Strikes (Minimum Service Levels) Bill

Lord Fox Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

[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.

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Moved by

[Lord Fox]

2: The Schedule, page 3, line 22, at end insert “under section 226(2D) of the Trade Union and Labour Relations (Consolidation) Act 1992”
Member’s explanatory statement
This amendment seeks to align the meaning of “relevant services” with the definition of “important public services” in existing legislation.

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[Lord Fox]

My Lords, I beg to move Amendment 2 on behalf of my noble friend Lady Randerson, who is delayed on official business. After the preliminaries, I hope that we can start to get a little more specific. I would characterise Amendment 2 as a tidying-up exercise which I am sure that the Government will be happy to accept.

As we know, the Bill establishes a legal mechanism to implement minimum service levels when there may be strikes. It does so by amending the 1992 Bill referred to in this amendment, so that minimum service levels are one of the requirements before trade union action is protected from liability in tort.

At Second Reading, my noble friend Lady Randerson queried the list of public services on the grounds that they were vague and that some of them were provided by the private sector—for example, transport—and paid for by consumers, in contrast with schools and the NHS, which are provided by government money and free for the public to use. The Minister responded that the list was based on the Trade Union Act 2016. Page 3, line 22, leaves the definition of relevant services entirely in the hands of the Secretary of State—“Relevant to whom?”, one might question. This amendment seeks to align the meaning of “relevant services” with the definition of “important public services” in existing legislation and attempts to add precision by referring to that piece of well-established legislation, which comes with legal precedents and some understanding.

I suggest, particularly to this side of the House, that your Lordships would welcome anything which limits the amount of interpretative power that is left with Secretaries of State. Parliament should broadly welcome a tiny bit of specificity in the sea of uncertainty that this Bill creates.

I turn to Amendments 5, 11 and 12 in this group, and apologise for speaking before those who have tabled those amendments. These are the first in a series of amendments tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, in a strategy to remove all the services currently named in the Schedule from the Bill. In essence, this is an opportunity to speak about each of these groups separately to probe the Government’s view on how these sections will be viewed. While several groups have been separated out, this group includes three types of workers, as specified in the legislation.

To establish a frame of reference, it is worth reminding ourselves that, as the Library has helpfully noted, the Trade Union and Labour Relations (Consolidation) Act 1992 made it an offence to take industrial action in the knowledge or belief that human life will be endangered or serious bodily injury caused. As a result, we have seen several unions, particularly those represented in the NHS workforce, agree to provide life and limb cover during strikes. No doubt this will come up in later groups. There is no fixed definition of what this entails in practice, but recent examples have included negotiations to ensure that critical services could still run during the recent strike by paramedics and ambulance service workers. We will hear more of this when we debate the third group.

Under the provisions of the Civil Contingencies Act 2004, the Government also have general emergency powers that they can use when strikes seriously threaten people’s welfare. In such cases, a Minister may make regulations to protect or restore facilities for transport or health, for example, or to protect human life, health or safety. One of the preconditions for the exercise of this power is that an emergency has occurred. An emergency is defined as

“an event or situation which threatens serious damage to human welfare in a place in the United Kingdom, … the environment of a place in the United Kingdom, or … war, or terrorism, which threatens serious damage to the security of the United Kingdom”.

Amendment 5 seeks to exclude the fire and rescue service from the Bill. I have other things to say about the fire service in a later group, so I will refrain from speaking at length about it here. However, I ask your Lordships to remember that point about emergencies, because it will be very salient when we talk about fire and rescue services later.

Amendment 11 would remove

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

from the Bill. There has been no strike action in the nuclear decommissioning and waste management sector, and minimum safe staffing level agreements in the event of industrial action are in place in significant parts of the sector. The presence of this group in the Bill is a provocation rather than anything else.

Finally, Amendment 12 seeks to remove border security from the Bill. There are indeed issues with this service, and members of the Public and Commercial Services Union took strike action at various UK airports and seaports in December 2022. Further action has been announced and may occur later this year but, at a time when the Government are spending so much political capital on border controls, it seems careless to threaten the actual officers and employees that we have in this sector with the sack. The idea that we will improve our borders by firing the workforce we already have beggars belief.

I suspect that this will be a red rag to the ministerial bull but, as the JCHR puts it:

“Far from bringing the UK in line with other European countries, as the Government have argued, the Bill represents a significant departure from their practices where pay and minimum service levels are typically decided through collective negotiations and agreement”,


rather than being imposed,

“with disputes settled between trade unions and employers. Instead, the Bill makes no reference to collective bargaining nor does it subject minimum service levels to independent arbitration should it be necessary.”

This is the first of the groups on which we will have the discussions that focus on those issues.

[Lord Hogan-Howe (CB)]

My Lords, I apologise, as I was present but did not speak at Second Reading. Given that these amendments are around the list of relevant services and intend to reduce the list of affected services, I was surprised that policing was not included in the list. There is no definition of relevant services in the Act although, as the noble Lord, Lord Fox, said, emergency services are a clear criteria that has been applied. Given how policing has developed over the last few years, the decision about whether you have this Bill is, as the noble Lord, Lord Whitty said, a very political one. That is not something that I want to take a position on. My point is only that if you are to have a list, is it a comprehensive list and can this list be improved?

Over the past 20 or 30 years, policing has been more civilianised. Police officers have been removed from tasks for which they did not need powers, and more police staff—who were called civilians—have been employed because they did not need policing skills or powers and, frankly, they were cheaper. This has been a big push to make sure that the police get more efficient, and I support it generally. It is also true that the trade unions have had voluntary agreements to maintain good services throughout any industrial action, of which there were quite a few instances during my time in policing. Those systems have held, but the Bill addresses where those voluntary agreements do not survive. Therefore, I want to ensure that policing has been considered properly.

The ratio of civilian staff to police officers is about 3:1 around the country; for every three police officers there is one member of support staff. It is slightly different in the Met for operational reasons. The two areas where this ought to be considered seriously are forensic science provision and call handling. Nearly 100% of those who provide forensic science services are police staff, doing an excellent job. It is vital that you collect forensic evidence as soon as possible after the event. It is usually known as the golden hour; any forensic evidence will deteriorate. If you must restrict the number of scenes that you attend or the time that it takes to attend, it will have a significant impact, particularly for serious crime. This is probably swinging the lamp, but I would like to see the police investigate properly more volume crime by going to the scene and seeing whether there is any forensic evidence. We hear of too many instances where sadly that is not the case. That is what should happen. Clearly, forensic science is vital to that. I am afraid that there is no way that police officers can easily step into that field. Even if you could give them the skills, you cannot give them the experience. Just having the skills is not sufficient to make sure that you look in all the right places and in the right way.

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[Lord Callanan (Con)]

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

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

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

[Lord Fox (LD)]

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

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

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

Amendment 2 withdrawn.