Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels)

Lord Hendy Excerpts

Wednesday 6th December 2023 Lords Chamber

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

My Lords, I rise to support the amendment standing in the name of my noble friend Lord Collins, and to join him in reminding the House that Labour will repeal this toxic legislation that would turn the clock back on mature industrial relations and workplace justice in this country.

First, I relay my thanks to the Minister, the noble Lord, Lord Offord, for taking the time to meet with me yesterday. Our discussion touched on the P&O Ferries scandal. I confirmed that, after those unlawful mass sackings, no one was prosecuted and there have been no government sanctions against either the firm or the owner. Compare and contrast that with the proposals that we have before us today. This House rightly raised the alarm about the risks of a skeleton Bill railroaded through without proper scrutiny or parliamentary accountability and without proper regard for our international obligations.

Sadly, this legislation was never about good policy-making; rather, it is about an unpopular Government trying to shift the blame for their own failings on to decent public servants and punishing trade unions which exist to defend them. Ministers say they are standing up for public service users, but those claims ring hollow. During the recent wave of strike action, polls showed public sympathy with the strikers and exasperation with Ministers’ high-handed, slow and chaotic approach to resolving these disputes. Now, the OBR is forecasting an unprecedented two-decade squeeze on real pay by 2028, and the Autumn Statement heralds another round of deep austerity cuts for many public services. That is why the Government are railroading through this bad legislation. They have no intention of addressing the causes of discontent; the objective is to crush it.

The code of practice is just the latest manifestation of contempt for the rights and freedoms of ordinary working people. The code sets out so-called “reasonable steps” that unions must take to comply. However, there is nothing reasonable about the code’s ridiculous requirements and deadlines for identification, state interference in what an independent union must communicate with its own members, new demands on picket supervisors when the strikes Act did not even mention picketing or imposing draconian sanctions on staff and unions. Rather, the code enables employers, no doubt under pressure from Ministers, to disregard democratic strike ballot, drag unions into court, attack union funds, strip away automatic protection against unfair dismissal and ban strikes by the back door.

On the day that the former Prime Minister, Boris Johnson, professes gratitude to healthcare workers and other public servants for protecting people through the pandemic, this is their reward. In drawing up this code, Ministers ignored the advice of Select Committees of this House, trade unions who opposed the strikes Act, employers who never wanted it, the RPC, which red-rated it, the UN’s labour arm—the ILO—and even the UK’s widely respected industrial relations body, ACAS.

I have two questions for the Minister. First, the Government fund ACAS with taxpayers’ hard-earned cash to promote good industrial relations and provide real-world expertise. However, ACAS’s long list of sensible proposals for substantive amendments to this code were rejected. Can the Minister tell us why? In what area of good industrial relations practice have this Government proved to be more expert than ACAS?

Secondly, the code spells out that an individual worker who disobeys a work notice will lose automatic protection against unfair dismissal and, if unions are deemed to have failed to have taken the so-called reasonable steps, all striking workers lose that automatic protection. However, the code says absolutely nothing about what positive rights NHS staff, rail staff and other dedicated key workers would then have in those circumstances. This is quite an oversight. If, as a result of the legislation, workers individually or en masse are sacked, precisely what would their rights be and why does the code fail to set this out?

[Lord Hendy (Lab)]

My Lords, I declare my interests as in the register and that I am a member of the Delegated Powers and Regulatory Reform Committee.

Of the many points that I would like to make, I will restrict myself to four. First, having spent 46 years of professional practice largely involved in the legal consequences of industrial relations disputes, I find it offensive that the Act and the code of practice compel trade unions to serve the interests of employers in undermining their right, guaranteed by all relevant international law and hence diminishing the only bargaining power our 34 million workforce have, to enhance the terms and conditions on which they sell their labour.

Secondly, in November 2021 the Delegated Powers and Regulatory Reform Committee published Democracy Denied? and the Secondary Legislation Scrutiny Committee published Government by Diktat. Your Lordships will recall the two principles underlying those reports. First, primary legislation should conform to the principles of parliamentary sovereignty, the rule of law and the accountability of the Executive to Parliament. Secondly, the threshold between primary and delegated legislation should be founded on the principle that the principal aspects of policy should be in the Bill and only detailed implementation should be left to secondary legislation. These principles were debated in this House on 6 January 2022 and 12 January 2023. The House clearly and strongly endorsed them. I understood that the then Leader of the House did not dissent from them. Yet this legislation failed both principles.

In its consideration of the Bill, the Delegated Powers Committee, in its 27th report, criticised the Bill’s granting of a Henry VIII power to the Secretary of State to set minimum service levels by regulations. We said:

“This is a Bill that deals with minimum service levels during strikes. Yet there is nothing in the Bill saying what those minimum service levels are. We shall only know when Ministers make regulations after the Bill is enacted. This is small comfort to Parliament, which is considering the matter right now”.