Draft Important Public Services (Education) Regulations 2017 Draft Important Public Services (Transport) Regulations 2017

Margot James Excerpts

Tuesday 31st January 2017 General Committees

[The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Margot James)]

I beg to move,

That the Committee has considered the draft Important Public Services (Education) Regulations 2017.

[The Chair]

With this it will be convenient to discuss the draft Important Public Services (Transport) Regulations 2017.

[Margot James]

It is a great pleasure to serve under your chairmanship, Mr Evans.

The Trade Union Act 2016 modernises the UK’s industrial relations framework to better support an effective and collaborative approach to resolving industrial disputes. The Act restores a level of fairness to our industrial relations regime and gives effect to the Government’s manifesto commitments. It ensures that strikes can happen only as a result of a clear positive decision by those entitled to vote, balancing the interests of unions with the interests of the majority of people who rely on important public services.

[Neil Gray (Airdrie and Shotts) (SNP)]

The important public services that we are discussing today—education and transport—are devolved competences. What consultation has there been with the Scottish Government?

[Margot James]

I will come back to that point, if the hon. Gentleman permits.

The Act received Royal Assent in May 2016. Today we are debating two statutory instruments that implement a 40% threshold for ballot mandate approval for important public services in the education and transport sectors. As well as the requirement that 50% of union members who are eligible to vote do so, 40% of all eligible members will have to agree with the proposed mandate. We propose that the 40% threshold for the two sectors comes into force on 1 March.

[Chris Stephens (Glasgow South West) (SNP)]

The Minister will know that during the passage of the Trade Union Bill, there was some debate on other aspects of balloting, such as electronic balloting. What is the Government’s direction of travel on e-balloting and secure workplace balloting?

[Margot James]

I can certainly deal with the issue of e-balloting. The Government committed to undertake a review of the potential for e-balloting in advance of strike action. A review has been established under the chairmanship of Sir Ken Knight and it will report by the end of the year.

We propose that the 40% threshold comes into force on 1 March. At the same time we will bring into force a number of other provisions in the 2016 Act, including a 50% turnout threshold for those who are eligible to vote, as I mentioned; additional information to be provided about the result of any ballot; two weeks’ notice of industrial action to be given to employers; new requirements to manage picketing and new reporting requirements. That ensures that the key changes to the way official industrial action is decided on and implemented are prioritised and come into effect as a package.

The purpose of the ballot thresholds is to rebalance the ability of union members to strike with the interests of the general public, non-striking workers and employers. The 2016 Act takes proportionate action to redress the balance and ensure that unions in the education and transport sectors have a strong democratic mandate before they take strike action. The impact of strike action is most severe when it takes place in the important public services that people and businesses rely on every day, particularly when people are left with no real alternatives. That is particularly unfair when strike action goes ahead with no evidence of strong support from a unionised workforce. That is why we have introduced a 40% approval threshold to apply to important public services such as education and transport, in addition to the requirement for a 50% turnout overall.

[Alison McGovern (Wirral South) (Lab)]

For the sake of full disclosure, will the Minister say what her own approval threshold was and what percentage of her own electors voted for her?

[Margot James]

As I do not dwell on my own electoral circumstances, I cannot give an absolutely accurate answer to the hon. Lady’s question. However, I do not regard that as a parallel. That sort of question was raised when we debated the Bill last year. Everybody gets a say in the election of an individual MP to represent a constituency. It is not just a vote for one or another candidate; a range of candidates are on offer. Everyone who is going to be affected by the eventual outcome of such an election gets a say. In the cases we are describing, the non-striking workforce and—more important for this argument—the public, who require and depend upon these services, as they do in the hon. Lady’s own constituency, get no say whatsoever.

This is an attempt not to deny strike action or the validity of it, but to rebalance the interests involved. That is why we have introduced a 40% approval threshold to apply to these important public services, in addition to the requirement for a 50% turnout. It is in the interests of the public to know that where they face disruption in these crucial services as a result of strike action, it is because union members have secured a democratic mandate. That is also important for union members who did not support the strike action.

The Government believe that the measures being put in place strike the right balance. During the passage of the Trade Union Bill last year, the Government consulted on which services within the public service categories set out in the Bill should be subject to the 40% threshold and on how the threshold should operate in practice. We analysed more than 200 responses, reviewed the available evidence for the impact of strike action across different public services and listened to stakeholder views.

At this point, I will answer the question from the hon. Member for Airdrie and Shotts on what consultation took place with the Scottish Government. The Government held a public consultation on these measures during the passage of the Bill, published skeleton regulations as part of the Government response and invited comments from all stakeholders and members of the public, including in Scotland.

[Neil Gray]

A public consultation is very different from one-to-one correspondence with a Minister. Will the Minister elaborate on whether any direct contact was made with the Scottish Government on these matters?

[Margot James]

I imagine it was, but as I was not the Minister responsible at the time I cannot confirm that categorically.

As I said, the Government believe that the measures being put place strike the right balance. During the passage of the Trade Union Bill last year, the Government consulted on which services within the public service categories set out in the Bill should be subject to the additional 40% threshold and on how the threshold should operate in practice. The Government response to the consultation was published in January last year, when we also published draft regulations. The substance of those was discussed in Parliament during the passage of the Trade Union Bill. The regulations we are introducing today limit the application of the threshold to those services where there is the most compelling evidence of the impact of strike action and ensure that its scope is proportionate.

What does that mean for the education and transport sectors affected? The Government aim to ensure that all children have the right to an education, so we have focused on teachers who work with pupils of a compulsory school age in state-funded institutions. That reflects the importance of those years for children’s education and the disproportionate impact on learning that strike action can have. In the transport sector, our priority is to ensure that large numbers of people can rely on the services they need every day to make important journeys as far as possible. We have therefore focused on passenger services, because strike action is more likely to have an adverse and immediate impact on people’s ability to go to work, school, college and important appointments. That is why the regulations cover passenger railway services, including the maintenance of trains and the network, and the signalling and control of the operation of the train network. The regulations will also cover any London local bus services, civil air traffic control services and airport and port security services.

[Nigel Mills (Amber Valley) (Con)]

Will the Minister explain how the Government came to think that only London bus services counted as important public services? I assume that my constituents who travel on buses into Nottingham or Derby to work would find a strike on those routes inconvenient, too. Is there some reason why the regulations are restricted to London buses?

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[Margot James]

My hon. Friend makes a very good point. I will reflect on that and get back to him.

Members of the public will agree that strikes in such important public services should only take place when there is a strong level of support for a justifiable mandate. I hope I have reassured Members that the regulations are justified and proportionate to our objective.

I am aware that concerns have been expressed in Parliament and elsewhere that the 40% threshold is not consistent with our international obligations. I will set out why we are satisfied that it is compliant. We recognise that the threshold introduces additional conditions that must be met before strike action can be taken. It therefore engages our obligations under article 11 of the European convention on human rights and the International Labour Organisation’s conventions. We analysed the provisions of the 2016 Act carefully against those requirements. It is clear that restrictions on article 11 of the ECHR are permitted when they are justified by a legitimate aim and are proportionate. The pressing social needs we want to address in the regulations are the safeguarding of children’s education and the ability of large numbers of people to go to work and carry on their daily lives. Strike action in the important education and transport sectors can have a significant impact on those social needs.

[Alison McGovern]

It was my great joy as a child to experience my dad, a railway worker, out on strike on many occasions. Too often, he was protecting health and safety for other railway workers—a cause that is extremely important to all of us who have family members working to keep our trains running. Will the Minister explain how she has weighed important social factors such as the safety of people working in the industry against the causes she mentions?

[Margot James]

The hon. Lady makes a very good point. The legislation does not purport to condemn all strike action as anathema. It is merely about a requirement to better balance the interests of the travelling public with the rights of people, including her father, to take strike action. There is no concerted effort by the Government to undermine a person’s or a union’s right to take strike action; we are merely requiring that right to be tempered by a strong democratic mandate.

Our aim is to rebalance the ability of union members to strike with the interests of the general public, non-striking workers and employers. In introducing thresholds, we have taken proportionate action that does not ban strikes, but simply redresses the balance by ensuring that unions have a democratic mandate before they take strike action. International bodies have persistently been asked to consider whether UK legislation is compliant, but the UK courts, the European Court of Human Rights and the governing body of the ILO have accepted that UK legislation strikes the right balance between the rights of union members and the legitimate interests of others affected by their actions. That is precisely what the Trade Union Act and the regulations continue to do.

We have taken account of the guidelines on essential services that some of the ILO’s supervisory committees have referred to in respect of services where it may be legitimate to limit or prohibit strike action, but our objective is not the same and that is why we have deliberately used a different term. As I have explained, we want to protect the public from the immediate and adverse consequences of strike action taken with the support of a minority of union members. We are not stopping strikes that have a reasonable democratic level of support, such as those the hon. Lady just mentioned.

[Chris Stephens]

Why are the Government seeking to rush ahead with these statutory instruments today, rather than wait until the outcome of the e-balloting review? I say that specifically because of the Government’s assurances to the House of Lords and hon. Members of this place during the passage of the Bill.

[Margot James]

The report of the e-balloting review is not far off and the matter is separate from the requirement to secure a proper democratic mandate for strikes in these important public services.

In relation to the regulations, the Secondary Legislation Scrutiny Committee pointed out that the Government had committed to issue guidance to clarify which workers will be captured by each of the important public services listed, in order to assist unions and employers when they are assessing how a ballot should be conducted. The Committee’s view was that the need for such guidance raises the question whether the regulations are sufficiently clear and understandable for those affected. Furthermore, the Committee expressed regret that the Government had failed to publish that guidance in early December when laying the draft regulations in Parliament.

I am grateful for the Committee’s scrutiny. I can confirm that the Government have now published guidance to provide advice for unions on applying the 40% threshold in practice, with examples of workers who will be covered by each of the regulations. In drafting the guidance, we engaged with key stakeholders affected by the provisions to understand how the guidance can be most helpful. We listened carefully to their views and have reflected those in the guidance.

In conclusion, the Government believe that the regulations are proportionate and strike the correct balance between the interests of unions and those of members of the public.

--- Later in debate ---

[Margot James]

I do not intend to respond to all of the points raised—they were given an adequate hearing during the passage of the 2016 Act—but I will respond to the particularly germane points.

First of all, I must respond to some of the points made by the hon. Member for Wirral South. She talked about the strikes in 2011 as if they were somehow justified as an attack on the former Chancellor’s rescue of the British economy. The coalition Government came in with a mandate from the 2010 general election to restore the public finances from the shambles the Opposition left them in.

--- Later in debate ---

[Alison McGovern]

Will the hon. Lady give way?

[Margot James]

I will not give way, because I am merely responding to the hon. Lady’s—

[Chris Stephens]

On a point of order, Mr Evans. For the record, I was on strike in 2011 to protect my occupational pension, which was being attacked by the Government.

[The Chair]

That was a point of information, not a point of order.

[Margot James]

I contend that the Government’s position on the legislation is not ideological at all. I agree with Opposition Members that trade unions are a force for good. Contrary to some of the remarks we have heard, we are seeking a rebalance in the interests of the public, most of whom are workers as well. In the egregious current example of the Southern rail strike, many of the passengers attempting to get to work or to important appointments are paid considerably less than the union members who are on strike. I ask Opposition Members to consider that. That is an important part of why we are trying to rebalance the interests of unions with those of the rest of the population, who require and indeed depend on public services. Nothing in the Act undermines the right to strike. It merely ensures that, when strikes occur in vital public services—I accept that they are usually the last resort—they have a strong democratic mandate. That is all that is being proposed.

The hon. Member for Sheffield, Brightside and Hillsborough talked about public opinion during the consultation. The consultation process was in depth. The response to a ComRes poll of 1,000 people held in 2015 found that 62% supported the ballot thresholds. This support was consistent across England, Scotland and Wales. The measure was, of course, a manifesto commitment made by the Government before they came into office.

The hon. Lady also talked about our international obligations and claimed that ECHR cases indicated that the thresholds we are proposing should only apply to police officers and workers in other sectors that involve life and death. That is not the case. The National Union of Rail, Maritime and Transport Workers case, which was heard by the European Court of Human Rights, specifically made it clear that Governments have a wide margin in deciding what proportionate measures are. We have taken great care to show that our proposals are consistent with our international obligations.

My hon. Friend the Member for Amber Valley made the very good point about bus services outside London. Buses in London are tightly regulated by Transport for London and the impact on the public of strikes in bus services in the past is well documented. More than 6.5 million journeys would be disrupted by 24-hour strike action across the London-wide bus network. In contrast, there is limited evidence of the impact of strike action in local bus services outside London on the sorts of users who rely on those services. If my hon. Friend has evidence to the contrary, I invite him to bring it to my attention and we will look at it.

Positive industrial relations are the backbone of a productive economy and the Government believe that trade unions can play a constructive role in maintaining such relations. We are equally clear that the reforms are required to ensure that strikes happen only as a result of a clear, positive decision by at least 50% of those union members entitled to vote. That is why we brought in the Trade Union Act, in order to fulfil one of our manifesto commitments. The regulations implement the Act’s provisions in relation to the 40% threshold for approval for strike action in important public services in the education and transport sectors. I have explained the purpose and we have debated it well this afternoon. We are taking proportionate action, which redresses the balance by ensuring unions in these sectors have a strong, clear and recent democratic mandate before they take strike action. I believe the proposals are fair and appropriate and I commend the regulations to the Committee.