions of the union in this regard shall not result in any tortious liability or the loss of any protection to which the union would otherwise be entitled pursuant to section 219.”

Strikes (Minimum Service Levels) Bill

Lord Collins of Highbury Excerpts

Consideration of Commons amendments
Tuesday 4th July 2023 Lords Chamber

Moved by

[Lord Collins of Highbury]

At end insert “and do propose Amendment 2D in lieu—

2D: Page 3, line 31, at end insert—
“(5) Minimum service regulations may only be made if—
(a) the Secretary of State has published draft regulations;
(b) the Secretary of State has consulted the International Labour Organisation and given due consideration to such advice as it has proffered;
(c) the Secretary of State has conducted an impact assessment of the effect of the draft regulations on the services to which the draft regulations relate, addressing, in particular, the effect—
(i) on the general public;
(ii) on the conduct of these services;
(iii) on the conduct and effectiveness of the exercise of the right to strike in those services;
(d) the Secretary of State has conducted a consultation with the representatives of trade unions, employers and any other interested party on the draft regulations and on the matters to be addressed by the impact assessment and, in particular, on whether the draft regulations should or do sufficiently provide, so far as possible under section 234F(2)(a), for protection of workers who do not receive a work notice or fail to comply with it, and for the identification of the “reasonable steps” which a union must not fail to take under section 234E and those which it is reasonable for it not to take;
(e) the Secretary of State has laid before Parliament a report on any advice proffered under paragraph (b) and the consultation under paragraph (d);
(f) the Secretary of State has placed before a Joint Committee of both Houses of Parliament, convened for the purpose of reviewing them, the impact assessment under paragraph (c) and the report under paragraph (e) and the Joint Committee’s review has been published in a report to Parliament.””

[Lord Collins of Highbury (Lab)]

My Lords, I am proposing an unusual but reasonable step in relation to this Bill. As noble Lords have heard in previous debates on the Bill, Labour is committed to repealing what we believe to be a very bad piece of legislation. Employers, unions, the devolved nations and service users have expressed opinions against the Bill. However, my argument today will focus on the consequences of this piece of legislation, which have not, I believe, been thought through or properly addressed either by the Government or in the impact assessments.

The consequence of exercising the human right to withdraw labour is now, as the Minister confirmed, the removal of protection against unfair dismissal. The consequence for a union complying with rigorous balloting requirements for an official dispute is now to lose its protection against action in tort. We sort of knew that this was coming because the Joint Committee on Human Rights concluded that the penalties for employees and unions who do not meet the Bill’s requirements are severe. It stated that they

“amount to a disproportionate interference with Article 11”

rights of the ECHR on assembly and association. Of course, as the committee said, the Minister responded on those human rights by saying that the Government rejected the committee’s findings and recommendations. They felt that this piece of legislation was compliant.

Since noble Lords considered this piece of legislation, last month, the ILO’s Conference Committee on the Application of Standards called on the United Kingdom Government to

“ensure that existing and prospective legislation is in conformity with the Convention”—

that is, Convention No. 87, which governs freedom of association and protection of the right to organise.

--- Later in debate ---

[Lord Callanan (Con)]

My Lords, as I said in my opening remarks, we have had a very similar debate a number of times, so I can keep my response brief. I have responded to these points previously, but I will make one point on the ILO report in response to the noble Lords, Lord Collins, Lord Pannick and Lord Fox.

The ILO did not say that this legislation did not comply with the convention; it simply said that it should and that we should ensure that it does. In my view it does, as our response to the Parliamentary Question rightly said. I have made the point many times in this House that the ILO has been clear over many years that minimum service levels can be appropriate in public services of fundamental public importance. That is why many other countries in Europe and around the world that are signatories to the ILO have had minimum service levels in place for many years. The Liberal Democrats and the noble Lord, Lord Fox, normally urge us to go the way of Europe and follow what EU countries are doing. In this case, we are doing precisely that.

I therefore hope, although without a great deal of optimism, that noble Lords will cede to the wishes of the elected House and agree to the Government’s Motions, which would then bring this Bill’s passage to a close.

[Lord Collins of Highbury (Lab)]

My Lords, I will take the unusual but reasonable step of pressing this, for one good reason. The Minister talks about the ILO not saying that the Bill is non-compliant. Part of the problem is that no one knows what this law means. Trade unions do not know what reasonable steps they need to take to protect the right to strike. We heard the Minister confirm that workers who receive a work notice will lose protection from dismissal.

The Minister talks about the ILO and minimum service levels in Europe. Nobody is against minimum service levels. They are essential, but in every European country they work because they are agreed by voluntary agreement and because people consent. As soon as you remove that consent, you are in trouble. That is why employers are so against what the Government are arguing.

I know that it might feel a bit repetitive, but the ILO report is new and the Commons needs to consider it. I plead with all noble Lords: please support my Motion. I wish to test the opinion of the House.

Strikes (Minimum Service Levels) Bill

Lord Collins of Highbury Excerpts

Consideration of Commons amendments
Thursday 20th July 2023 Lords Chamber

[Lord Hendy (Lab)]

My Lords, in form, this skeleton legislation with its Henry VIII powers defies every legislative principle, as the Delegated Powers and Regulatory Reform Committee, the Secondary Legislation Scrutiny Committee and the Select Committee on the Constitution have reported. As to content, the less said the better. Although the Government’s impact assessment was held by the Regulatory Policy Committee to be not fit for purpose, it contains the revealing analysis that, far from obviating the disruption that strikes inevitably cause, the Bill

“could mean a general increase in tension between unions and employers. This may result in more adverse impacts in the long term, such as an increased frequency of strikes for each dispute”.

No doubt that is part of the reason why employers, as well as trade unions, have opposed the Bill.

This House tried to redeem the Bill with amendments to protect workers from unfair dismissal and unions from damages and injunctions, as required by international law, but the Government’s majority in the other place rejected them. This House, in its latest modest amendment, sought to mitigate the Bill’s excesses by requiring consultation before regulations were made, but even this was rejected by the other place on Monday.

The fact is that the Bill abridges the right to strike, a right established by many international treaties to which the UK adheres. A letter written by the general secretary of the European Trade Union Confederation to the Secretary of State the day before yesterday sums it up. She said:

“It is clear that the Bill introduces provisions which weaken or reduce existing law in relation to the protection of the fundamental right to strike and which do not respect or implement ILO Convention 87”.


The Joint Committee on Human Rights said the same thing. The letter points out the specific respects in which the Bill fails to meet ILO conditions for permissible MSL legislation. Among its list of non-compliances, the letter points to the absence in the Bill of: any requirement for trade union and employer dialogue in the setting of MSLs; any obligation on the employer to negotiate an agreement with the trade union about service levels; and any independent adjudication mechanism in the event of a failure to agree.

Your Lordships’ amendment would have gone a long way to rectify these non-compliances without such remedial action. As ETUC points out, the UK will not only be in breach of ILO Convention 87 and paragraph 4 of Article 6 of the European Social Charter, but it will also violate Articles 387 and 399 of the trade and co-operation agreement. However, the Government have a problem with consultation with the social partners. Just a week ago, the High Court held that the purpose of the statutory obligation to consult before making regulations under the Employment Agencies Act was that:

“Parliament can then proceed on the basis that the case for the measure has been tested with interested parties in the sector and that their views and interests have been taken into consideration in fashioning the draft regulations which are laid before it”.


The Government’s failure to consult was, the court held,

“so unfair as to be unlawful and, indeed, irrational”.

Less than a month ago, the relevant ILO committee told

“the Government to provide information to and facilitate the dialogue between and with the social partners with a view to … improve consultation of the social partners on legislation of relevance to them”.

Of course I accept that the undertaking by the noble Lord to introduce a code of practice imports a duty to consult, but such consultation is apparently limited solely to the issue of reasonable steps. It does not require the social dialogue that compliance with international law does. In truth, as was said by Mick Whitley MP in the other place,

“no number of amendments could ever salvage this Bill”.—[Official Report, Commons, 17/7/23; col. 721.]

That is why the Labour Party is committed to repealing it.

[Lord Collins of Highbury (Lab)]

My Lords, I thank the Minister for his comments. I appreciate his ability to be brief, but sadly I do not think I will be able to be as brief as him on this occasion because there are, as my noble friend Lord Hendy has just raised, a number of issues outstanding.

This House acknowledged, I think from all sides, that this is a skeletal Bill. It is an example of legislating and then determining policy and procedure. It is really the wrong way around. There is not a proper process of consultation, as my noble friend has just outlined. I repeat the intention of a future Labour Government to repeal the Act because it does not have the support of workers’ representatives or employers. It is impracticable and will simply result in not achieving the objectives of the Bill the Government set out, while worsening the situation in industrial relations. Even the Government’s own impact assessments have said it could possibly increase strikes.

The position on the Bill has been one, in this House, of principled objections to the methodology used and the practical application. I stress the importance, when Parliament is starved of the ability to properly scrutinise legislation that impacts on fundamental human rights, as in this case, of the fact that we have a duty in this House to keep reminding Parliament of that situation. My noble friend highlighted that the International Labour Organization’s Conference Committee on the Application of Standards called on the Government to ensure that existing and prospective legislation conforms to the article he mentioned. The Minister has said in the past, “That’s all right because we will ensure that this legislation will conform”. I am not sure, and I do not think employers or union representatives have any confidence, that that will be the case.

What this House asked the Commons to consider was precisely what the ILO is asking the Government to do anyway: to undertake genuine consultation before implementing minimum service regulations. That means that, when regulations are published, they include an impact assessment and there should be genuine consultation, including on the protection for workers named in work notices and the reasonable steps that trade unions need to take to ensure compliance. The consultation on the selected sectors has taken place, which we have not seen the results of. We will not see those results before the Bill is enacted. Again, that is outrageous in my opinion.

On the reasonable steps the noble Lord has referred to, we have, rather late in the day, heard a Minister saying that a new code of practice will be brought forward. This is certainly an improvement on the Government’s previous position that it was for courts to decide what reasonable steps are—so unions would not even know until challenged in the courts what they may be required to do. However, we are told that the code will be subject, using existing powers, to statutory consultation, including consultation with ACAS, and the approval of Parliament. The Minister in the other place said:

“The consultation will give trade unions, employers and any other interested parties an opportunity to contribute to practical guidance on the steps that a union must take”.—[Official Report, Commons, 17/7/23; col. 713.]


What is the timetable for this? I take that Minister’s words as not simply meaning the obligation to consult ACAS without a timeframe. I hope that we will not see a rushed consultation over the August holiday period. If that is the plan, it will make a mockery of that process and people will fully understand the true intent of this Government.

I seek assurance from the Government that there will be a proper timetable. I remind the noble Lord the Minister that, on 23 January the Government announced strong action against unscrupulous employers which use the controversial practice of fire and rehire through a planned statutory code of practice. That announcement followed ACAS guidance to employers a year before. The consultation announced on 23 January ran for a period of 12 weeks, with views sought from not only interested groups but from the public. Parliament has the right to be satisfied that union workers and the public will be given the same consultation rights and period for the statutory code under the Bill as given for the fire and rehire one. We are entitled to know today that this is what the Government will do.

As my noble friend highlighted, last week the High Court said, in relation to the consultation process for the regulations that allowed agency workers to break strikes, that

“this is not a case in which the evidence is that the proposal had obvious and undisputed merit based on cogent evidence, and enjoyed strong support from representative bodies in the sector”.

It could have been talking about the Bill—and no doubt in time it will be. I hope the Minister fully understands the position of these Benches. I hope he also fully understands that the concern I have expressed, and my noble friends have expressed, is not just restricted to this side. All sides of the House fully understand the importance of protecting fundamental freedoms and Parliament having the proper opportunity to scrutinise legislation, which we have not had in the case of the Bill. I will not repeat all the objections made by the committees my noble friend referred to; they are on the record. But I hope the Minister, in his response, will be able to give us a full explanation of what he intends to do in terms of the consultation on the code of practice.

--- Later in debate ---

[Lord Callanan (Con)]

My Lords, I thank all three noble Lords who have contributed to today’s debate. The Government always listen carefully to the views of this House.

In response to the noble Lord, Lord Hendy, I have seen the letter from the European TUC, which I read with interest. I am sure the noble Lord will accept that it is hardly an impartial referee on these matters. It is also fair to say that it had nothing new to say. We have been over all this ground many times before and have provided explanations of the type it has sought.

It is also fair to point out that, in our view, this legislation is compatible with the ILO convention, and I am sure the noble Lord will accept that there are many other ILO states that already have minimum service levels as part of their domestic legislation. We will, of course, ensure that any secondary legislation is also in compliance with all our international obligations.

I can also confirm in response to the noble Lord, Lord Collins, that the Government will launch a consultation on the draft code this summer, following consultation with ACAS. The code will be put to both Houses for approval in line with the procedure set out in Section 204 of the Trade Union and Labour Relations (Consolidation) Act, and we will consult for an appropriate period.

[Lord Collins of Highbury (Lab)]

Can the noble Lord be more explicit? We are just about to go into the Summer Recess. August is a month when many people take holidays. I hope that he will be able to confirm, as with the previous statutory codes, that the public consultation will start in September and run for 12 weeks at least.

[Lord Callanan (Con)]

I am afraid I cannot confirm that for the noble Lord. No final decisions have been taken yet, but it is our intention to get on with this as quickly as possible, so we will consult over the summer. We will leave an adequate period for responses to that consultation and then, as I said, the code will have to be approved by both Houses.

I understand the Opposition’s principled objection to this Bill. Taking on board the point made by the noble Lord, Lord Fox, I suppose all legislation is political. We are a political House at the end of the day. We are all party politicians, so it should not be a great surprise to find that legislation is also political.

We have thoroughly debated this matter now on many different occasions. The House has asked the Commons to think again on a number of occasions; they have done so and have responded. I appreciate that noble Lords opposite do not like the outcome, but it is what it is. In our view, this is a vital piece of legislation that will give the public confidence that, when workers strike—which they are fully entitled to do—lives and livelihoods are not put at undue risk.

I hope the House, despite the reservations of noble Lords opposite, will now let this legislation pass to Royal Assent.