Strikes (Minimum Service Levels: Fire and Rescue Services) (England) Regulations 2024

Lord Sharpe of Epsom Excerpts

Tuesday 19th March 2024 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Strikes (Minimum Service Levels: Fire and Rescue Services) (England) Regulations 2024.

Relevant document: 15th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, these regulations were laid before Parliament on 8 February, following publication of the department’s response to its consultation on implementing minimum service levels for fire and rescue services. Before we get into the detail, I would like to take a moment to pay tribute to all those who work in fire and rescue services: for all that they do, I am extremely grateful.

The services provided by fire and rescue authorities are critical to the safety of the public and the protection of property and the environment. It is therefore crucial that the public remain able to access fire and rescue services when they need them. The overarching aim of these regulations is to help ensure that this happens on strike days. Using powers introduced by the Strikes (Minimum Service Levels) Act 2023, the regulations will allow fire and rescue authorities to issue work notices to ensure that there is sufficient cover to answer all emergency calls and respond to fire-related emergencies as if strike action was not taking place.

The minimum service level for fire and rescue services includes three core aspects. These are control rooms, emergency incident response and fire safety services. Broadly speaking, the responses to the Government’s consultation, including those from the majority of fire and rescue services, were in favour of a nationally set minimum service level, but with a degree of local flexibility. This is reflected in the provisions set out in the regulations.

For control rooms, the minimum service level makes sure that emergency calls are answered and assessed, and resources dispatched to emergency incidents, as if it were a non-strike day. Decisions on the number of staff required to fulfil these functions will be for individual fire and rescue authorities to take.

For firefighters, we have set the minimum service level at 73% of the appliances—by which I mean fire engines and other fire and rescue service vehicles—that would be available if strike action were not taking place at that time. Individual fire and rescue authorities will be able to determine the number of staff required to safely crew and oversee these appliances.

The decision to set this aspect of the minimum service level at 73% is based on detailed modelling, summarised in our consultation response. The modelling calculates the proportion of days over the past five years on which demand exceeded the number of appliances required to meet a minimum service level set at different thresholds. The model identified 73% as the threshold at which every fire and rescue service would have enough appliances available to meet emergency demand on more than 97% of days. In the interests of public safety, we therefore consider 73% the most appropriate point at which to set this aspect of the minimum service level.

Many fire and rescue services also host national resilience assets, which would form an important part of any response to major and significant incidents, such as a major building collapse or a wildfire. It is of the utmost importance that fire and rescue services can maintain these capabilities and keep the public safe. This is why the minimum service level for national resilience assets is set so that they are capable of being deployed as if the strike were not taking place. Like other provisions in the regulations, fire and rescue authorities will consult trade unions and determine the number of staff required to meet this minimum service level.

The third key element of the minimum service level is to provide cover for urgent fire safety issues. Under the regulations, fire and rescue services will be expected to have staff available to rectify any emerging issues that pose an imminent risk to life and so would normally require a same-day response. This could include any significant fire safety issues uncovered at residential or public premises. Individual fire and rescue authorities will be able to determine how much cover will be required for these activities, although we anticipate that the number of urgent fire safety issues emerging on a strike day is likely to be relatively small.

The minimum service level set out in these regulations is designed to balance the ability of workers to take strike action and the need of the public to access essential services. In summary, this is a proportionate step to ensure that public safety is protected on strike days. I beg to move.

[Lord Hendy (Lab)]

My Lords, in the debate on the strikes/minimum service legislation and the regulations made under it, the rationale for the right to strike sometimes gets overlooked. I will cite for your Lordships three very short passages, not from Marx and Engels or Sidney and Beatrice Webb but from the highest courts in the United Kingdom and Canada.

First, I cite a case of the Judicial Committee of the House of Lords from 1942, Crofter Hand Woven Harris Tweed v Veitch, in which Lord Wright said:

“Where the rights of labour are concerned the rights of the employer are conditioned by the rights of men to give or withhold their services. The right of workmen to strike is an essential element in the principle of collective bargaining”.


The second authority that I want to put before your Lordships is a case in the Supreme Court of Canada from 2015, Saskatchewan Federation of Labour v Saskatchewan. In it, the Chief Justice cited an earlier case in the Ontario High Court, with approval, in which it was said that

“freedom of association contains a sanction that can convince an employer to recognize the workers’ representatives and bargain effectively with them. That sanction is the freedom to strike. By the exercise of that freedom the workers, through their union, have the power to convince an employer to recognize the union and to bargain with it … If that sanction is removed the freedom is valueless because there is no effective means to force an employer to recognize the workers’ representatives and bargain with them. When that happens the raison d’être for workers to organize themselves into a union is gone. Thus I think that the removal of the freedom to strike renders the freedom to organize a hollow thing”.

Finally, in a later passage, the Chief Justice said:

“The right to strike is essential to realizing these values and objectives through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse. Through a strike, workers come together to participate directly in the process of determining their wages, working conditions and the rules that will govern their working lives … The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives”.


As your Lordships well know, collective bargaining operates successfully in the fire service, including in relation to incidents that may occur when strikes are called. Those issues are negotiated, as are terms and conditions and—most recently, of course—pay, but the effect of these regulations will be to remove the right to strike for a large proportion of the staff of the fire and rescue service. For example, as the Minister pointed out, 73% of appliances and crew must be available, as on a non-strike day. In my local fire station, there are three appliances, so the application of the 73% rule means that all three must be present, available and fully crewed on any strike day.

In addition to that, 100% of control room staff must be available, as must 100% of the staff whose job it is to work national resilience assets such as high-volume pumps and, I think, aerial ladder platforms. The effect of these regulations will be to diminish the bargaining power of the fire and rescue service’s workers and union, which will result in worsening terms and conditions and will lead to difficulty in retention and recruitment.

The United Kingdom has ratified ILO Conventions 87 and 98, which protect the right to organise and to bargain collectively. They are two of the five fundamental conventions of the ILO, the importance of which the UK recently reasserted in the trade and co-operation agreement it reached with the European Union when leaving. Under Article 387(2) of that agreement, the obligation on the EU and the UK is as follows:

“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards”.


The words

“labour and social levels of protection”

are defined in Article 386 as including the fundamental ILO conventions. Under Article 399(2),

“each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions”,

which it then summarises.

It is clear that these regulations will lead the United Kingdom to be in breach of its international legal obligations. It is true that the ILO jurisprudence permits a state to adopt minimum service legislation, but that is on one condition, which has a number of aspects. First, the minimum service level must be the subject of negotiation between the social partners; secondly, the fulfilment of that minimum level of service in any particular firm or enterprise must be the subject of negotiations between the unions and the particular employer; and thirdly, in the event of disagreement, there must be an established method of resort to either judicial or arbitral resolution of the failure to agree. That applies in all the countries in western Europe.

There is a fourth element to it. Where workers are deprived of the right to strike, such as, in our case, control-room staff, compensatory measures must be adopted by the state which bars the right to strike. The compensatory measures are that the ability to seek arbitration must be speedy, binding, independent and impartial. None of those conditions is available under these regulations or indeed under the Act itself, so I ask the Minister, how can the UK be said to uphold the rule of law in the face of what is a clear breach? How will the Government explain this discrepancy to the European Union?

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing this statutory instrument and join him in paying tribute to all those who work in this area.

As the Minister said, on 8 February this year, the Government published their minimum service levels for fire and rescue services in England. These new laws will restrict the ability of firefighters and emergency control staff to take lawful strike action. We believe that the new laws are unnecessary. The FBU has always negotiated a major incidents agreement with fire employers before national strikes. Last year, collective bargaining between the FBU and fire employers meant that there were no fire strikes. An acceptable pay agreement was reached and endorsed by the firefighters.

The minimum service level regulations state that fire and rescue control rooms must function during industrial action as if it were a non-strike day. All calls have to be answered, assessed and a response mobilised. Requiring the same standards as a non-strike day is in effect a ban on control staff taking industrial action, despite repeated assurances that it is not a strike ban.

The regulations for minimum service levels of firefighting functions dictate that 73% of appliances usually deployable on a non-strike day must be deployable on days when industrial action is taking place. My noble friend Lord Hendy gave the example of his local fire station, which has three appliances, so it is in effect a strike ban on that station. How many firefighters will be forced to work if a work notice is issued? What is to stop chief fire officers abusing the work notice and forcing all firefighters to work? Ministers have failed to explain how work notices will affect retained firefighters since retained firefighters cannot be compelled to work on strike days; I would be grateful if the Minister could comment on that.

The minimum service level regulations state that national resilience assets, such as high-volume pumps, must be capable of being deployed as if the strike were not taking place that day. This is in effect a strike ban for firefighters deployed on national resilience assets. I would be grateful if the Minister could comment on that.

Ministers claim that these laws are needed because the Army no longer provides cover. The last time the Army was deployed during fire strikes was in 2003. After the coalition Government attacked firefighters’ pensions between 2010 and 2015, the FBU organised 50 separate firefighter strikes in England. The FBU has always signed a major incident agreement with fire employers before national strikes, with provisions to recall firefighters in the event of a major emergency.

Government guidance makes it clear that the liability for work notices lies with fire authorities. Fire employers in England are rightly unhappy with these regulations. Many will not impose work notices because of the impact on industrial relations. Fire Ministers in Scotland and Northern Ireland have refused to implement these laws. It is unclear how these regulations can or will be applied in operation. It is a risk, both legal and reputational, on fire service employers who choose to issue work notices.

The guidance is clear that it is not statutory and that, ultimately, the courts will interpret the law. This places a risk on employers that is compounded by the additional difficulties that are unique to the fire and rescue service. Failure to comply with these unworkable measures exposes individual firefighters to the risk of the sack, while the FBU could also face financial penalties.

The regulations before us today are an example of the Government’s failed approach to industrial relations. No one wishes to see the public disrupted by industrial action. We all wish to see minimum standards of service in our public services but these regulations will not achieve what the Government want them to. They will poison relations when what is needed is a constructive working agreement between management and unions. The Labour Party opposes attacks on working people’s freedoms. That is why we would repeal the 2023 Act and why we oppose the regulations before us today.

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful for all the contributions to this relatively short debate. As I outlined in my opening remarks, the Government believe that these regulations are vital to ensure that there is sufficient cover to respond to fire and rescue-related emergencies on strike days. They will help protect the public and provide people who call 999 with reassurance that firefighters will be able to respond quickly to reduce the risk to life and property. Fires can spread quickly and present a serious threat to life and limb; it is vital that such services are available to the public during strike action. Demand for fire and rescue services fluctuates depending on the season, weather patterns and the time of day. As we saw in the tragic fire at Grenfell, without warning, fire can quickly spread, develop into a major incident and cause an unspeakable tragedy that will devastate a community.

I want to be clear that fire and rescue services perform a critical role in our society. It is only right that they respond to incidents that could pose an immediate risk to the public. I say to all noble Lords that we of course recognise the importance of the ability to strike, which is protected by law. We are striving to maintain a balance between the ability of workers to strike and the rights of the public to access the emergency services when they need them.

The noble Lords, Lord Hendy and Lord Ponsonby, and the noble Baroness, Lady Twycross, emphasised that we are challenging the right to strike. I stress again that we are not banning the ability to strike. These regulations focus on maintaining fire and rescue services’ capacity to respond to emergency incidents that posed an immediate risk to the public. Fire and rescue services will be able temporarily to suspend more routine duties that they would normally carry out if such action were not taking place.