Strikes (Minimum Service Levels) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Thursday 9th March 2023 Lords Chamber

[Lord Markham (Con)]

As I answered earlier on the devolved Governments, by definition, we accept that different trusts have the ability to work out what is best for their own area. Clearly, devolved Governments will each have their own opinion on how they want to act. The same principle exists in each place. We are not saying to each trust, “Thou shalt enact it in this way”; we are just giving those backstop powers. The most important thing here, which I think we all agree on, is for there to be the ability in all circumstances to protect life and limb. If doctors, nurses and ambulance crews all go on strike at the same time and say as part of that that they do not want to provide A&E cover, that is a circumstance where we are not able to provide those minimum services. I think that most fair-minded people would conclude that there is a risk to life and limb in that case.

The points made about civil claims—I know that they are very much the concern of the noble Lords, Lord Kakkar and Lord Patel—will be addressed in considering later amendments.

[Lord Thomas of Cwmgiedd (CB)]

I want to take up the Minister’s point in relation to devolved Governments and health services. As I understand him, assuming the Bill goes through and the Secretary of State for Health decides that there is to be a minimum service level, that does not compel the Governments in Scotland and Wales to adopt it; it is completely voluntary for them, just as it is for trusts. Have I understood the Minister correctly? If neither trusts nor the devolved Governments are in any way bound to impose this, it seems to me a matter of such importance that it ought to be dealt with by specific provision in the Bill. Otherwise, one will have problems for the future. The last thing we want ever to do is to have to rely in any actions that follow on an assurance given in this House—not that I am doubting it for a moment; it is just a question of clarifying how this works. It is a matter of such importance that it must be clarified. The Bill can easily be amended to make it clear, both in respect of devolved Governments and of health trusts, that these are the standards set but the devolved Governments do not have to impose them.

[Lord Markham (Con)]

Again, my understanding is that there will be later groups of amendments where we will talk specifically about the devolved Governments, so there will be further opportunities then to discuss this matter. However, on the principle the noble and learned Lord raises, we are setting down, in consultation, what we think the minimum service levels need to be to protect life and limb in these circumstances. In the case of ambulances, which was mentioned, that covers the ability to answer 999 calls, to categorise whether it is a category 1 or category 2 call—by the way, we are not seeking to change the definitions of category 1 and category 2—and to ensure that those calls can be answered, because they are life-threatening circumstances. To enact that, it is up to the employer—in this case, the trust—to work with local unions to ensure that it is in place, and how trusts decide to do that is up to them. It would be fantastic if they never needed to refer to that, but we, the Government, want to protect these circumstances so that we will not have occasions when A&Es are unable to operate.

[Lord Thomas of Cwmgiedd (CB)]

It may be that we need to go into this matter in some more detail, but what concerns me is this: I do not really know the detail of health law but let us assume that trusts are under a legal duty to carry, and to provide for, hospital services. So I assume that the Minister is saying that, as this goes forward, there will no comeback from the Government on a failure to exercise a legal duty to follow that, if they decide, “No we don’t want to impose this”. There will be no comeback, because it will be up to them.

This becomes very important when one turns to the liability of trade unions, because if a liability is imposed on the health trust for failing to comply with minimum standards, and it does not do so for various reasons, is there any consequential liability to the trade unions? This is quite a difficult and important subject, but for the devolved Governments, and, in this case, for health trusts, it is critical to know to what extent they are bound, when they take a different judgement on how to deal with the strike, to follow the minimum standards established by the Government. It is a critical question, and I do not want to be unfair to the Minister by making an intervention.

[Lord Markham (Con)]

I thank the noble and learned Lord for his comments. As I have said, in these circumstances we are talking about putting in place those minimum service levels for the trust to be armed with and to be able to enact. We are not trying to put in place any legal framework that we can use to go back and sue the trust for not holding to it, and we are not trying to put legal obligations on the trust to do it. Instead, we are trying to give an enabling ability, to be used only, as I said, as a backstop in these circumstances, and with the hope that they will never need to take that forward.

Strikes (Minimum Service Levels) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Thursday 23rd March 2023 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I will speak to the amendments in the group starting with Amendment 14 in the name of my noble friend Lord Fox. This group is all about devolution. The Government have hyped up their commitment to devolution in England, so Amendment 14 is in line with the proposals in the levelling-up Bill and in Bills on the powers of existing mayoral authorities. In England, an increasing number of those have great powers over transport—for example, bus franchises—so it is logical that elected mayors should be consulted by the Government before they intervene with minimum service levels.

I move on to Amendments 19 and 49 in my name, which refer to the much stronger devolution that has existed in Wales and Scotland and, we hope, will be returned in Northern Ireland in due course. Amendment 19 refers to Part 1 of the Schedule, which relates to minimum service level regulations that may be applied by UK Government Ministers to the list of services specified in the Bill. The key point is that most of these services—health, fire and rescue, education and most of transport—are devolved. Only the decommissioning of nuclear installations, management of radioactive waste and so on, and border security are reserved matters falling to the UK Government. Once again, we have this Government riding roughshod over the core business of devolution. Even border security could be argued to be a very legitimate interest to the devolved Administrations. For example, the Welsh Government owns and runs Cardiff Airport, and that would clearly be directly affected if there were a dispute with border security staff. Similarly, the safe and efficient operation of the several very important and significant Welsh ports is of direct concern to the Welsh Government. In practice, you could not impose a minimum service level without consultation and close co-operation.

I need to point out here that the Welsh Government have a much more positive relationship with public sector trade unions than that between the UK Government and trade unions in England. Although they have not totally avoided strike action in Wales recently, it has certainly been much less intense and acrimonious. The Welsh Government have adopted more of a social partnership approach, and we have seen none of the provocative rhetoric that we have seen in England.

Amendment 19 is very modest: it simply asks for an obligation for proper consultation with Welsh and Scottish Ministers before regulations are made. It reflects similar provisions in the Civil Contingencies Act 2004. It specifies that a senior Minister of the Crown should undertake this consultation because we have lately had repeated evidence that this Government have failed to interact at the appropriate level with Ministers in the devolved Administrations, whom they seem, on occasion, to regard as insignificant juniors. Very recently, in the debate on the retained EU law Bill, we were repeatedly referred to officials as the appropriate level for such links. If the UK Government decide to intervene to specify minimum service levels for devolved services, that is a political decision, and the very least that they should do is ensure that Ministers take the lead in that political process.

Quite apart from the need to respect devolution, there is considerable scope for confusion if the UK Government decide to define what they regard as an MSL without close liaison with the devolved Administrations. Let us take health as an example: waiting times for treatment are defined differently in Wales and England, as are ambulance response times, so one size definitely does not fit all. The very simple Amendment 49 takes a much more radical approach. By leaving out “Wales and Scotland”, it would limit the extent of the Bill to England. That would reflect the points that I made previously: most of the public services specified are devolved, and even those which are not have a close interaction with devolved services.

During the pandemic, for instance, we became acutely aware of the differences in organisation and ethos between the UK Government’s approach and that taken, for instance, in Wales, but which I also observed in Scotland. There are plenty of stresses in the delivery of Welsh public services. I do not defend the current standard of some of those. They are under acute stress. If this comes to a head in the form of strikes, it is unlikely that dictation from the outside by the UK Government will help the situation.

Finally, I remind noble Lords that the UK Government are just the Government for England when we talk about strikes in schools or in the NHS, for instance, and other services specified in the Bill.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I speak in support of Amendment 49. All the points arise in relation to it, so I do not think it necessary to go into the other amendments. I will make six points.

First, I do not believe that it is contested that a number of the services covered by the Bill are effectively within the control of the Governments of the nations of Scotland and Wales, and that is reflected everywhere in the consultation that has so far been made. However, when you take that, you have to consider whether you can disentangle services during periods of strikes from services elsewhere. On our previous day in Committee, the noble Lords, Lord Kakkar and Lord Patel, eloquently put why it is quite impossible to disentangle them. What I simply do not understand at the moment is why, if you have a minimum standard on a strike day, that is not the minimum standard across all these areas on every other day. How can the public be expected to think that in strikes there is a minimum standard? There is not.

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[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I thank the noble Lord, Lord Fox, and the noble Baroness, Lady Randerson, for their amendments. Amendments 14, 19 and 49 relate to devolved matters, either via devolved Governments or local government. Amendment 14 seeks to require the consent of elected mayors before minimum service levels could be set in an area for which an elected mayor is responsible. The noble Baroness, Lady Noakes, is right to point out that this is unworkable. Consultations have been published on minimum service levels for ambulance, fire and rail services, and we welcome the engagement of elected mayors on those consultations. Similarly, Amendment 19 seeks to require consultation with Scottish and Welsh Ministers before minimum service level regulations are made in Scotland or Wales, with a view to reaching an agreement. Amendment 49 seeks to limit the territorial extent of the Bill to England.

The noble Baroness, Lady Randerson, raised concerns about the impact of this legislation on devolution, and this is an important issue. However, employment rights and duties and industrial relations are reserved in Scotland and Wales. That said, I reassure her and the noble and learned Lord, Lord Thomas of Cwmgiedd, that my noble friend the Minister met both the Welsh and Scottish Governments to discuss the Bill.

The Government have a duty to protect the lives and livelihoods of citizens across the United Kingdom. The disproportionate impacts that strikes can have on the public are no less severe on people in Scotland and Wales or on those living in areas with elected mayors. 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 therefore resist these amendments. However, as I said earlier, nothing in the Bill requires an employer, which might include a devolved Government or an elected mayor, to issue a work notice. That would include the example of Cardiff Airport that the noble Baroness cited.

[Lord Thomas of Cwmgiedd (CB)]

On that point, which is repeatedly coming up, would the noble Baroness be able to assure the Committee that we can have a clause in the Bill—because courts sometimes interpret “may” as meaning “shall”—that makes it very clear that no legal obligation whatever rests on any person whatever to implement the minimum standards set out in the Bill, unless the employer decides to implement a notice? If the case the Government are making is that the Bill has no effect unless the employer does something, that needs to be spelled out with crystal clarity. If the Ministers would like, I will have a go at drafting a clause to save the overburdened so-called parliamentary counsel.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I repeat at the Dispatch Box that under the Bill it is a statutory discretion and not a statutory duty for employers as to whether to issue a work notice. It is a matter for the employer to consider any contractual or other legal obligations it has in taking this decision.

We of course hope that all employers will want to apply minimum service levels where they are needed. In reference to the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, I say that, before making minimum service level regulations, government departments need to consult on the appropriate minimum service for their sectors. This will enable detailed evidence to inform the development of minimum service levels in specific services. This includes understanding the differences between services in each sector across Great Britain and the implications for setting minimum service levels. We will continue to engage with the devolved Governments on the geographical scope of the regulations.

The noble Lord, Lord Collins of Highbury, is correct that of course we would rather have a negotiated agreement on minimum service levels. I also reiterate, in response to the question from the noble Baroness, Lady Finlay, on why my noble friend was shaking his head, that we think there has been a misunderstanding. There is no statutory duty but, as I said, rather a statutory discretion under the Bill for employers to issue work notices.

Strikes (Minimum Service Levels) Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Wednesday 26th April 2023 Lords Chamber

Moved by

[Lord Thomas of Cwmgiedd]

3: The Schedule, page 4, line 40, at end insert—
“234CA Work notices: further provision(1) In the event that the Secretary of State makes minimum service regulations under section 234B—(a) no obligation is imposed on any employer to give a work notice under section 234C;(b) no person may direct any employer to give a work notice under section 234C.(2) If an employer determines that they will not give a work notice under section 234C—(a) no liability whatsoever shall attach to the employer or to any other person in respect of that decision;(b) no proceedings may be brought in any court in respect of that decision.”Member’s explanatory statement
This new clause is intended to make clear that the decision to issue a work notice is entirely within the employer’s discretion. The employer is therefore under no obligation to give a work notice and, if the employer determines that they will not give a work notice, the employer is under no liability to anyone and the decision cannot be challenged in court.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will move an amendment on a very short point and I am grateful for the support of the noble Lord, Lord Allan of Hallam. The schedule to the Bill sets out the procedure for giving a work notice and the Explanatory Notes say that it is intended to show

“how work notices are to operate”.

Subsection (7), for example, requires consultation with the unions. However, the critical point which emerged in Committee was the nature of the obligation on an employer to give a notice. Did the employer have to issue a notice? Was it entirely voluntary or was there something subtle in the middle? It all turns on the meaning of “may”—a good point for a lawyer possibly to take.

It is accepted that “may” does not mean “must”, although sometimes courts interpret “may” as meaning “must”. The question arose as to whether it meant that an employer was free to decide voluntarily what to do, given the impact it might have on his relations with the staff, or whether the position was more complex. I drafted Amendment 3 to make it clear that it was to be entirely voluntarily and sent it to His Majesty’s Government. Their response on “may” was clear. The Government’s letter said:

“The Bill does not place any direct obligation on an employer to issue a work notice. Rather, it gives employers a statutory discretion whether … to do so. This is right given that they are closer to the day-to-day operation of their services”.


It went on to explain the complexity, saying that

“where an employer is a public authority, they will need to consider their overarching public law duties. Employers will also need to consider if they have any contractual or other legal obligations that they need to comply with”.

There is no point in debating whether His Majesty’s Government are right in the interpretation of “may”; that must be for the courts to decide. But let us assume they are. There are a number of consequences. First, there is a process to be gone through by the employer—although it is not in the Bill, despite what the Explanatory Notes say. Secondly, if an employer has contractual obligations, it will have to examine what those are. If an employer is a public body, it would have to consider its public law duties, spelled out in legislation and government directions. As regards public law, it would no doubt be prudent to consult the relevant Government.

The employer would then have to weigh up the damage the notice might cause to staff relations and the provision of services in the future. There might be other considerations. It will be a difficult decision for employers in England and they might be pressurised, either by an injunction or a judicial review. We must emphasise that the courts are now likely to come into this.

In Wales and Scotland—assuming the Bill applies to them—there would be a further layer of uncertainty because they would be subject to Welsh and Scottish primary legislation and the views of their Governments. How could it be expected that public bodies in those two nations and devolved areas should be responsible for working out what their duties were?

I had hoped for one of two things: either the Government would accept my amendment—but it is plain they will not—or they would set out the considerations and put them into the statute. But they have not done that either.

I will therefore move this amendment, but I do not intend to seek the opinion of the House for two reasons. First, if His Majesty’s Government are right on the meaning of “may”, there really are contentious points of law for the courts in defining the employer’s obligations in the different contexts of hospitals, teachers and railways. This is most unfortunate. Secondly, the Bill should be clear and spell out the decision in the way the Explanatory Notes said it should be done but, as I said in Committee, this Bill is the epitome of legislation first, policy second—a total reversal of the proper policy. I beg to move.

[Lord Allan of Hallam (LD)]

My Lords, I support the amendment in the name of the noble and learned Lord, Lord Thomas, to which I have added my name. A benefit of the Committee stage in this House is that it allows us to identify concerns that may not have been apparent when a Bill was first introduced. It is through that process of analysing how legislation will work in practice, informed by the experiences that noble Lords bring to this place, that we can flush out those unintended consequences. On a good day, the House having flagged something that is a reasonable area of concern, the Government will provide us with clarifications that show that our fears are misplaced and that all will be well. On a really good day, a Minister will acknowledge that we have identified a genuine problem and set out a path to fix it. We have just had an example of that on the previous amendment.

I believe we have done our job and identified a real gap here between the Government’s rhetoric that employers will not be mandated to issue work notices and what may happen in practice, yet the Government have so far failed to provide either a clarification that our concerns are unfounded or an acknowledgement that we have identified a real issue that they intend to fix before the Bill becomes law. In this amendment we are presenting a way to demonstrate the kind of fix that we think is needed, not to undermine the Government’s intentions in respect of the legislation writ large, but rather to ensure that it works as they themselves have said they wish to happen.

My concern is quite specific. It is that employers will be advised that they expose themselves to significant legal risk if they do not issue work notices, even where they feel that they would be counterproductive to their efforts to negotiate with their employees. The circumstances under which they may feel this compulsion are not fantastical but all too apparent if we look at broader trends in litigation. We do not have to stretch our imagination too far to see somebody suing an NHS body that chose not to issue work orders, alleging that their treatment could have been delivered if it had; a student taking action against an educational institution on the basis that it did not order teaching staff to turn up during strike days; or businesses suffering disruption as a result of transport strikes going after train operators, claiming that more service could have been provided.

Some noble Lords may have sympathy with this approach and think, “Good; if employers feel compelled to issue work orders, the Bill is working”, but the Government have said repeatedly that the work order should be voluntary and that this is not what they intend. If they wish to make work orders compulsory, they should have the honesty to say that in the Bill. They would be de facto mandated because of the threat of litigation, and if the Government do not wish that to happen, they should agree to our amendment to make that clear to employers.

It seems far from ideal to leave this confused, with the extent of compulsion in practice decided on the basis of an assessment of the threat of legal action. I fear that the Government will argue, as the noble and learned Lord, Lord Thomas, has already indicated, that this is an acceptable state of affairs and that they do not intend to change the legislation, but I hope that noble Lords will see the force of our arguments and will support Amendment 3.

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[Lord Callanan (Con)]

My Lords, I thank the noble and learned Lord, Lord Thomas, for his constructive engagement on this matter. He wrote to us about it and has had a reply, so he knows the Government’s position. We believe that the current drafting of the legislation strikes the right balance so that, while employers have the statutory discretion to issue a work notice, they also have to consider any other existing legal duties that they may have—for instance, contractual, tort or public law duties. My concern is that the amendment would enable employers to act without due consideration to such duties, as it effectively seeks to remove any legal consequences for not issuing a work notice.

The decision to issue a work notice should be objective but, despite what the noble Lord, Lord Allan, and the noble and learned Lord, Lord Thomas, have said, the amendment would then enable subjective, and potentially political, factors to influence that decision.

It would be likely—and I suspect this is the intention of the movers—to lead to many fewer work notices being given where they were needed, leading to minimum service levels not being met in more cases, but the reason for this legislation is that the Government do not believe that is in the best interests of service users or the public. I therefore maintain the position that I took in Committee and resist the amendment on that basis. I hope the noble and learned Lord will withdraw it.

[Lord Thomas of Cwmgiedd (CB)]

It is disappointing that the Government will not put in the Bill what the position is. The word “may” is too ambiguous. I am afraid we may be back to the kind of thing that happened 50 years ago, as we are seeing a large number of disputes go to a successor—the ordinary courts, this time—to the National Industrial Relations Court, and that was not a happy outcome for anyone. But the Government have taken their stand. I do not wish to press this to a Division and I therefore beg leave to withdraw the amendment.

Amendment 3 withdrawn.

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Moved by

[Lord Thomas of Cwmgiedd]

6: Clause 3, page 2, line 9, leave out from “Act” to end of line 11 and insert “of Parliament.
(6) This section does not apply to—(a) an Act or Measure of Senedd Cymru, or(b) an Act of the Scottish Parliament.”Member’s explanatory statement
This amendment would mean that the power of United Kingdom Ministers to amend primary legislation does not apply to Acts of the Scottish Parliament or Senedd Cymru.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I shall speak to both Amendment 6 and Amendment 7— Amendment 7 being the more important. I am grateful to the noble Baronesses, Lady Randerson and Lady Finlay of Llandaff, and the noble Lord, Lord Collins of Highbury, for supporting these amendments. I have tabled these amendments because this Bill, in its application to Scotland and Wales, is impractical, undemocratic and will make the services there worse. Let me briefly explain each of those points.

First, on impracticality, the main services—that is health, education and ambulance services—are all devolved. It simply is not practical for the Secretary of State for Health or the Secretary of State for Education, as advised by their departments in England, to deal with the position in Wales and Scotland. They do not deal at all with health and education in Wales or Scotland. They are run differently, on a basis of very different legislation to that in England. Let me explain why by reference to Wales.

As to health, under Welsh legislation it is the Welsh Ministers who give direction to the employers—the local health boards and trusts—about their functions. It is Welsh Ministers who have a role in setting pay and conditions in accordance with Welsh regulations and directions and the priorities of the Welsh Ministers.

As to ambulance services, these are run in Wales under the direction of a joint committee of health board chief executives, which has commissioned the Welsh Ambulance Services NHS Trust to run the services for the whole of Wales. Those same health board chief executives are appointed by Welsh Ministers, who are of course accountable to the Senedd. How can an English Minister set minimum service levels for Wales and interfere in this structure when the Minister and the department have no basis whatsoever for doing so, no interest in the policy, no interest in the priorities and do not really understand either the demographics or geography of Wales.

As to education, in Wales it is the local authorities that, with the governors, employ the staff. There are substantial differences in structure: there are no academies in Wales; funding, unlike in England, is not hypothecated; and minimum qualifications for teachers are different. Pay and conditions are set by the Welsh Government for the needs of the curriculum in Wales which, quite apart from bilingualism, is different to that in England. How can a Minister who knows all about education in England, yet has not been able to work out a policy for minimum service levels, set minimum service levels for education in Wales, about which the Minister knows absolutely nothing?

Overall, the position of the employers who have to decide whether to give a work notice in Wales and Scotland will be different to that in England. I have already set out the difficulties in dealing with Amendment 3. They will have to take into account different public law duties under different legislation, and the views of the Governments of Wales and Scotland, who have the power to give directions. Again, one can see a wonderful field day for lawyers.

Secondly, in my view, it is wholly wrong and contrary to basic democratic and constitutional principles for this to apply in Wales and Scotland. The responsibility for dealing with these services is not that of the UK Government but the Welsh and Scottish Governments under the legislation applicable in those nations. The Governments there were elected to run these services and are wholly responsible and accountable to the electorate for them. The English Government—the UK Government—are not accountable. It is therefore wrong in principle to undermine that accountability and democratic choice.

This is underlined by the refusal yesterday of the Senedd to give legislative consent. His Majesty’s Government will argue that the refusal is irrelevant, as it is not a matter for the Senedd or the Scottish Parliament because the Bill concerns a reserved matter, industrial relations. With the utmost respect to government lawyers, that is nonsense: the Bill is not about industrial relations but about devolved services. As has been explained, there is a fundamental failure to understand what the Bill is about. Secondly, the Senedd is the body democratically accountable for services, not the UK Government. Therefore, unless amended, this will be another piece of legislation where the Sewel convention is ignored. I have spoken of this before, but it is now being ignored at the heart of devolution, in services that have been run in Wales and Scotland for a very long time.

Thirdly, it will make matters worse for the people of Wales and Scotland by undermining the ability of the Welsh and Scottish Governments to manage their own relations with their staff and employees. The management of those relationships is different from, and has generally been more successful than, that of the Government responsible for England. Applying the Bill to Wales and Scotland is effectively taking away power from those who have responsibility for the management of the relationship, for the negotiations and for the setting of pay and conditions. It will undermine their ability to do this successfully. It is simply an arrogation of powers in matters over which the Government in England have no responsibility. Power without responsibility is a recipe for disaster for the people of Wales and Scotland, for which the Government, in respect of these services, have no responsibility at all.

In summary, the UK Government, which are under the law responsible only for health, ambulances and education in England, should not be interfering in areas for which they have no responsibility in Scotland and Wales. It is impractical, wrong in principle and makes no sense. The real problem is that this is yet another attempt to undermine devolution and give strength to those who wish to see the union weakened.

[Baroness Randerson (LD)]

My Lords, the noble and learned Lord has spoken very powerfully and comprehensively on this, and I am delighted to offer my support on both these amendments, which reflect how badly written this Bill is. It reflects a Government in a temper tantrum in the face of a period of determined and effective trade union action. I can hear government Ministers stamping their feet in a fit of rage and the result is this badly drafted Bill.

The report of the Select Committee on the Constitution condemns the Bill for being “skeletal” and declares that the concept of minimum services levels is insufficiently specified. This problem is particularly acute in relation to the devolved Administrations, because it is surely up to them to decide what minimum service levels should apply in their own countries in their own circumstances.

I will give two very concrete examples. First, in relation to health services, ambulance response times might quite reasonably be very differently specified in Wales and Scotland because in the Highlands of Scotland and rural mid-Wales the distances travelled are massive. Secondly, if you look at Welsh-medium education, dare I say it, it is unlikely that a UK Minister would even understand the minimum service levels they would have to specify. It is totally inappropriate that it should be in their hands.

At the heart of these amendments is the fact that most of the services specified are, of course, devolved and have a close impact on devolved services at the very least. Education, health, fire and rescue and most transport services are in the hands of the devolved Administrations, which are democratically accountable for the running of those services, yet the UK Government want to intervene in that relationship. That intervention will inevitably sour employer-employee relationships and inevitably mean worse services for the people of the countries concerned.

It will create a seriously muddy situation. Minimum service levels should be down to the democratically responsible Governments concerned, and in these services that is the devolved Governments. The muddy waters will be even more troubled by the information referred to earlier in Amendment 3 from the noble and learned Lord, Lord Thomas, that in practice employers will have to issue work notices in order to avoid being sued.

So, we have employers in devolved Administrations working to the devolved Governments which are going to have to act in response to UK Government actions. This is not practical, so for all these reasons I believe the Government need to draw a halt to their many steady and determined attempts to undermine devolution, and this Bill needs to apply only to England.

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[Lord Callanan (Con)]

My Lords, Amendments 6 and 7 relate, as has been said, to the devolved Governments. Amendment 6 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 Cymru. This amendment was previously tabled in Committee, and no one will be surprised to know that the Government’s position remains unchanged.

As I have previously stated, the powers in Clause 3 can be exercised only to make amendments that are necessary to give effect to the Bill; they are therefore truly consequential. Employment rights and duties and industrial relations are reserved in respect of Scotland and Wales. It is therefore right that the Secretary of State has the power to make consequential amendments to primary legislation made by the Scottish Parliament or Senedd Cymru, if required, to ensure that the new legal framework operates in a coherent way across the whole of Great Britain. As always, the Government will engage with the devolved Governments as appropriate should consequential amendments be required to Acts of the Scottish Parliament or the Senedd Cymru.

Amendment 7, meanwhile, seeks to limit the territorial application of this Act to England. The noble Baroness, Lady Randerson, tabled a similar amendment in Committee, and the Government continue to resist this change for the same reasons that I set out then.

As has been said numerous times in this debate, once regulations for minimum service levels are in force for a specified service, if a trade union gives notice of strike action, it is then the employer’s decision whether to issue a work notice ahead of the strike, specifying the workforce required to achieve the minimum service level for that strike period. If the employer is the Scottish Government or the Welsh Senedd, it is their decision whether or not they use this legislation. Of course, we hope that all employers will want to do so where needed —as was said in relation to the amendments of the noble and learned Lord, Lord Thomas, employers must consider any contractual, public law or other legal duties that they have—but the Bill does not contain a statutory requirement to do so. No one is forcing them to use this legislation.

We will, as we have done throughout this legislation, continue to engage with the devolved Governments as part of the development of minimum service levels in those areas and the consultations that would be required that are informing these decisions. The Government have a duty to protect the lives and livelihoods of citizens across Great Britain. The disproportionate impacts that strikes can have on the public are no less severe in Scotland or Wales, and the people there have every right to expect the Government to act to ensure that they can continue to access vital public services, which they pay for, during strike action.

I hope—again, perhaps without too much optimism—that noble Lords will therefore feel able not to press their amendments.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I considered whether to press both amendments to a Division, but it seems to me that the critical one is Amendment 7. If the Act is not applicable to England, Amendment 6 is, in effect, consequential and falls away. I therefore intend to withdraw Amendment 6 but will ask to test the opinion of the House on Amendment 7.

There are two fundamental reasons for that. First, it is essential that we do not undermine devolution. The devolution Acts give the responsibility for services to the devolved Governments. If the devolved Governments fail to deliver those services, they can be booted out at the next election. That is democracy, which I had hoped this Government believed in.

Secondly, the argument that the Minister has put forward—that the Governments in Wales and Scotland are the employers and can themselves determine whether the notices should or should not be given—is misconceived. As I sought to say, they are not the employers. The employers are the trusts and the local authorities. Probably wrongly, I did not press Amendment 5, but the Government now have to bear the consequence.

If they had agreed to my amendment, the point the Minister made might be a good one—but they did not. The consequence is that it is not up to the Governments of Scotland and Wales. They will have interests and points to make, just as no doubt the UK Government will have to the English authorities. But, ultimately, it will be for the employers. Therefore, this is an outright interference in the running of services in Wales and Scotland. They are at the heart of devolution. This, if anything, proves that what this Government want to do is undermine devolution and thus weaken the union. I will therefore press Amendment 7 in due course, and in the meantime I beg leave to withdraw Amendment 6.

Amendment 6 withdrawn.

--- Later in debate ---

Moved by

[Lord Thomas of Cwmgiedd]

7: Clause 4, page 2, line 13, at end insert “but applies only to England”
Member’s explanatory statement
This amendment would limit the application of this Act to England.

[Lord Thomas of Cwmgiedd (CB)]

I wish to test the opinion of the House on Amendment 7.

Strikes (Minimum Service Levels) Bill

Lord Thomas of Cwmgiedd Excerpts

3rd reading
Tuesday 9th May 2023 Lords Chamber

The Bill comes at a critical time for our country, where continued industrial action is having a real, material impact on the public up and down the country. That is why the Bill was introduced. The Government still believe that the Bill gets the balance right between the right to strike and the rights of the public to go about their daily lives unencumbered by industrial action.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make two points. First, I thank the Minister and his colleague for their great courtesy in discussing various points. Secondly, I hope we learn something from this Bill. It is a simple lesson: this is not the way to legislate.

[Lord Fox (LD)]

My Lords, as the noble and learned Lord has just said, this Bill arrived in your Lordships’ House in a flawed state. It sought to bypass Parliament and the devolved legislatures, with the aim of implementing a system where the Secretary of State—they alone—could implement service levels that, in effect, make strikes illegal, exposing individuals to the risk of being fired for striking. Thanks to the hard work of your Lordships’ House, it goes back to the other end somewhat improved.

I thank the Minister for his tolerant acceptance of the debate, which I know at times he found difficult. Thanks go to the noble Baroness, Lady Bloomfield, and the Bill team, who have had to sit through all of this. A number of Cross-Benchers spoke in the debates. I pick out particularly the noble and learned Lords, Lord Hope and Lord Thomas, the noble Lord, Lord Kerr, the noble and right reverend Lord, Lord Sentamu, and the noble Baroness, Lady Meacher, and thank them for their commitment. On the Bishops’ Bench, I thank the right reverend Prelate the Bishop of Guildford. His contribution was very important, as were those from the noble Lord, Lord Wigley, and the noble Baroness, Lady Jones.

I thank His Majesty’s loyal Opposition for their contribution. I think we worked together very well, particularly with the noble Baroness, Lady O’Grady, and the noble Lord, Lord Collins, but I thank all who spoke. On these Benches, our team, including the noble Lord, Lord Allan, and the noble Baroness, Lady Randerson, gave fantastic support. They gave your Lordships very strong reasons as to why the Bill has to change. I thank Sarah Pughe in our Whips’ Office for the hard work she is doing.

When the Bill comes back, I am sure we will re-engage. I hope the team I have just listed, and others, will reconvene in the event that the Government do not see the wisdom of their ways.

Strikes (Minimum Service Levels) Bill

Lord Thomas of Cwmgiedd Excerpts

Consideration of Commons amendments
Thursday 8th June 2023 Lords Chamber

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

My Lords, with the leave of the House I will also speak to Motion B. I will speak to both the Motions to not insist on these amendments and to resist Motions A1 and B1, which are amendments in lieu tabled by the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Fox.

I am delighted to be in the Chamber again following the consideration of this House’s amendments to the Bill in the other place. Although there was a thorough debate of these amendments and those we will look at next, they have been thoroughly rejected by the other place, which has resolved against amendments that would either delay implementation of the Bill or prevent it from achieving any of its policy objectives.

I recognise that this is a topic that Members of both Houses are passionate about and I agree with my colleague, the Minister for Enterprise, Markets and Small Business, that we have had a robust debate on it. However, I point out to the House that the other place resolved against these amendments by significant majorities of 61 and 55 respectively, which are significantly larger than the majorities of 24 and 31 that amended the Bill in the first place. That is also the case for the amendments that we will discuss in the next group. The elected Chamber has therefore given the Bill and the amendments made here its due consideration and Members there have made the position of their House very clear.

The House will be delighted to know that I do not intend to repeat the debate and the arguments that we have heard on the detail of the Bill here; the Government have already clearly set out their intentions and perspective here, which are reflected in the reasons for disagreement that have come back to us. The Government’s position, and that of the elected Chamber, is clear and I can confirm that the Government have no plans to concede on these issues given the ongoing industrial disputes that show the need for this Bill now more than ever. I therefore ask that noble Lords respect the clear wishes of the other place and, while of course I am always grateful for noble Lords’ insight, passion and expertise on this matter, I hope that this House does not insist on these amendments.

I will now address the amendments in lieu that have been tabled. I thank the noble and learned Lord, Lord Thomas, for his Motion A1, which seeks to limit the application of this Bill to England only, unless the Scottish Parliament and Senedd Cymru agree by resolution for it to apply in those nations. The noble and learned Lord submitted a similar amendment on Report and the Government continue to resist this change for the reasons that I set out then.

First, it is a statutory discretion for the employer as to whether to issue a work notice, taking into account any other legal requirements that the employer may have. However, more fundamentally, the purpose and substance of the Bill is to regulate employment rights and duties and industrial relations. This is a reserved matter, so the consent of devolved Parliaments for this legislation is rightly not required. To add in a requirement for this, as the amendment seeks to do, would create significant inconsistency with wider employment law and I suggest that it would also disturb the careful balance of the UK’s devolution settlement. We will of course, as we have throughout the passage of the Bill, continue to seek to engage with the devolved Governments as part of the development of minimum service levels in those areas.

Finally, Motion B1, tabled by the noble Lord, Lord Fox, relates to additional consultation requirements, assessment of impacts of the legislation and parliamentary scrutiny. As has been made clear to this House many times, sufficient checks and balances are already built into the legislation before regulations can be made. Motion B1 would delay implementation of minimum service levels for an indefinite period and thus extend the disproportionate impact that strikes can have on the public. I am afraid that the Government simply cannot accept that.

This Government recognise the significant role that the UK Parliament has played in scrutinising instruments. New Section 234F already ensures that the regulations will receive the appropriate level of scrutiny by both Houses and are subject to usual processes for consultation. I therefore urge this House not to amend the Bill in such a way that would cause significant delay to implementing minimum service levels, use up precious parliamentary time to duplicate parliamentary procedures and set some unhelpful precedents for future legislation. For all those reasons, the Government resist Motions A1 and B1 and I hope that noble Lords will agree not to press them. I beg to move.

Motion A1 (as an amendment to Motion A)

[Lord Thomas of Cwmgiedd]

Moved by

At end insert “and do propose Amendment 1B in lieu—

1B: Page 2, line 13, at end insert “but applies only to England unless—(a) the Scottish Parliament resolves that it should apply to Scotland from a date specified in the resolution, in which case it so applies, and(b) Senedd Cymru resolves that it should apply to Wales from a date specified in the resolution, in which case it so applies.””

[Lord Thomas of Cwmgiedd (CB)]

My Lords, as this is the first occasion on which a devolution issue has arisen this week, let me make one short observation about the enormous contribution that Lord Morris of Aberavon made to devolution and to using and utilising devolution within the context of the United Kingdom. He can truly be regarded as a father of Welsh devolution and he made an enormous contribution to strengthening the position of Wales within the union.

I turn to my Motion. There are six brief points that I wish to make—and they will be brief, I must emphasise. First, this is not a reserved matter; I fundamentally disagree with the position stated by the Government. If we look at the reality of this Bill, it is not to do with employment rights; it is plainly to do with services in Wales and Scotland. Indeed, it covers the most important services that are devolved. The legislation therefore did require a Sewel Motion and, as we know, that has not been forthcoming.

Secondly, the fact that the Government are prepared to legislate without observing the Sewel convention is, I regret to say, another illustration of the ignoring of this convention and, more generally, the Government’s action in ignoring conventions that underpin our unwritten constitution, putting it in danger. Actions of this kind are imperilling the union, which is the bedrock of our constitution.

Thirdly, and more fundamentally, what is being done is undemocratic. The Scottish Parliament and Senedd Cymru are responsible and accountable for the very services for which this legislation is being brought forward.

Fourthly, the extension of this Bill to Wales and Scotland is bad for the people of Wales and Scotland. If we look at this as a matter of practical reality, the UK Government are the Government of England in respect of these services. They know nothing about education, health, ambulances or the fire service in Wales, or the relationships with staff and employees and how the services run. It is structured differently in England from how it is structured in Wales and Scotland.

Fifthly, I think that it is disingenuous again to say that employers in Scotland and Wales can choose whether to give a work notice. As the Minister in the other place made clear, it is not in the Government’s view a free choice. Employers must consider contractual public law and other legal duties that they have. If this Government’s view is right—I do not agree with it—there is the unspoken consequence of legal action against those who fail in their duties. That is a real threat to the Governments in Scotland and Wales and their ability to manage a service in a way that is in the real interests of the people.

Sixthly, and finally, what this Bill does, in applying its provisions to Scotland and Wales, is to take away power from those who have a responsibility for the management of the relationship and who are accountable to their electorate.

However, on this issue of devolution, the Government —as the Minister made clear just now—have not moved, and plainly do not intend to move, an iota. They maintain their characteristic disdain for devolution. They continue to legislate to override the devolution arrangements. I think that it can be said that they believe with a singular superiority that they know better what is right for Wales and Scotland than their democratically elected Governments and Parliaments do. They seem not to care for the long-term consequences of this persistent conduct.

For these reasons, although it is regrettable for our constitution, union and democracy, unless others urge me to take a different view, I see no point in seeking to divide the House on issues on which the Government do not appear to wish to engage. By using their majority in the other place, they can impose their will on Scotland and Wales, which the Governments and Parliaments of Scotland and Wales do not want.

[Lord Wigley (PC)]

My Lords, I will intervene very briefly, as I did at earlier stages of the Bill, having taken good note of the comments made by the noble and learned Lord, Lord Thomas of Cwmgiedd.

I press on the Government the question of the definition of reserved powers. This goes broader than this amendment and may be something that needs to be looked at in another context, in its own right. Under those circumstances, I accept the lead that has been given by the amendment of the noble and learned Lord, Lord Thomas, and I hope the Government keep the issue alive in their mind.

--- Later in debate ---

[Lord Callanan (Con)]

My Lords, I thank all those who have contributed. The House will be pleased to know that I do not intend to detain noble Lords for very long. We have debated these matters extensively on a number of occasions in a very rigorous manner, so I do not intend to repeat all the arguments. But, let me just say very briefly, particularly in response to the noble and learned Lord, Lord Thomas, that we are certain that the minimum service levels are a reserved matter. They are reserved because they obviously apply only when there are strikes, which fall within employment rights and industrial relations. This is clearly a reserved matter under each of the devolution settlements for Scotland and Wales. Put another way, the Bill amends the Trade Union and Labour Relations (Consolidation) Act 1992, the subject of which is specifically reserved under each of these settlements. I always hesitate to disagree with distinguished lawyers on matters of law but I am afraid that we just have a different opinion on this.

I addressed the points from the noble Lord, Lord Fox, in my opening remarks and will not repeat that. I acknowledge all those who have spoken. I understand the strength of opinion in the House on this but once again I point the House towards the other place—the elected place—and the clear will it has expressed on these matters. I urge the House not to prolong this matter unnecessarily and, while it looks as though we are going to vote on the Motion from the noble Lord, Lord Fox, I am grateful that the noble and learned Lord, Lord Thomas, indicated that he would not be dividing the House.

[Lord Thomas of Cwmgiedd (CB)]

I beg the House’s leave to withdraw my Motion.

Motion A1 withdrawn.