Strikes (Minimum Service Levels) Bill

Lord Fox Excerpts

Committee stage
Thursday 23rd March 2023 Lords Chamber

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

My Lords, I will speak to Amendment 32B in my name and that of my noble friend Lord Collins, and to support my noble friend Lord Hendy’s amendments too. Amendment 32B is all about ensuring that regulations made as a result of the Bill’s provisions do not conflict with protections in the EU-UK Trade and Cooperation Agreement. There is a real concern about this; we have already heard several times that the impact assessment received a red rating from the RPC. Looking at that impact assessment, there is a question about whether the Bill would have an impact on trade and investment, and the answer given by the Government is no. That concerns many of us, as we know that the EU-UK TCA is our most important trade agreement with our closest trading partner.

I declare my interests in that, when the TCA was being negotiated, I was the general secretary of the TUC and a member of the steering committee of the European TUC. We had some very simple priorities on jobs, protecting workers’ rights and protecting the Good Friday agreement, so we were very keen to secure what we called a level-playing-field clause in that trading agreement to ensure that workers’ rights, conditions and jobs could not be undercut. That was really important to us; we worked really hard on it in the four years it took to secure the agreement. I met Monsieur Barnier a number of times, as well as David Frost—now the noble Lord, Lord Frost—and parliamentarians from the EU and the UK. Together, we campaigned for that clause to prevent unfair competition on the back of lowering labour standards. That was not an academic concern; there were real concerns that, in some quarters, the Brexit dividend was discussed as being one that would involve worsening workers’ rights, especially in respect of the working time directive, which put safe limits on working hours, paid holidays, rest breaks and equal treatment for agency and temporary workers.

At that time, we were also very conscious that several members of the Cabinet were co-authors of that now-infamous pamphlet Britannia Unchained, which specifically described opportunities to worsen workers’ rights. That level-playing-field clause is vital: it provides for non-regression and for no weakening of what are described by the ILO as “fundamental rights at work”, including

“health and safety standards … fair working conditions … information and consultation rights”

and protections for the “restructuring of undertakings”. If the UK breaks that commitment, it would have an impact on trade and investment.

The EU can impose temporary remedies, including trade sanctions. Of course—I hope the Minister is aware—the ETUC, of which the TUC remains a member, can raise a complaint directly with the European Commission. That is why the recent European Commission report saying that it was monitoring very closely developments in respect of fundamental workers’ rights, including the right to withdraw labour, should be taken so seriously. It is not covered in the impact assessment, as I have said, but I think that the Minister at one point said—correct me if I am wrong—that he would consider looking at whether that impact assessment needed to be revised. If he is willing to consider that, this is a key area that is vital for trade, investment and jobs, and it would be worth looking at it again. I very much hope that he will consider this amendment in that light.

[Lord Fox (LD)]

My Lords, I fully expect the Minister to stand up and tell us that none of these amendments, which have been put so well by noble Lords, is necessary. I expect him to say that there is no possibility of the Bill, once it becomes an Act, breaking or impairing our relationship with the international organisations that noble Lords have mentioned. I wonder how he will be able to say that, given the nature of the Bill.

We come back to its skeletal nature and the answer which nobody seems to know to the question “What is a minimum service level?” Until we know, we do not know whether the Bill breaks any agreements that we have with organisations in this country or around the world. I refer your Lordships to our previous debate in Committee, in which we discussed correspondence with the noble Lord, Lord Sharpe, in which he represented the issues around the fire and rescue services. I remind noble Lords that, after I prompted him on why the consultation had raised the issue of the Grenfell Tower fire and the Manchester Arena bombing, the Minister—the noble Lord, Lord Callanan—said that one thing the consultation sought to probe was that the minimum service level would include the ability to cope with issues on that scale. He did not disagree with me when I came back and said that that implied that 100% of the fire and rescue services in an area would need to have been named in the work order under a minimum service level. In effect, that would ban striking.

In the event of such a minimum service level, that calls into question our relationships with the ILO, the EU under the TCA and others, because it is a de facto ban on striking. It may or may not upset those relationships, but I want the Minister to be able to say what minimum service level is being modelled when he tells us that we do not need to worry.

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

My Lords, I sometimes wonder when I listen to the noble Lord, Lord Fox, whether I need to bother replying to these debates, because he has written my speeches before I get up. For the benefit of the House, I will go through this anyway.

Amendments 18A, 18B, 32B and 36C all relate to the UK’s international obligations. Before I deal with the amendments in detail, it is worth reiterating, as I have previously and as we debated last time round with the noble Baroness, Lady Chakrabarti, that the Government firmly believe that the Bill is compatible with our convention rights and complies with all international conventions that the UK is signed up to. I signed a statement to that effect.

Amendment 18A in the name of the noble Lord, Lord Hendy, looks to ensure that the Bill does not prevent people from taking strike action and cannot be used to create an offence. I oppose this amendment because its effect would be to prevent any minimum service levels from being implemented at all. He will understand my reservations, given how the Bill is drafted in respect of the operation of work notices and where an employee would lose their automatic protection from unfair dismissal for industrial action if they participated in a strike while being named on a work notice. To be clear, our Bill does not prohibit strikes or other industrial action, but it does enable employers to continue to deliver a minimum service level to their users and stakeholders during and notwithstanding that action.

The Bill is about balancing the ability to strike with the rights and freedoms of others. Preventing minimum service levels being implemented does not strike a balance; it would merely maintain the current disproportionate impacts that strikes can have on the public—although I expect that that is a cause of legitimate disagreement between us.

Amendment 18B would ensure that the regulations did not compromise our obligations under the trade and co-operation agreement. However, given the reiteration I made earlier, we believe that this amendment is duplicative and unnecessary. The Government remain committed to our international obligation and respect the process of the respective governing bodies in providing any rulings that are required concerning compliance. I recognise that the noble Lord, Lord Hendy, has a desire for relevant international conventions and treaties, and their associated governing bodies, to have a greater role in respect to minimum service levels in Great Britain. But my argument here is that incorporating decisions by supervisory committees into domestic primary legislation, as this amendment seeks to do, goes way too far.

Amendment 32B, tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, seeks similarly to prevent minimum service regulations being made where they could be said to be within scope of the trade and co-operation agreement and other international obligations. As I stated at the outset, the Government firmly believe that we are entitled to bring forward this legislation—many other European countries already have similar legislation—which I remain satisfied is compatible with all the international conventions the UK is signed up to. The noble Baroness will, of course, be aware that there are existing mechanisms for monitoring adherence to the trade and co-operation agreement—if indeed there are concerns from EU member states or the European Commission, although I do not believe there will be.

In any case, I am surprised if anybody thinks that ensuring that the public are able to access some level of service in key sectors, including emergency services, during strike action goes to the heart of the TCA, not least because many EU member states already have minimum service level arrangements in place. Indeed, in some of the services we have mentioned, some member states ban strike action completely in those areas. As drafted—and perhaps not intentionally—this amendment would prevent minimum service levels regulations being made at all, which, given that is the purpose of the Bill, we clearly cannot accept.

Finally, on Amendment 36C from the noble Lord, Lord Hendy, and to respond to the points the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Woodley, made, as I have stated previously, the Government firmly believe that the Bill is compliant with convention rights and international conventions. The Bill also enables regulations to be made in a way that is compliant with the convention rights, and on making those regulations, Secretaries of State will need to carefully consider the relevant articles of the ECHR, alongside international conventions, if they choose to suggest minimum service regulations to Parliament. So they will also have to make similar statements.

I highlight that this amendment seeks to restrict minimum service levels so that they can be made only where they are necessary to provide protection for the life, personal safety or health of the whole or part of the population. While the protection of life and health are indeed important aims of minimum service levels in areas such as healthcare—

--- Later in debate ---

Moved by

[Lord Fox]

21: The Schedule, page 3, line 34, after “may” insert “if all options to avert a strike have been exhausted”
Member’s explanatory statement
This amendment seeks to ensure that work notices are only issued where all options to avert a strike are exhausted.

[Lord Fox (LD)]

My Lords, this is a slight change of gear from where we just were. This is a probing amendment, and it uses the idea that work notices can be used only after all other avenues have been exhausted. It returns a little to the thought experiment I was trying to have, which is the applying of the Bill, or the Bill if enacted, to what we have witnessed in the Government’s management or mismanagement of the public sector strikes that we have just been going through.

No matter what the strike and no matter which the sector, disputes are settled only when there is negotiation. The Government seem to have taken a long time to understand this with the disputes that we have just come through. The rail strike has been going on since June, and the nurses’ strike started in the autumn, but only in the last few weeks have these strikes begun to end, thanks to negotiation. Why did it take so long? Why were so many operations delayed? Why were so many people’s lives, as the noble Baroness, Lady Noakes, pointed out, disrupted by service delays in, for example, the train services?

Strikes are an extreme action for all workforces—workforces do not willingly go in for them—and that is certainly true in the health service. We have to remember that in the 106-year history of the Royal College of Nursing, this is, as far as I know, the first time that nurses have balloted and decided to strike. This is in a sense a very hard decision for those employees. I wish to probe the Minister in that context. Had these measures been available—had a minimum service level for the health service or the train services been in place—when and how would they have been deployed? Indeed, would they have been used differently in the two different services, one being essentially an emergency service and the other a transport service?

There has been no clarity on how these minimum service levels could and will be used. The noble Baroness, Lady Bloomfield, and I think the Minister, the noble Lord, Lord Callanan, himself, have said that they would be a matter of last resort. However, negotiating is in fact the last resort that brings people to the table and ends strikes. Where does the minimum service level fit in the pantheon of industrial relations here? That is what this amendment seeks to probe.

What we saw with the strikes that have been going on is that the decision to negotiate can only have been a political decision. The launch of the Bill was associated with that political decision and designed to shift the blame or the balance of blame to other sources. The only reason we saw movement is because in the end the Government decided that they had to negotiate with the health unions and started to gradually lift the blockers that they had been using on the train employers in order to move things forward. This is the evidence of how we see the Government operate. They are the ones who brought forward this measure, so how does this measure fit into that sort of behaviour? I beg to move.

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

My Lords, it is worth reminding ourselves why it is necessary to scrutinise this Bill in such detail. The RPC’s latest Independent Verification Body Report confirms that, since 2021, there has been an alarming increase in the number of impact assessments that have been red rated—not fit for purpose—and, of course, this Bill is one of them. There were no red ratings between 2016 and 2021; since 2021, there have been eight.

Turning to the amendments, which I am very pleased to support, one of the other fundamental flaws of the Bill is that it takes a provocative, one-sided position on industrial relations. Its partisan approach fundamentally offends people’s sense of fair play. The public are all too aware how real-terms cuts in pay and underfunding of public services have led to a crisis in staffing levels and service backlogs. Strikes are merely a symptom of worker discontent and, as all the polls show, that discontent is often supported and shared by service users.

As many noble Lords have observed, workers never take the decision to vote for strike action lightly and unions always want a negotiated settlement, but sometimes it seems that the only way some employers understand the true value of labour is when that labour is withdrawn. The task of government should be to help prevent disputes, or at least to help resolve them when they happen, not to throw fuel on the fire, but this Bill is based on the premise that strikes are the fault of workers and unions, as if they were never caused by the failure of employers to listen, compromise or negotiate, by years of government underfunding and cuts, or by the frustration that arises when the Government take so long to put more money on the table when, had they acted earlier, the dispute could have been settled months before without any need for a strike.

The Bill imposes yet more draconian requirements on unions, but no commensurate obligations on employers or government. Ultimately, it gives the Secretary of State the whip hand to weaken workers’ bargaining power and attempt to render a strike meaningless.

The partisan stance of the Bill is a fundamental flaw, but the naming of individual workers in work notices is the provision that many find most shocking. Why is it necessary for the Secretary of State to require that work notices list the names of individual workers who will be required to work, rather than just numbers—as I am aware that a number of employers have suggested? In response to a Written Question I asked, the noble Lord, Lord Johnson, said that the Bill provides:

“enforcement mechanisms to maximise the assurance that Minimum Service Levels (MSLs) will be achieved on strike days”—

in other words, naming of individual workers is necessary in order that they can be threatened with the sack.

How will the Secretary of State ascertain whether that list of individual names has been chosen without bias, discrimination or a vindictive attempt to target trade union activists? What will be the process and additional Civil Service resources needed to do that effectively? I genuinely do not know. Can the Secretary of State add or remove individual names, should a legitimate complaint be made? In the 2019 Queen’s Speech, when minimum service legislation for transport only was first planned, the Government pledged to ensure that

“sanctions are not directed at individual workers.”

What changed?

At Second Reading, the Minister asserted:

“This legislation is not about sacking workers”—[Official Report, 21/2/23; col. 1563.]


but of course it is precisely about sacking workers. The legislation expressly provides for the power that workers—nurses, firefighters or teachers—who disobey a notice to work during a strike for minimum service levels, perhaps unilaterally imposed by an employer and sanctioned by the Secretary of State, can be sacked. Crossing fingers and hoping that it will never happen is no comfort to those workers whose jobs are on the line. Key workers who kept Britain running during the pandemic and who were lauded as heroes now look set to become martyrs. Why is that, when emergency cover, where genuinely needed, is already arranged through mature agreement rather than diktat?

It has been so difficult to secure answers to many of the questions raised in this Committee, but nevertheless I will repeat another one. If a named worker calls in sick on the strike day that they have been notified to work, can they be sacked too—yes or no?

--- Later in debate ---

[Lord Callanan (Con)]

Let me outline the procedure for the benefit of the noble Baroness. The work notice will not be a public document. The Bill makes it clear that current data protection legislation applies, while allowing the employer to provide the work notice to a trade union so that the Bill can be effective. Under the Bill, trade unions are required to take reasonable steps to ensure that their members who are identified in the work notice comply with that work notice. The trade union therefore of course needs to see the work notice and to know which union members may be named, in order to enable it to take those reasonable steps. Unions will otherwise be bound by data protection law in the usual way. Additionally, while those named on a work notice will be notified about that regarding themselves only, they will not be issued the work notice itself. Naming individuals to work in advance of the strike day helps to provide clarity to the workers, to unions and to employers regarding arrangements for that working day as well as the strike.

If the Committee will now permit me to move on and answer the question posed by the noble Baroness, Lady O’Grady, that may provide some clarity on the Government’s thinking in this respect. The first question the noble Baroness asked was whether Secretaries of State have a say in who is identified in a work notice. Fundamentally, the work notice is a matter for the employer, so there is no way that Secretaries of State can influence who is identified on a work notice.

Secondly, the noble Baroness asked whether a worker would be in breach of a work notice if they were sick on the relevant strike day. Workers should of course be supported if they are unwell and cannot work, and it remains the case that if a worker is too unwell to work, they are not obliged to work under a work notice. I hope that provides the clarity the Committee is seeking on this point, and I therefore hope that the noble Lord can withdraw his amendment.

[Lord Fox (LD)]

My Lords, this debate has revealed—or rather, not revealed—more than I expected. I am grateful to the Minister for imaginatively making things up as he goes along, which is what this seems to be. We have a Bill in which none of the details is included, and we are relying on the Minister to flesh out from the Dispatch Box how the Bill will work. [Interruption.] I am not talking about what the Bill is, but how it will work.

At least two misapprehensions are driving that interpretation of how the Bill will work—not what it says in law, but what it will do. The first is that the nature of the service sectors the Bill has identified is such that they are politicised. The Minister’s description of the interplay between employer and employee is an unrestrained free-market description, but we know—and this is why I was talking in the last group about using the current dispute as a model—that this is not a pure-play employee/employer relationship. There are three parties in this dispute, and the third party is the Government. By experience, behind the scenes and sometimes in front of the scenes, the Government have been part of the process of progression of these disputes, and in the end, they have been the arbiter of whether or not they were settled. So the Minister’s description of the nature of the dispute in which these minimum service levels and work orders would be used is an inaccurate model for us to consider.

The Minister speaks of the unions and the workforce as if they are two separate entities. We have to understand what the Minister thinks a union is. In large part, the union is the workforce, so keeping the work order secret from the workers by giving it to the union is an interesting concept.

The second misapprehension is that the Minister is expecting the union to oversee the work order, which is a list of names. We know from the Bill, because it specifically says so, that the names on that list could and should be either union members or non-union members. How does the union deal with the non-union members? Is it fair for the non-union members to have their names on the union’s list? These are the sort of practical details we do not have to hand because we do not have a description of work orders and minimum service levels. That is the problem the Minister is having to deal with and is working very hard to do so.

I will look very hard at Hansard because I find it very difficult to understand how the Minister sees the unions and the workforce operating independently in a workplace. Leaving that to one side, I beg leave to withdraw Amendment 21.

Amendment 21 withdrawn.

--- Later in debate ---

[Lord Woodley (Lab)]

My Lords, I support the amendments in this group, but the contribution by my noble friend Lady O’Grady is a heck of an act to follow. I should like to talk specifically on Amendments 25 to 28, which deal with the serious issue of targeting specific workers, especially, I say to the Minister, trade union activists. On reflection, I could have raised this in the debate on Amendment 21, but it is appropriate to do it here.

These amendments in the name of my noble friends Lord Collins and Lady O’Grady contain the issue of work notices and the potential for bad bosses to target, humiliate and victimise trade union activists—as has been raised by my noble friends Lord Monks, Lord Hendy and Lord Blunkett. Unfortunately, history is full of examples where bad bosses, given the opportunity, victimise workers in struggle. I say this seriously. I am talking about bad bosses. I have met many good bosses in my lifetime.

Let us go back 30 years, when the major players in the construction industry blacklisted hundreds of activists, humiliating them by depriving them of making a living and denying that they were ever doing so—and there are many other examples that I could give. In the Bill, we have notices issued to break a strike. Is the Minister really telling me that the bosses will not target activists, shop stewards, branch officials, conveners and even health and safety reps? Let nobody say that this will not happen; it will, and there is absolutely no protection in the Bill for trade union activists.

It is all very well for the Minister to say that an employer cannot use union membership as the basis for choosing which workers are compelled to break their strikes—although there seem to be no sanctions whatever if they choose to ignore this—but there is nothing to stop them choosing union activists, and experience tells us that they will. Strike leaders will obviously be at the top of the bosses’ hit lists, but nobody is safe from being forced to make the agonising choice between betraying your trade union principles of solidarity and standing together as workers, or potentially losing your job.

Let us take health and safety nominated reps. They do a great job for workplaces but, as my experience tells me, they can be somewhat pedantic, both to companies and, on occasions, to trade unions. They are not even protected and are therefore open to discrimination if they are told to cross a picket line that other workers have voted for. Their independence will be compromised, and this will not help companies or businesses going forward.

The disgraceful thing in the Bill is that it gives employers the right to list trade union members who have already jumped through hoops to vote for a strike and will now be forced to betray their colleagues and their own principles. If they do not, they can also be fired. Surely that is unacceptable in 21st-century Britain. The Joint Committee on Human Rights certainly thinks so: in its hard-hitting report, it suggests an amendment very similar to Amendment 27. The amendments here go further and offer broader and vital protection for trade union activists in particular, and I urge Members to support them.

I conclude with a very simple question for the Minister: is this legislation intended to be used by bosses to target, humiliate and even victimise strike leaders and other trade union activists? If not, why is there nothing in the Bill preventing this from happening? We need to know, and we need to know now.

[Lord Fox (LD)]

I will speak very briefly to this group of amendments; I will make no attempt to emulate the speeches from either the noble Lord, Lord Woodley, or the noble Baroness, Lady O’Grady, who have great experience in the union movement.

In the Bill, there is a specific requirement for the unions “to take reasonable steps” to implement work orders. On these Benches, there is still no understanding of what “reasonable steps” actually means and what legal jeopardy unions would be in if they did, or did not do, particular activities. However, I characterise this collection of amendments as causing the employers to take reasonable steps not to victimise members of the union as a result of this legislation. Therefore, it adds a mirror to the reasonable steps that the unions have to observe, so that the employers should similarly observe the same steps—and I support the spirit in which the amendments have been delivered.

The noble Baroness, Lady O’Grady, mentioned private sector deliverers. Having read the letter from the noble Lord, Lord Markham, my reading is that he rules providers such as Amazon out of the remit of this legislation. It would be helpful if the Minister could confirm whether my interpretation is correct. I credit the noble Lord, Lord Markham, with coming to your Lordships’ House and participating in Committee. We had no such benefit of a Transport Minister, and we still do not know the position of private sector suppliers of services in the transport industry. While we seem to have an explicit ruling out of private sector deliverers in the health service, we have no such ruling out in the transport sector. Will the Minister, in responding to or confirming my interpretation of the letter from the noble Lord, Lord Markham, also tell us whether the similar and other deliverers of private sector services, which are crucial to the railway industry, will be included in the remit of the Bill, or, as in the health service, not included?

[Lord Callanan (Con)]

My Lords, I thank all noble Lords who have participated in this short debate: the noble Lords, Lord Collins, Lord Hendy, Lord Woodley and Lord Fox, and the noble Baroness, Lady O’Grady.

Amendments 22 and 24 to 31 all relate to placing additional requirements on the process of issuing our famous work notice. It is the view of the Government that the current requirements in the Bill strike the right balance between the views and perspectives of employers and unions to enable a reasonable and fair work notice to be issued. The Bill explicitly requires that employers must consult a relevant trade union, and have regard to their views, before issuing a work notice. Additionally, work notices must not include more persons than are reasonably necessary to meet the minimum service level and employers, as I said earlier, must not have regard to whether a worker is or is not a member of a trade union when producing that work notice.

I respond, first, to the point made by the noble Baroness, Lady O’Grady, who waxed lyrical about Amazon warehouses. While it is possible for a private business to be in the scope of minimum service level regulations, if they provide a relevant service as specified within the regulations, I am happy to reassure the noble Baroness that the Government have no plans or intentions to apply minimum service levels to Amazon.

Amendment 22 tabled by the noble Lords, Lord Collins and Lord Hendy, and the noble Baroness, Lady O’Grady, would limit the issuing of work notices to recognised trade unions only. However, it is of course possible that strikes can be called by recognised and unrecognised trade unions, which can lead to disproportionate impacts on the public. It is therefore our view that MSLs must be able to be applied where a union, recognised or not, provides a strike notice to an employer.

I move on to Amendments 24 to 31 from the noble Lord, Lord Collins, and noble Baroness, Lady O’Grady. Amendment 24 looks to ensure that employers cannot name more persons than necessary to secure the minimum level of service. However, it is already recognised that employers should not roster more people than are needed to achieve a minimum service level, so that some workers can continue to take strike action if they wish to—that is the whole principle of the Bill. That is why the Bill already requires employers not to identify more persons than are reasonably necessary. This enables the employer some limited flexibility in providing for contingency to respond on the day to any operational incidents, sickness or other types of absence. In our view, the existing approach strikes the right balance and provides sufficient safeguards for workers. To go further would limit or eliminate an employer’s flexibility, which could then mean that minimum service levels—the whole point of the legislation—would not be achieved.

Amendments 25 and 26 both look to ensure that each individual is able to go on strike for at least part of the period of the strike, notwithstanding any work notice. The Government resist these amendments for three reasons. First, the number of days on a strike notice could be substantial across both short and long periods for which the union has a mandate to strike. It is therefore reasonable that some workers may need to work more than 50% of those strike days, especially if their colleagues are off sick, on leave or attending training. Secondly, these amendments would cap the minimum service level and reduce the influence of the consultation, and those who respond to it, in the setting of the minimum service level. Thirdly, Amendment 26 appears to prevent any work notice being given where there is only one day given on a strike notice, which therefore creates a loophole which could be exploited—that may have been the purpose of the amendment.

Amendments 27 and 28 look to require the employer to ignore a person’s trade union activities or use of trade union services in deciding whether to identify a person in a work notice. However, we believe the Bill already sufficiently protects against any discrimination regarding a worker’s union status when employers are preparing their work notices. The trade union activity or services that a union member may have been involved in are connected to whether they are a union member, which, as we have already said, the employer must not have regard to.

Additionally, existing legislation—Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992—already provides a remedy for workers who are discriminated against on union grounds, and that section will continue to be applicable here. Therefore, we believe the amendment is duplicative in nature.

--- Later in debate ---

Moved by

[Lord Fox]

32: The Schedule, page 4, line 37, at end insert—
“(9A) Failure to comply with a work notice may not—(a) be regarded as a breach of the contract of employment of any person identified in the work notice, or(b) constitute grounds for dismissal or any other detrimental action.”Member’s explanatory statement
This amendment would protect employees from detrimental action for not complying with a work notice.

[Lord Fox (LD)]

My Lords, the Minister may feel a sense of déjà vu in this group, but the point is to turn the focus to the individual worker named on the work order. This is not about the union or the company; it is to amplify the effect that this Bill can have on the individual. That is why I am happy to present Amendment 32 and to support the other two amendments in the group.

Amendment 32 would protect employees from the detrimental action of not complying with a work order. The point here is to amplify that, at the moment, failure to comply with a work notice could be regarded as a breach of contract. This amendment seeks to remove that possibility. Why? Because we are looking at a list that is prepared by an employer, with no sense of what criteria that employer is using to deliver the list. The employer assesses the number of people, and indeed the names of those people, who are required to produce a minimum service level that a Minister has decided with very little recourse to Parliament. It is the individual who is at the end of that chain, over which they have no control or power whatever. That is the point I seek to emphasise here. It is the individual at the end who will carry the can for this Bill, if it becomes an Act.

I have proposed this amendment because I want to emphasise very clearly that, although the Minister says the Bill is not about wanting to sack people, it can, and because it can, it will be used in the future to sack people for not complying with work orders—work orders produced in a process over which employees have essentially no power or ability to appeal whatever. It is an absolute infringement of their freedom. That is why I propose this amendment. Under the Bill, the employee could be sacked for taking strike action that has been agreed by a democratic ballot, it having gone through all the hoops that the Government require such ballots to observe. Because the employer has decided to put them on a list, the employee cannot do that.

From everything that has come from the Dispatch Box so far, I think it will be hard for the Minister to understand this. However, it is something my colleagues on these Benches and I have discussed a lot, and which we find to be a really important element of the Bill. It is about the relationships between unions and their employers, and between the employers and the Government, but in the end, it is about a fundamental individual right, and this Bill removes that right. I beg to move.

[Lord Hendy (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Fox. My Amendment 32A simply amplifies the noble Lord’s amendment and takes it a little further.

As I understand it, and the Minister will correct me if I have misunderstood the Bill, the consequence of being requisitioned and then refusing to work during a strike is that there will be no protection from unfair dismissal. As many other Members of the Committee have already said, if that is the case, bad employers—of which there are some—will use that as an excuse to be rid of people who they regard as trouble-makers, whether or not they are union activists.

--- Later in debate ---

[Baroness Noakes (Con)]

My Lords, it seems to me that the noble Lords, Lord Fox and Lord Hendy, are finding yet another way to try to deprive the Bill of any effect. In their own ways, they are trying to make it entirely voluntary to take part in the provision of minimum service levels, if requested by an employer. That runs completely counter to the policy intent of the Bill.

If noble Lords think that the Bill needs to be modified in some way to reflect their concerns, it is incumbent on them to produce amendments which find a practical way through that. To simply, in effect, make compliance with a minimum service level work notice voluntary is unacceptable in the context of the Bill. Although I understand the points that the noble Baroness, Lady Chakrabarti, makes, those issues are already covered by discrimination law. The concern she has about being selected on the grounds of sex, sexual orientation or race is already covered by discrimination law and does not need to be protected again in the Bill.

[Lord Fox (LD)]

Does the noble Baroness accept that in Committee, there are two sorts of amendments: there are amendments which are very practical and designed to be used as a template for changing the Bill, and there are probing amendments? I point out that I made it very clear that the latest two groups I was speaking to were probing amendments. On that basis, I think her criticism is invalid.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness for engaging so specifically and constructively in the debate, but I do not think she appreciates just how difficult it is, even under the present law, for people to go to a tribunal, with or without the assistance of lawyers or their trade unions, to demonstrate that they were picked on for one of these reasons. Now, in this Bill, a specific protection against unfair dismissal is being removed. An employer will say, “No, no, X, Y or Z was picked for this other reason. They are essential to the service”. It just happens to be the noble Baroness, Lady Chakrabarti, who is essential to the service every time and not, for example, my noble friend Lord Hendy, who of course is the expert. If I am always essential to the service and he is not, it will be very difficult for me to demonstrate that it was discriminatory, when the whole purpose of the Bill is, as the noble Baroness said, to remove protection from unfair dismissal.

--- Later in debate ---

[Lord Callanan (Con)]

My Lords, I thank all noble Lords who have contributed to this debate. At the risk of provoking further interventions, I will start by replying to the noble Baroness, Lady Chakrabarti. I do not know the legal definition of victimisation, but her understanding of it is clearly different from mine. I would define it as something like “subjecting an individual to degrading, unfair treatment”. In effect, a work notice says to an employee, “You fulfil your contract, as has been previously agreed, as normal. You come into work, do your normal contracted job and get paid for it.” In any definition that I understand, that is not victimisation. Obviously she has an alternative view, but I do not believe that it would come under the definition.

I will directly address the point by the noble Baroness, Lady O’Grady. I have said it before and will say it again: this legislation is not about sacking key workers. Let me be very clear about that. She inquired about the outline of the Bill: it is about protecting the lives and livelihoods of the public by enabling minimum service levels to be applied on a strike day. If people comply with the legislation, then there is no question of anybody being sacked on the basis of it.

This group of amendments seeks to ensure that no detrimental action could be taken by an employer against persons who are named on, but then fail to comply with, a work notice. There would be no consequences for participating in a strike despite being named on a work notice. The whole intention of these amendments is not to achieve a balance between the ability to strike and the rights and freedoms of the rest of us to go about our normal daily business—to get an ambulance, to attend the health service or to have a firefighter come to put out a fire in my property. This is about ensuring that strike action can continue with no consequence whatever and with no regard as to whether a minimum service level will be achieved. That fundamentally cannot be accepted by the Government.

For a minimum service level to be achieved, it strikes me as obvious that enough people need to attend work and therefore workers need to be appropriately incentivised to do that. The legislation achieves this by removing the automatic protection from unfair dismissal where employees participate in strike action despite being named on a work notice. While it is at the discretion of employers rather than the Government as to what, if any, action is then taken against employees in those circumstances, we think it vital that the Bill equips employers to manage instances of non-compliance, just as they would in any other case of unauthorised absence, to enable them to achieve that minimum service level. As my noble friend Lady Noakes observed, employees retain all their existing protections against discrimination—a very good point that further reinforces why these amendments are not required.

Overall, we believe that the approach in this legislation is fair and reasonable and ensures that there is the balance, which we have talked about so often, between the ability to strike and the rights and freedoms of everyone else to go about their daily business and use essential public services. Removing the ability for there to be any consequences whatever for failing to comply with a work notice would likely lead to strikes being more disruptive, as we have seen, when compared with the level of service that employers would be able to provide by applying a minimum service level that allows for these consequences.

Finally, there is a point of detail. Amendments 32 and 32A, if implemented, would cause a significant legal conflict with Part 2 of the Schedule, which makes amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 to make clear that there is no automatic protection from unfair dismissal for an employee who is identified in a valid work notice but participates in the strike contrary to that work notice.

In conclusion, I resist these amendments on the grounds that they seek to sustain or increase the disproportionate impact that strikes in these key areas can have on the public as a continuation of the status quo, a continuation of the public being disproportionately impacted by strikes and a continuation of lives and livelihoods being put at risk by those strikes. Therefore, I cannot accept these amendments.

[Lord Fox (LD)]

With each group of amendments that passes, I get the impression that the area of carpet between me and the Minister is getting larger. The differences are getting larger rather than smaller, which is disappointing because sometimes in Committee they can be narrowed, but I do not get that sense. In describing the change in a person’s contract so that on one day they are able to strike with legal protections and on the next day that contract is unilaterally changed, I do not have to use the word “victimisation”. I can use some other word, perhaps “unfair” or “wrong”. That is the fundamental difference between me and the Minister, and that is what is causing the carpet to expand. Acknowledging that this was a probing amendment, I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

--- Later in debate ---

[Lord Hendy (Lab)]

My Lords, I shall speak to Amendments 33 and 34. I share my noble friend Lord Collins’s outrage at this proposal. It is one thing to set minimum service levels and another thing to specify requisition notices by way of a work notice, but to require trade unions to organise themselves so as to break their own strike is a step that has never before been taken in this country and, so far as I am aware, is not required in any other country in Europe.

I remind the Committee that the provision in the Bill that we are seeking to discuss says

“the strike is not protected as respects that person’s employer if … the union fails to take reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice.”

So the obligation on the union is to

“take reasonable steps to ensure”

that all members comply with the notice. That is a very heavy obligation to put on unions. In principle it is objectionable, but the extent of it makes it even more so.

I cannot develop the objection on principle further, but there are some practical considerations here that perhaps the Minister can consider. We are envisaging a work notice given by the employer to the union, setting out names of a number of workers who are required to work and the work that they are required to do; we remind ourselves that, at the end of the Bill, it is said that that can be on a daily basis. If you have one employer and one strike affecting a small number of workers, that may be a relatively easy obligation to comply with.

However, I remind the Minister that the Bill applies to the education service. I have just looked up the Office for National Statistics site, which tells me that there are 32,226 schools in this country—although in fact I understand from the National Education Union that it balloted only some 24,000-odd of those. Think of that: even if we assume that only half the employers decide to supply a work notice, on a daily basis the unions are going to get 10,000 or 12,000 emails with a list of teachers who are required to be in. The union then has to set that list against its own membership database in order to determine which of them are members of the union, and then has to communicate with each one of them in order to demonstrate that they have taken “reasonable steps to ensure” that those members comply with the notice. This is just nonsense, is it not? It really must be.

Part of the problem is that the Bill does not define “reasonable steps”—that will be left to the courts to determine. I have done enough of these industrial action cases over the last 40 years to know that employers’ barristers—all friends of mine—are going to use every argument in the book to demonstrate that the union has not taken the “reasonable steps” that the employer says it should have. One of those, of course, will be to say that the union did not threaten to discipline any members who refused to comply with the notice or expel anybody, and to ask what it did do.

All of this is against the background of a union having committed itself, after a vote in favour by the members—a vote which meets all the thresholds—to advancing a strike. All the publicity that goes out from the union’s website and journal and in emails to members will say that it is calling a strike on, say, the 24th of the month, starting at midnight, and calling for members to join the strike, go on the picket line and participate—this is their fight and their struggle for better pay and conditions, or whatever it is. However, the union has to demonstrate that it identified those members appearing on a work notice in order to show that it took reasonable steps to ensure that those members complied. This is simply not realistic, and it is not acceptable.

[Lord Fox (LD)]

Following on from the noble Lord, Lord Hendy—I apologise for butting in—it is not quite as simple as that. What happens if, of the employers list, 30% of them go off sick? Who is accountable for filling in the gap? Is it the union? Does it have to take “reasonable steps” to find substitutes? The Minister shakes his head to say that it does not—that is good. Perhaps when he replies he can explain what happens in the event of a significant number of those people going off sick.

I will not add any more, as I am sure there will be plenty from the Benches of His Majesty’s Opposition.

[Lord Woodley (Lab)]

My Lords, I support these amendments and want to complement and supplement the contribution of my noble friend Lord Hendy. As he said, these amendments deal with the fundamental issue of protecting trade unions from being forced to act against their own interests during a legally authorised dispute.

Like my noble friend, I find one of the most appalling parts of this skeletal Bill the requirement for trade unions

“to take reasonable steps to ensure”

members comply with a notice to strike-break. Ensuring compliance is the role of the trade unions, according to the Bill. What on earth does that mean in practice? There is nothing in the Bill to guide us here. How can unions be expected to police their own members who, after all, are simply ordinary workers who voluntarily joined the union? They pay their subscriptions and expect their union to support their democratic decisions, especially during disputes.

How is compliance normally ensured? How does the state ensure that people comply with its laws, for example? Again, as my noble friend Lord Hendy said, it is by threat of sanction or some kind of punishment. Is that what is meant here? Are trade unions supposed to threaten their own members with some kind of punishment if they do not cross their own picket lines? It is ridiculous. It is certainly not clear in the Bill whether that is or is not the case. But you can bet one thing: the bosses will see it that way.

What if the bosses or, ultimately, the courts decide that this punishment is not harsh enough? What if it is decided that the union did not take so-called “reasonable steps” or threaten punishments harsh enough to ensure that its members complied with the employer’s work notice? What then? Well, the whole strike loses legal protection, as does the union. What does that mean? The Minister in the other place was very clear in his letter to the Joint Committee on Human Rights when he said that all workers would

“lose their automatic protection from dismissal for industrial action”.

In short, they could face the sack. There is no dispute about what was said in the other place.

--- Later in debate ---

[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.

[Lord Fox (LD)]

My Lords, this is something of an hors d’oeuvre for the next group, so I will save my comments on this issue—although I thoroughly agree with the noble Baroness—for Amendment 37, which I consider to be a meatier version of the same issue. This is clearly starting the move to the territory where we give Parliament the opportunity at least to scrutinise, if not amend, what comes before it. We will come to more of that in a few minutes.

[Lord Hendy (Lab)]

My Lords, at the risk of saying what I said earlier, if this amendment is not accepted by the Government, that presents a problem to the whole House as to what is to be done about Bills that do not conform to the elementary requirements of various committees, where detail is not published in the Bills but reserved to regulations. That problem will have to be confronted if the Government are not prepared to accept this very modest amendment, as my noble friend Lady Chakrabarti put it.

--- Later in debate ---

Moved by

[Lord Fox]

37: The Schedule, page 5, line 35, leave out from “provision)” to end of line 37 and insert “is subject to the super affirmative procedure as set out in subsections (4A) to (4H).
(4A) The Secretary of State must lay before Parliament—(a) a draft of the regulations, and(b) a document which explains the draft regulations.(4B) Where a draft of the regulations is laid before Parliament under subsection (4A), no statutory instrument containing the regulations may be laid before Parliament until after the expiry of the 30-day period.(4C) The Secretary of State must request a committee of either House of Parliament whose remit includes either the wider UK workforce and industrial relations, or the sector to which the regulations relate, to report on the draft regulations within the 30-day period. (4D) In preparing a draft statutory instrument containing the regulations, the Secretary of State must take account of—(a) any representations,(b) any resolution of either House of Parliament, and(c) any recommendations of a committee under subsection (4C),made within the 30-day period with regard to the draft regulations.(4E) If, after the 30-day period, the Secretary of State wishes to make regulations in the terms of the draft or a revised draft, they must lay before Parliament a statement—(a) stating whether any representations, resolutions or recommendations were made under subsection (4D),(b) giving details of any representations, resolutions or recommendations so made, and(c) explaining any changes made in any revised draft of the regulations.(4F) The Secretary of State may make a statutory instrument containing the regulations (whether or not revised) if, after the laying of the statement required under subsection (4E), a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(4G) In this section, references to “the 30-day period” in relation to any draft regulations is to the period of 30 days beginning with the day on which the original draft regulations were laid before Parliament.(4H) For the purposes of subsection (4G) no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.”Member’s explanatory statement
This amendment seeks to provide Parliament with the opportunity for enhanced scrutiny of the regulations made under this section.

[Lord Fox (LD)]

My Lords, Amendment 43 in this group is also in my name. In a sense, this provides a more general debate, to which the noble Lord, Lord Collins, has given us an amuse-bouche.

Amendment 37 introduces a super-affirmative process, the need for which the noble Baroness, Lady Chakrabarti, referred to, although not in those same words. Those noble Lords who have participated in the same Bills as me will be familiar with this format, because I have brought it to several Bills—indeed, I am doing so concurrently. I did not invent this process, but I feel that it is a very good way of giving Parliament a sense of ownership and oversight of the sort of things that we are talking about today. It seeks to provide Parliament with the opportunity for extended scrutiny.

--- Later in debate ---

[Lord Callanan (Con)]

My Lords, as I set out in the previous group, which the noble Lord, Lord Fox, described as the amuse-bouche grouping, there are already sufficient checks and balances built into the legislation before any regulations can be made. These include the need to carry out consultations with key stakeholders, including employers, employees, relevant trade unions and their members, who are all encouraged to participate in the consultations—we have some of the regulations out for consultation at the moment—and have their say in setting minimum service levels before they come into effect.

Parliament, including Select Committees, will also have an opportunity to contribute to the consultation and scrutinise the regulations. The Government firmly believe that this is the right approach. It ensures that a wide range of views can be gathered. Parliament can scrutinise regulations without significantly delaying the implementation of MSLs and therefore extending the disproportionate impact that strikes can have on the public.

Amendments 42 to 48 all seek to amend the provisions to make consequential amendments. The Government resist these amendments on the grounds that Clause 3 is a fairly standard clause, used regularly in primary legislation. Let me explain to the Committee what it is for. The power to amend primary legislation within the clause is a standard power with standard wording. Perhaps it will be helpful to give some examples of where it is on the statute book already. It is in Section 182 of the Health and Care Act 2022, Section 47 of the Corporate Insolvency and Governance Act 2020, Section 23 of the Bus Services Act 2017—I am sorry that the noble Baroness, Lady Randerson, is not here to hear that—and Section 66 of the Children and Social Work Act 2017. This power is not unique to legislation introduced under a Conservative Government. I say to the noble Lord, Lord Collins, that Section 51 of the Constitutional Reform and Governance Act 2010 also includes the same power. Additionally, the report, The Legislative Process: the Delegation of Powers, published by the Lords Select Committee on the Constitution in 2018, states:

“Delegating power to make provision for minor and technical matters is a necessary part of the legislative process … Delegated legislation, which is subject to less parliamentary scrutiny, should only be used to fill in the details.”


That is exactly what this power is intended for.

I remind noble Lords that the DPRRC did not draw attention to or raise concerns about this delegated power in its report published on 2 February. I know that it did on others, but it did not with this one. The power may be used only to make amendments to other legislation that are genuinely consequential on this Bill. It is there purely to ensure that the legal provisions within this Bill can be maintained after they have received Royal Assent. Therefore, the Committee will understand why I cannot support these amendments.

Amendment 48 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. The Government again resist this amendment on the grounds that the provisions of this Act will extend to England and Wales and Scotland. Employment rights and duties and industrial relations are reserved in respect of Scotland and Wales. Therefore, it is right that the Secretary of State has the power to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd, if required to ensure that the new legal framework operates in a coherent way across the entirety of Great Britain.

The disproportionate impacts that strikes can have are no less severe on people in Scotland or Wales than they are in England. 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 will of course engage with the devolved Administrations as appropriate. I have met devolved Ministers to discuss the Bill. Obviously, we will engage further if any consequential amendments are required to Acts of the Scottish Parliament or Welsh Assembly. As this clause is completely standard and has been introduced in several pieces of legislation, including by a previous Labour Government, I hope that noble Lords will feel able to withdraw or not move their unnecessary amendments.

Turning to Amendments 45 and 46, I believe that the intention of the noble Lord, Lord Collins, is to delay the commencement of regulations providing for minimum services until the Government have assessed the Bill’s impact on recruitment and retention in the public and private sectors, and the impact on those with protected characteristics. However, the amendments as drafted are to Clause 3, which provides a power to the Secretary of State to make consequential provision. Therefore, the amendments would delay commencement of regulations which make consequential amendments to other legislation.

Speaking to what I believe is the intended purpose of the amendment, I say that the Government resist it. As I have already set out in my response to the noble Lord, Lord Fox, the Secretary of State must consult on regulations, and they must be approved by both Houses before they can be made.

Impact assessments will be published for all subsequent regulations on minimum service levels and will, as always, contain a public sector equality duty assessment. I also draw noble Lords’ attention to the already published impact assessments for the Bill and currently ongoing consultations on establishing minimum service levels in ambulance, fire and rescue, and rail services, all of which contain public sector equality duty assessments. I hope that I have convinced noble Lords to withdraw and not move their amendments.

[Lord Fox (LD)]

I thank noble Lords for their contributions to the debate on this group. I am particularly grateful to the right reverend Prelate the Bishop of Leeds for painting a picture of King Henry VIII strutting across the Field of the Cloth of Gold on a pair of stilts.

[The Lord Bishop of Manchester]

Manchester.

[Lord Fox (LD)]

What an awful mistake to have made—I am very sorry and correct the right reverend Prelate’s territory. This is a serious group of amendments. The fact that it comes at the end of a day, and a long week, should not detract from that seriousness.

Listening to the Minister’s response, I was struck by the tone, which is: “This is a perfectly reasonable process. We are having a consultation and doing this and that. These people can contribute, and Parliament can contribute through the consultation”. It is for Parliament to make these decisions—not for the Government to do so, allowing Parliament to feed a little into the process.

The Minister has proposed the particular frame that we see in Clause 3 too many times. He went through a short list of Bills. I am aware of two of those, having participated in them, and I spoke against that power on both occasions. None of those is seven pages long and devoid of the detail required, but that is what the Bill is.

[Baroness Chakrabarti (Lab)]

Surely all these other Bills consist of a bit more than two delegated powers. That is what this Bill is.

I am beginning to feel sorry for Henry VIII. He was born a King and born to rule. I am thinking more of Julius Caesar, who was supposed to be part of a republic and led to its demise so that it became an empire. How did he begin that process? It was by diktat, by becoming a dictator. Powers such as this pave the way for that.

[Lord Fox (LD)]

I thank the noble Baroness, who has now introduced history; having failed geography, I will not enter into the history debate. She is completely correct: these powers are being taken for a Bill that is nothing. For the Minister to use the examples he did was completely inappropriate: they are different Bills of a different nature and scale.

We look forward to the Minister’s official response. I think he promised a letter on the DPRRC. I will study Hansard carefully on this. As the noble Lord, Lord Collins, put it, we will be doubly resolved that this issue cannot be left in Committee. We will certainly come back, unless the Minister’s letter turns out to be better than I normally expect. That said, as usual, I beg leave to withdraw.

Amendment 37 withdrawn.

--- Later in debate ---

[Lord Greenhalgh (Con)]

My Lords, I support the noble Lord, Lord Hogan-Howe. As the deputy mayor for policing and crime alongside him when he was a very distinguished commissioner, I always defer to his operational understanding. This is someone who led a very large service and understands the constraints that would occur if we saw a withdrawal of labour from these very specialist police staff who do more than just support police officers on the front line.

I draw attention to the fact that there is a real inconsistency here. As a former Fire Minister I am delighted to see that fire is included when it comes to call handling, and as the son of a surgeon I am delighted to see that the London Ambulance Service and other ambulance services are included in the Bill. Let us take London call volumes as an example, to give a sense of the order of magnitude. The Met answers 13,000 calls a day, which is nearly 5 million calls a year. The London Ambulance Service answers just over 2 million calls a year, while for the fire service it is probably nearer to 150,000 calls a year. We need parity when it comes to our three blue-light services, particularly because, as the noble Lord, Lord Hogan-Howe, put it, some of these calls are about wheels moving fast to save lives, even if they do not always know that is the case. I just do not understand not having the same approach to all three blue lights.

The noble Lord also raised forensics. The clear-up rate is about 95%—I hope that is still true—for murders in our capital city. That is largely down to a team effort that includes the use of forensics, and we have just heard about the importance of surveillance in tackling crime.

I think that even at this late stage we should consider the police service within those public services where we require a look at minimum service levels. It makes intellectual sense, and I know that at this stage we could introduce these amendments. Based on the response from the Home Office, we will see whether we bring this back on Report in the right part of the Bill—we were a bit late tabling the amendment, for various reasons.

It makes sense to have parity between the three blue lights. That is why I support the noble Lord, Lord Hogan-Howe. As deputy mayor, I always knew to defer to his operational excellence.

[Lord Fox (LD)]

My Lords, we are not particularly in the business of adding people to this Bill. If the noble Lords had attended all our sessions, they would have heard that we are not terribly appreciative of the Bill’s objectives, nor the way in which it goes about them. But I am grateful to the noble Lords for highlighting, as we pointed out earlier, the curious selection of services. We particularly questioned the decommissioning of nuclear installations, for example, where voluntary agreements already exist on a pretty comprehensive scale, so why is this in there?

I am also grateful that they have attracted a Home Office Minister here to answer the question. My question for him is: how much consultation was held with the Home Office by what was then BEIS, which drew up the Bill, about choosing who was on this list, and indeed who was not, when it came to drafting the legislation? That would be an interesting point.

I could not resist pitching in on forensic services. As the noble Lord, Lord Hogan-Howe, knows, since the change in the whole service, essentially its privatisation, a large lump of that service went into the police force—I was going to say it was “captured”, and that is not supposed to be in a pejorative sense. In the Metropolitan Police, a huge proportion of what was often delivered externally to the police force is now being delivered internally; I think it is around 80% in the case of the Met. That leaves 20% of the service coming from private sector providers and what I call specialist suppliers, which are often academics or people who have set up organisations. I suggest that it is much harder to make those two types of supplier fall within the remit of what the noble Lord envisions, given the debate we have had about involving private sector suppliers in the health service or transport. That debate has clouded how this would operate. Still, a large proportion of the forensic service is within the police ambit when it comes to management.

With those notes, the key issue is to ask the Home Office why fire and rescue is in but the police are not. What consultation process did that go through, and how did the decision come about? We would be interested to see inside the box.