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.