My Lords, the public expect the essential services that they pay for to be there when they need them. This Bill aims to maintain a reasonable balance between the ability of workers to strike and the rights and freedoms of the public to access essential services during those strikes.
The latest ONS data shows there were 843,000 working days lost because of labour disputes in December 2022. This brings the number of strike days lost between June and December to nearly 2.5 million, which is the highest since 1989. Industrial action is disruptive for everyone: for those who rely on those essential services to get to work or care for their families, for the NHS trying to get the backlog down, and for schools trying to recover lost learning after the pandemic. It also, of course, vitally impacts on our local businesses, whose sales and productivity suffer.
While we are pleased that voluntary derogations were eventually agreed for the strike action in health sectors in December 2022 and early this year, I am afraid that is not guaranteed to be the case for future action or in all sectors. Indeed, during the ambulance service strikes in December and January, some derogations were not agreed until immediately prior to the strike action, leaving employers with sometimes only hours, not days, to implement full contingency plans. This creates a great deal of uncertainty for everyone concerned, including the staff, the public, patients and their families. Further, there is no guarantee that where derogations have been agreed the required numbers of staff will not strike on the day itself. This can create uncertainty and inconsistency across the country, and unnecessary risk to patient safety.
While I would emphasise that the Government firmly believe that the ability to strike is important—it is rightly protected by law—the recent industrial action has highlighted the disproportionate impacts that strikes can have on the public. We need to be able to have confidence that when strikes occur, people’s lives and livelihoods are not put at undue risk, and so do the public; that is why this legislation is needed.
I turn now to the detail of the Bill, which establishes a legal mechanism to implement minimum service levels for periods of strike action affecting certain services. It achieves this by making amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 that add obligations relating to minimum service levels to the list of requirements necessary for the union’s strike action to be protected from liability in tort.
The legislation will enable minimum service levels to be implemented in key sectors via regulations. The key sectors specified in the Bill are broadly the same set that were defined as important public services in the Trade Union Act 2016, which have long been recognised as important for society to function effectively. The six key sectors are health services, fire and rescue services, education services, transport services, the decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security. These are the right sectors, given the economic impacts of their potential disruption as well as the impacts on public safety and the ability of the public to go about their daily lives.
Regulations will be tailored to each relevant service to meet legitimate aims, such as safety, public health, access to work and to healthcare, among others. The Government believe it is only right that minimum service levels and the services they apply to are informed by consultations, as required by the Bill, and that there is parliamentary scrutiny of the regulations before they come into effect. This is why these regulations must be approved by both Houses of Parliament before they can be made.
The Bill and subsequent regulations are designed to enable employers to specify the workers required via a work notice in order to meet minimum service levels during strikes within those relevant sectors. Should a union notify an employer of strike action in accordance with existing rules, the Bill will allow the employer to issue a work notice to the union, seven days before the strike, specifying those workers needed to work during the strike and the work that they will need to carry out to secure the minimum level of service.
Work notices must not include more persons than are reasonably necessary to meet the minimum service level and employers must not have regard to whether a worker is or is not a member of a union when producing the work notice. Employers must consult the union on the number of workers to be identified in the work notice and the work to be undertaken, and have regard to any of their views before issuing that notice. Each employer and union must also adhere to data protection legislation regarding those work notices.
To enable a minimum service level to be achieved on a strike day and where a work notice has been issued, a trade union must take reasonable steps to ensure its members, when named on a work notice, comply with it and therefore do not participate in the strike. What is considered “reasonable” will to an extent depend on each specific situation and could include making it clear in its communications with members that, where members are named in a work notice and required to work on a particular day, they should attend work on that strike day. A union which fails to comply with this obligation could lose its protection against liability in tort.
Additionally, if an employee takes strike action despite being named on a work notice, they will lose their automatic protection against unfair dismissal for industrial action. While it is up to the employer, not the Government, as to whether disciplinary or legal action is taken in instances of non-compliance, these measures are necessary to enable employers to manage these situations in the same way as they would now with unauthorised absences or unprotected strike action.
The Bill ensures that minimum service levels align to existing law in respect of taking industrial action and associated legal protections. These provisions are needed to make minimum service levels effective where they apply. This legislation is not about sacking workers; it is about protecting people’s lives and livelihoods by enabling minimum service levels to be applied during strikes.
The Government have already released consultations on the minimum service levels for our blue-light ambulance and fire services and for rail services. These consultations ensure that the public and industry stakeholders, including employers, unions and their members, are all able to provide feedback on what the minimum service levels should be and how they are proposed to work.
Everyone wants to see an end to current strikes and we are doing all we can to negotiate fair and affordable pay settlements with the unions. But at the same time, we must act to protect the public for the future. This legislation is not about stopping or preventing strikes. It simply brings us into line with many other modern European countries, such as Spain and Italy, where minimum service levels are a common way to reduce the impact strikes can have on the public. However, we are not going so far as to ban strikes completely. We are taking a fair and reasonable approach by asking that, before a union takes strike action within a relevant service, they agree adequate voluntary arrangements of cover where they are necessary. Where this has not happened, we will introduce regulations to enable minimum service levels to be applied.
We are of course always mindful of and thankful for the contribution that public sector and other workers make to our country. But if trade unions continue to take disproportionate and potentially unsafe industrial action, we firmly believe that we need to take steps to protect the public. I beg to move.
My Lords, this skeleton Bill, for which the Government have no manifesto mandate, would give the Secretary of State sweeping powers and deny proper parliamentary scrutiny and accountability. It also seeks to override the authority of the Scottish Parliament and the Welsh Parliament. By attacking the fundamental freedoms of working people, it almost certainly contravenes international law, including ILO convention 87, which the UK signed up to.
Can the Minister confirm that the Bill ultimately gives the Secretary of State powers to set so-called minimum service levels for strikes at 80%, 90% or, indeed, 100%? In which case, would it not be more accurate and honest to title it the “ban strikes” Bill? This morning, the RPC gave the Government’s impact assessment of the Bill a rating; it is red—“not fit for purpose”. The impact assessment published this afternoon says that there will be no impact on the UK-EU trade agreement and its level playing field clauses. However, as the Bill runs alongside other threats to worsen workers’ rights contained in the retained EU law Bill, it would be very unwise to rule out retaliation.
What we do know for sure is that the Government’s evidence base for the Bill is deeply flawed. Countries which Ministers commonly cite as comparators do not, in fact, impose minimum service levels by state diktat; nor do they give free rein to sack striking workers who refuse an order to work. Taking powers to strip nurses, teachers, firefighters, transport workers and others of their livelihoods, when they strike for better pay and conditions, is not generally regarded as a feature of a free society. Only now, at this late stage, are consultations being launched in some of the sectors covered. We do not know yet which employers and grades are affected, how those six sectors are precisely defined, or how many more sectors could be added in the future. What is clear is that arrangements for emergency cover are already agreed in good faith between employers and unions across a range of emergency services, and the Bill risks squandering all that good will.
My Lords, various circumstances may lead to legislation being rushed through Parliament. We might have to respond to international developments beyond our control: a conflict breaking out, or an urgent need to approve a treaty. There may have been an unexpected incident where it is clear that our current law is inadequate and there is cross-party agreement to work urgently to fill a gap. Alternatively, we may have a Government who find themselves in trouble and cook up some kind of legislative proposal so they can fill their media grid by appearing to be doing something.
There are no prizes for guessing which of those scenarios we on these Benches believe we find ourselves in today. There is no outside pressure or unexpected gap in the law, but we do have a Government who are floundering and seeking to distract attention rather than dealing with the real problems facing our country. I will focus on the crisis in health and social care in my remarks, while other noble friends will speak to transport and broader concerns about industrial relations later.
First, I want to flush out one area which illustrates the hollow political intent behind this legislation. That is the Government’s attempt to sell it as a copy of what happens in other European countries. To hear this Government, of all people, ask for support for regulation on the basis of aligning with EU countries tells us either that they completely lack a sense of irony or that they actually want us to laugh at them. You can imagine someone in No. 10 getting excited about this angle as one which will confound those pesky Europhile Opposition politicians: “How can they oppose this if we point out that it is just like the EU countries that they love?” Gosh, you have really got us there; what can we say? Oh yes, we can say that this is nonsense. There might be an argument for saying that this is alignment if the Government were planning to import French, German or Spanish labour law wholesale, with works councils, collective bargaining and the whole kit and caboodle. Can the Minister confirm today what other elements of EU labour law the Government plan to adopt in the near future? But, of course, that is not what they are proposing, and their argument falls apart as soon as you recognise that each country has a unique way of managing relations between workers and employers that depends on a complex web of relationships and legal powers.
4:16 pm
Lord Judge (CB)
My Lords, this is a troublesome piece of legislation. It asks us all a very simple question: when does the right to withhold your labour—that is, to strike—cease to be a right? It answers that question too, and the answer is a bit depressing: the right ceases when, following a ministerial decree, your employer can oblige you to work, and if you fail to do so you can lose your job. That is pretty stark. I am not going to try to discuss the advantages and disadvantages of the proposed legislation or the speeches we have just heard. I am more troubled by the idea that a unilateral change in the contracts of employment of thousands of people can be made by a piece of secondary legislation. That is all this Bill is. Forgive me.
Can we start with Clause 1? That is a good place to start, is it not? Here it goes:
“The Schedule … amends Part 5 and other provisions of the 1992 Act to restrict the protection … where provision has been made in regulations”.
It asserts that this is a Bill about regulation-making. It incidentally overrules legislation that came into effect under a Conservative Government—the 1992 Act. How is it done? The Secretary of State may make regulations; we keep being told that. But before we make any regulations, can we please remind ourselves that whatever regulations a Minister may choose to make, he can change them? Not only that: he can change any Act of Parliament. He can change not only any Act of Parliament but any Act of Parliament that we have not yet seen and may yet come before us before the end of this Session. So it is a power to get rid of legislation that we do not even have. It is a rather strange thing.
Now, what does the Secretary of State do? What is his responsibility? Let us look at it. His responsibility goes this far and—lamentably, I suggest—no further:
“Before making regulations … the Secretary of State must consult such persons as the Secretary of State considers appropriate.”
He does not have to consult anybody. He can consult whom he likes. Even if he does consult people of admirable quality and dispassion, he does not have to take the slightest notice of them. That is an open-ended entitlement of the Secretary of State about how he should act. This is irrespective of overruling primary legislation. This notice which comes into effect will be produced by the Secretary of State as he or she thinks appropriate, without further consultation with anybody in the field of work, the trade union movement or anywhere else.
Having done that, he then happily drops out of the picture. What happens then, when the regulations have been made, within the six services? I declare an interest: my wife spent all her working life as a paediatric physiotherapist in the National Health Service, and my daughter and granddaughter are both teachers working in the public sector. An employer may give a work notice to a trade union, entitling the employer to identify the persons required to work and have at least this much of a consultation process, one step up from the Secretary of State:
My Lords, I am pleased to contribute to a debate that addresses six key areas, all of which address public safety. I also look forward to hearing the maiden speech of my noble friend Lady O’Neill further on in the debate.
With my noble friend at the Dispatch Box, I attended an all-party briefing meeting on the Bill two weeks ago, and I recall him saying, in the discussion about the Bill, that, despite putting this on the statute book, he hoped it would never be needed. This begged the question: why is it needed? In his opening remarks today, he gave an example of the ambulance service in strike mode, where there were very real concerns about the service that would be supplied. I am concerned that, across all six sectors, we have some form of safety net as far as the general public are concerned, notwithstanding my appreciation of people’s need to strike. I declare an interest: many years ago, I worked for the NHS in an operating theatre. On a personal basis—it was not because I was stinking rich that I could afford to do so—I would not have withdrawn my labour under any circumstances, and I did not: it was an emergency operating theatre.
I agree that there is tension here. Some of the most eminent trade unionists in the country are sitting in this Chamber—I notice the noble Baroness who opened for the Opposition—and they will have a lot of experience. It is quite right that they articulate that because this is a matter of tension, as is so often the case in legislation before this House. Just before this debate, we heard the tail-end of a Third Reading debate on abortion clinics. Tension between competing interests—firmly believed and firmly held views—is the nature of the work we do. At the end of the day, the Government have to use their judgment.
So I recognise that there is a tension between the Bill my noble friend has brought forward and the existing Trade Union and Labour Relations (Consolidation) Act 1992. It looks as though the Bill will remove the protection and status from trade unions and workers in areas where minimum service levels are needed. I just want to articulate, if I may, on a personal level. When I leave home and come here during the week, I leave behind carers in charge of somebody I love very much. The last time there was an ambulance strike, I basically said, as I went through the door, “Don’t take him out for a walk today.” That was because I did not want to put that additional risk into his life, because I knew things were really not good with the ambulances.
“The trade unions are a long-established and essential part of our national life. We take our stand by these pillars of our British society as it has gradually developed and evolved itself, of the right of individual labouring men to adjust their wages and conditions by collective bargaining, including the right to strike”.
Today, more than ever before, we must add individual labouring women to that description, but the original words come not from Keir Hardie nor even Clement Attlee, but from Winston Churchill’s 1947 Conservative Party conference speech—even after his legendary wartime leadership and what must have felt quite a bitter defeat in the subsequent general election. Contemporary Conservatives would be wise to learn from the magnanimity of their greatest leader as he built on the Disraeli tradition of protecting the right of working people to organise. Today’s Government should do this, not just for a shot at a better place in history but because it is both principled and politically shrewd.
Over 40 years earlier and long before the right to strike had been enshrined in the international human rights settlement, in which he played a significant part, Churchill observed:
“It is most important for the British working classes that they should be able if necessary to strike—although nobody likes strikes—in order to put pressure upon the employers for a greater share of the wealth of the world or for the removal of hard and onerous conditions”.
In today’s world of union-free and exploitative Amazon warehouses—one of food banks next to investment banks—his 1904 comments could not be more salient. Rights to union recognition, collective bargaining and to withdraw labour are merely the employees’ equivalent of property rights, including to engage in co-ordinated consumer or investment action against unscrupulous companies or foreign powers that exploit slave labour. How can it be regarded as conservative to attack them further?
My Lords, the Bill perfectly epitomises the sorry state this Government have reached and the escalating damage they are doing to our country. For context, I invite your Lordships to cast your minds back to the heady days of 2012. Despite having to wrestle with a worldwide economic crash that originated in America, ours was a respected and proud country. We had just put on the conspicuously successful and joyful London Olympics, during which we had shown how we happily welcome strangers to our shores. We were admired throughout the world for our businesses, science, creative arts, diplomacy, public services and Parliament. Yes, we had problems, such as our long-term failure to tackle poor productivity, but our optimism and self-belief gave us a chance to come together to finally fix those issues.
Where are we now, 11 years later, following seven tumultuous years of Conservative-only rule? We have been hopelessly divided by a near stalemate in the Brexit referendum, a vote that was scarred by blatant dishonesty and Russian interference—which, incredibly, the Government still refuse to investigate. Some of our most successful industries and sources of soft power such as the creative arts have been hobbled by a badly botched trade agreement with the EU.
The Government’s response to Covid was characterised by early dithering, resulting in many extra deaths, and rampant PPE corruption on a scale of which rulers of a banana republic could only dream. Our friends abroad have watched our rapid decline and our Government’s ridiculous boosterism initially with irritation and incredulity, which then became hilarity, and has now reached its nadir in pity for our self-inflicted plight.
The wretched little Bill we are debating today is just the latest salvo in the relentless attack to which this Government have subjected our democracy. It started with the illegal prorogation of Parliament and has continued with frequent attempts to sideline both Houses and excessive use of regulations to make important policy decisions. With the swaggering confidence of a playground bully whose behaviour has never been checked, this Government now table another Bill which relies on Henry VIII powers for all its decisions.
My Lords, I add my welcome to my noble friend Lady O’Neill of Bexley. I hope that this afternoon’s will be the first of many fine interventions from her in this House.
I hope I would have had the courage to have been one of those early strikers. I hope I would have been a Chartist. I hope, had I been a politician, that I would have supported and fought for the Trade Union Act 1871. I am not sure why but I have always been particularly affected by the matchgirls’ strike of 1881—phossy jaw and so much unnecessary suffering.
Yet trade union law is about a balance: a balance between rights that are matched by responsibilities. That is why I was proud to play a part in supporting my old friend and former boss Norman Tebbit when, in the 1980s, the Conservative Government reformed trade union laws to bring back that balance between rights and responsibilities. There were five Employment Acts and a Trade Union Act that dealt with the closed shop, secondary picketing, members’ postal ballots and so much more.
At the time, the Labour Party screamed in outrage, but what happened when Labour eventually got back into power? Absolutely nothing. Labour’s 1997 manifesto promised that the key elements of those Conservative reforms would stay. It said, “There will be no going back”—that is a quote—and none of those terrible trade union laws were repealed. Those laws did not stop strikes; they balanced the rights of trade unions against the rights of others, which is precisely what this Bill seeks to do.
This Bill covers a lot of different sectors. It is interesting that Labour concentrates so heavily on nurses and health workers, with barely a squeak about Mick Lynch and the RMT, but I understand why that is so. Their job is to oppose, just as our job as a House is to improve; frankly, I would be surprised if this House and the Government were not able to find some improvements, if I can put it that way. I listened closely to the words of the noble and learned Lord, Lord Judge, as far as that is concerned.
My Lords, here we go again. The noble Lord, Lord Dobbs, has taken us through some of the industrial relations history, going back many centuries in some cases. It shows that it is a rite of passage for successive Conservative Governments, since Mrs Thatcher and Lord Tebbit, to legislate against trade unions and to minimise their scope for action. We are the old enemy, as has just been very graphically described in that last contribution. It reflects a nostalgia to replay the epic battles of the 1980s, only this time it is nurses and NHS staff, fresh from being applauded in the pandemic, who are now on the front line. It is not coal miners or printers; the world has changed since Lord Tebbit’s high-water years. As can be seen regularly from the polls, these workers who have been taking action are getting a lot of public support at the present time. That must be taken into account.
This is all against the background that we have seen in recent decades of rising inequality, the poor getting poorer and many workers working on a more insecure basis. If you are talking about balance, the other side of this House has got the balance wrong. The right way is to give workers more scope.
By the way, where is the employment Bill we were promised, which was going to give workers in the gig economy greater rights and greater freedom? That is buried somewhere, while staff have been diverted to the exercise that we are debating today.
At the moment, there are mixed messages all over the place from the Government: one minute Ministers are cooing that they want to talk to unions, while the next minute this crude club of a Bill is being swung at the unions, despite the fact that we already have some of the toughest trade union laws in the democratic world.
The Government must face up to the fact that, with inflation running at 10%, with pay in the private sector rising at around 6%, and with the public sector lagging well behind at half that, they have a very big problem in respect of their own employees. In a democracy, you cannot dam the wave of discontent, and this is a legitimate discontent that we are talking about at the moment; you have to find settlements and a way through.
5:00 pm
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I have spoken to workers who have been on strike or who have been balloted for action, including a firefighter union rep called Kasey. As a dedicated professional who puts her life on the line to keep us all safe, she asked, “What is the Bill really trying to achieve?” Kasey has a seven year-old daughter to raise and, with inflation running at over 10%, she is struggling to make ends meet. She, along with her colleagues, took the difficult decision to vote for strike action, and the FBU secured an 88% yes vote on a 73% turnout. On the back of that ballot result, the fire service employers have now returned to the bargaining table and improved their offer—but the Bill would pull the rug from underneath such negotiations. If, ultimately, the Secretary of State can unilaterally impose minimum service levels, and workers who do not comply can be sacked, where is the incentive on the employer to negotiate, let alone to come to a fair agreement? Many decent employers, alongside the TUC and the unions, say that the Bill raises more questions than answers, so perhaps the Minister can provide some.
What exactly are the “reasonable steps” which unions are expected to take to ensure that staff comply with work notices or face draconian attacks on their funds, and does this burden on unions also apply in respect of staff who are not union members? If a union is deemed not to have taken these undefined so-called reasonable steps, is analysis from the House of Commons Library correct to contend that all workers on strike in a given sector would lose protection against dismissal whether or not they are named to work?
Could workers who are required to work during a strike but who call in sick on the day be sacked, and what assessment has been made of the impact of such sackings on our public service recruitment and retention crisis, including on workforce morale when it is currently at rock bottom? What would prevent unscrupulous employers using work notices to target and victimise elected workplace union representatives, or to discriminate, directly or indirectly, on the grounds of race, sex or any of the other protected characteristics?
Has the Minister considered the real-world consequences of the Bill? Anyone with IR experience can see that it would poison relations between employers and unions by rigging the balance of power still further against working people, and by seeking to frustrate the effective expression of legitimate grievances.
The UK already has some of the most draconian laws on strikes. However, in my experience, people will always find ways to stand up for justice for their families, their workmates and their communities. It is very likely that there would be more action short of strike action: work to rules, overtime bans, and potentially the disruption of mass sickies and spontaneous walkouts. Disputes would become prolonged, embittered and even harder to resolve, and the Bill would create trade union martyrs, causing more unrest.
I return to Kasey’s question: what problem is the Bill really trying to fix? After all, strikes are merely a symptom, not the cause, of discontent. After more than a decade of pay squeezes, deep funding cuts and now a record number of families turning to food banks, we can all see the pressure. We know the toll that takes on NHS staff, teachers and key workers right across the board, and that, as burned-out public servants leave for better paid and less stressful jobs elsewhere, the recruitment and retention crisis is only making public service backlogs worse. That is why a majority of the public believe that there is a better solution to the current wave of strikes against real-terms pay cuts. It lies in the Government’s own hands, and it is simple: Ministers should come to the table, in good faith, and negotiate.
This shoddy Bill is unfair, undemocratic and unworkable, and that is why Labour is committed to repeal it in its entirety.
Let us turn to one of the areas that the Government say is a primary driver for the Bill: health and social care. There is as near to consensus as you ever get in politics that the biggest challenge facing our health and care sectors is a lack of staff to provide the services that we need. We discuss these staff shortages in this House continually, and the Government themselves agree that we cannot improve these essential services without solving them.
These shortages pile extra stress on to those who are having to cover gaps, making the idea of going into these essential roles even less attractive. The overriding priority for any Government faced with this situation should be to work at making these professions more attractive, and that does mean looking at pay, but also at the morale of the profession. What we are seeing from this Government is the opposite of that: they set out to give the impression that they are immovable on pay, that they have few ideas on staffing levels, and as icing on that hard cake they come up with this Bill as a warning to anyone who dares to challenge them.
There is nothing in this Bill that will lead to more health and social care staff being hired, but it rather represents another signal from this Government about how they intend to treat those who are employed in these essential services. Staff in the NHS taking industrial action feel caught between the devil and the deep blue sea. They are dedicated professionals who would rather be at work caring for people than on the picket line, but they are genuinely concerned that their living standards will keep eroding if they do not take a stand to defend them.
There is an opening for a positive discussion between the Government and those professionals about what a fair settlement would look like, and about how they can work together to ensure that there are adequate staffing levels all year round to help patients and the staff themselves. Instead, under this Bill, the Government will be forcing conversations about staffing levels to happen under threat of sanctions. That is hardly conducive to good dialogue.
The Government have one more trick in their media playbook: the consultations they are running on minimum service levels that are engineered to be able to show public support. There is no option in the consultation to see whether people would rather the Government settled the dispute so that industrial action itself went away—something I suspect would have overwhelming public support in the case of NHS staff—and there is no attempt to explain the trade-offs and complexities involved in a mandated versus a mutually agreed approach.
The Government’s case is not that there has been a failure to provide baseline cover during recent strikes but that they want more consistency and prior notice. But if the price of that consistency is a worsening climate of hostility between employers and staff, we have to ask whether this is worth it. In sectors where there is a queue of people wanting to take on jobs, playing hardball like this might be defensible, but where those queues are empty and our overriding public goal has to be to fill them, this is a very high-risk strategy. As always, we do not wish for the Government to fail, but we would be remiss in our duty if we did not raise a flag where we think this is likely to be the case. The Government have had their announcement and shown that they are not taking the strikes lying down, but the price of following this approach to the bitter end is that it risks undermining their overwhelming priority, which is to improve public service staff recruitment and retention.
It is not too late for the Government to think again about where their time and energy should be best directed if we are to see meaningful, systemic improvements to health and social care rather than a mere manoeuvre past a bump in the road. The risk otherwise is that in pushing hard to establish mandated minimum service levels during industrial action, this very effort will contribute to being unable to maintain what are all too often inadequate levels of service in these vital sectors all year round.
I always find the impact assessments that come with legislation illuminating, and we received the one for this Bill today, which did not disappoint. It shows us another possible way forward. The first option is voluntary minimum service level agreements, with no government incentives, in key public services. The impact assessment suggests that similar benefits could be derived from voluntary agreements, with the main downside being that employers would need to offer incentives in return, perhaps in terms of pay and working conditions.
I close with a question to the Minister and ask him to explain whether this option to make a good-faith effort to negotiate more voluntary arrangements for strike cover was ever seriously explored. This would be a way both to guarantee services and to motivate staff to join and stay in these public services. I suggest to the Minister that in the current climate, we might get further by offering more carrots rather than waving ever-bigger sticks.
“the employer must … consult the union about the number of persons to be identified and”—
good Lord—
“have regard to any views expressed by the union”.
The employer is not bound by them but must just “have regard to” them—that is an interesting phrase in legal terminology, and I do not wish to be the judge who has to decide whether the employer has or has not had regard to the particular views expressed by the union.
Finally, if you do not agree, paragraph 8(2) in Part 2 of the Schedule says that you can lose your employment if you do not go to work. I am not experienced enough to know, but, as a matter of sense, this dictation—from an employer against whom you are striking because the conditions he provides for you are unsatisfactory—does not sound like a recipe for a sensible solution to a difficult industrial dispute.
But, ultimately, it is the way that this legislation is before us. Once again, it deals with very important issues: this is an issue of great principle, and I understand why the Opposition say that, if they come to power, they will repeal this. This is an issue of great principle and moment for hundreds of thousands of people, and it is all being done hidden away in secondary legislation. This will not do.
I have every respect for the ambulance service—I have had many occasions to be grateful to it personally—but that is how people out there feel, whatever their admiration, and there is a great deal of admiration for all those who work in our essential services. That is the mindset that is starting to creep in among people who have responsibility for others. It is, I hope, to relieve that mindset that my noble friend feels there have to be minimum service levels that not only the Government but the rest of us who care for vulnerable people, or who may have accidents or other things that happen to us during the course of the strike, can rely on. There is a creeping fear in this country about what may happen to me or my loved ones. It is a spill-over from the lockdown, I believe, but people are taking a lot more notice of their safety and their loved ones’ safety.
The Government, when they come into office, have a contract with the people to protect them. It is a duty. Article 2 of the convention in the Human Rights Act is about safeguarding the right to life, and the Government should take appropriate measures to safeguard life by making laws and taking steps to protect you if your life is at risk. It is not just a matter of high-profile cases that we might know about that occur around the world or in third-world countries. The Government and Ministers have responsibility for the population of this country, regardless of how they voted, to make sure that our laws do not put that fear into people’s hearts when they shut the door behind them in the morning, that those services we have been able to depend on, particularly in the areas of health, fire and social services, will be there if they are needed in an emergency. That does not take away people’s rights to strike, but it provides what we might refer to as a safety net when it is needed. That is why I support my noble friend.
Of course, I hear what the noble and learned Lord, Lord Judge, says—I never fail to listen, as I am sure we all do, to what he says—and I am very pleased that the affirmative resolution has been written into the Bill for the secondary legislation. As a former member of the Delegated Powers Committee, other members of which are in the Chamber today, I would have found it outrageous had it not been an affirmative resolution. The Minister has quite a hard task. I hope he never has to use the nitty-gritty of the Bill, but there are those of us who are fearful when we close the door behind us, because of the activities of the essential services at the moment—I speak no detriment to them for doing it—and I hope that he will get that balance right.
The mechanism chosen by the drafters of this Bill is itself, as we have heard from the noble and learned Lord, Lord Judge, as illiberal as its intentions. For legislation dealing with minimum service levels not to prescribe what those levels are, and for it instead to leave its stated substance to the Secretary of State and secondary legislation—including amending Acts of Parliament—is yet another executive power grab from the legislature under this Government. It is also a divisive snub to devolved Administrations and crucially to working people themselves. As a number of European trade unionists have already pointed out, Ministers’ comparisons with minimum service levels elsewhere on the continent are false. Other jurisdictions provide for negotiated minimum service levels and lack the harsh supermajorities required for ballots for industrial action imposed here, during years of Conservative rule.
The Government may sidestep Parliament, and employers may impose work notices on individuals to cross picket lines contrary to their conscience. They further may slap debilitating lawsuits on trade unions who do not take so-called “reasonable steps” to ensure compliance. The clear direction of travel is of sacked workers, bankrupted unions, and flagrant violations of international human rights obligations freely to associate and to strike.
How on earth will any of this resolve current workplace disputes caused by an existential cost of living crisis and years of underinvestment in vital public services and key infrastructure by Government and shareholders alike? Surely this can only inflame disagreements that must ultimately be resolved by reasonable negotiation. Services will not be safeguarded, let alone improved, by even more demoralised staff, more time off sick and a range of industrial protests just short of formally striking.
One begins to suspect that this Government’s tactical culture wars are no longer just being waged in the home department. They have now, it seems, spread across Whitehall and the Cabinet—divide and rule instead of unite and govern, and then blame the poorest and most vulnerable in society for the mismanagement, short-sightedness, greed and even corruption of the wealthiest and most powerful.
But incendiary actions have consequences. In the private sphere, the Government will be seen to be siding with intransigent, unscrupulous and profiteering rail companies with which passengers have little sympathy after years of rising fares and diminished service. In the public realm, the Government are abusing their power as legislator, further undermining the nurses and ambulance drivers who are as much the heroes of the pandemic as any serviceperson was during World War Two. Their concerns are as much about the state of the service as their own terms and conditions. These are highly ethical people with whom we trust our lives and those of our loved ones, and, in any event, they are prohibited by law from putting lives at risk during industrial action. Agency workers are already paid multiples of their earnings, while they resort to food banks. What are they supposed to do if employers and Ministers will not talk and will not listen?
No doubt some noble Lords on the Benches opposite are perhaps nostalgic for the days of Mrs Thatcher—as she then was—versus the miners. Here I agree with many commentators that those times were significantly different. Those urging a tough line towards current strife point to the greater numbers of union members in those days. I counter that pits were not located in every community in this country. The traditional all-male workforce was more easily demonised in the shires as consisting of ideological dinosaurs. They were not always led by the more articulate, pragmatic and sympathetic—and often women—trade union advocates of today.
Perhaps I am naive about how government consultants calculate the electoral benefits of constant divide and rule as opposed to one-nation politics. However, current polls would appear to favour my argument that facilitating negotiation rather than more controversial legislation would be a better path for anyone seeking to regain public trust. Alternatively, Ministers can continue to underestimate the sense of fairness and decency of the people they are meant to serve. They can add NHS professionals, firefighters, rail workers and no doubt countless others to the lawyers, climate change and race equality protesters, and refugees already on their ever-growing list of the unworthy and unwelcome, to be abused or ignored.
This foolish attempt to suppress strikes is poisonous, unworkable and counterproductive. It comes from a Government who have reached the end of the road, have run out of ideas—if they ever had any—have expelled their most able talents and are left with the dregs and do not care how much damage they do as they head for the exit door. This is a Government who cannot or will not negotiate with striking public sector workers to settle their grievances, and instead seek to restrict their rights to express those grievances. It will not work and will in fact make matters worse by poisoning industrial relations.
The Government will say that they hope never to have to use these powers, that their mere existence will prevent strikes being called. If you have a gun and are not prepared to pull the trigger, you do not have a gun. Striking workers will not take this legislation seriously unless the Government pull the trigger—with all the bitterness that results.
As to whether it will work, the Minister is fond of reminding us that similar legislation exists in other countries, including France. SNCF, the French national railway, was on strike last week and will be striking again on 7 and 8 March. So, their version of this legislation is working very well, is it not?
Our NHS is struggling to run, with 140,000 unfilled vacancies, to a large extent caused by the Government’s decision to go for the hardest Brexit possible. How will retention of existing staff and recruitment of new staff be helped by the Government switching from clapping to sacking nurses and doctors? Is that really going to happen? I hope not.
The Government aim to attain these powers through a Bill with just six clauses. This Bill is merely the emaciated skeleton of a Bill because all the meat, all the substance, is for Ministers to decide later, however the mood takes them, after Parliament has had its small say. They cannot or will not tell us how the minimum service levels will be set relative to the abysmally low service levels the public are currently enduring, even where there is no strike.
Both sweepingly broad and disturbingly uncircumscribed, this blank-cheque style Bill is exactly the kind of insult to Parliament and parliamentary democracy that we are used to seeing from this Government. I am increasingly convinced that it is yet another product of a room somewhere in the bowels of Whitehall that has a sign on the door saying, “Something Must Be Done Department”, followed by a scrawl of graffiti saying, “Although It Will Only Make Things Worse”.
This dreadful Bill needs to crawl back into the dark space from which it emerged. It is the product of the worst Government I and many others have had the misfortune to witness in our lives; a Government already in their death throes for all to see, no doubt including those within it. The sooner this wretched Government go, the sooner ugly, unworkable and counterproductive ideas such as this Bill will stop blighting our Parliament and our country.
I have some doubts and questions for my noble friend the Minister about the relevance of lumping nurses and health workers in with train drivers and border staff. There seems to be a spreading consensus in the political world, on both sides of the political divide, that our health services require fundamental reform. The NHS is not the envy of the world. Too often, it looks like something in desperate need of new thinking. That is not the fault of the nurses, so I wonder whether any rearrangement of nurses’ obligations should not wait until it can be part of that fundamental reorganisation of the NHS that we so desperately need. It is a thought; I expect that this House is going to offer plenty of other thoughts too.
The Labour Party says that we can leave it all up to the sense of responsibility of the trade unions. I suspect that I am not the only one in this House who is old enough to remember the way in which Vic Feather, Jack Jones and Hugh Scanlon opposed Barbara Castle’s Industrial Relations Bill—Barbara Castle, no less. Scarcely a pawn of the wicked employers, was she? Trade union leaders insisted that Mrs Castle’s Bill was unnecessary and gave a solemn and binding commitment that they would ensure fair play. “Leave it to us”, they said. I remember how “Solomon Binding” came along in his great big hobnail boots and kicked that Labour Government to pieces.
Let us bring that up to date. The current train strike has been going on since last June, with eight months of inflicting misery on others—including other workers. Yet Labour wants to go back to Solomon Binding. Perhaps he might make a reappearance in the future but, if he does, he will have to dance much more daintily than he has ever done in the past.
Let me be careful here. It is no great secret that the Labour Party hopes soon to be back in power. Let me offer a thought. Just imagine that world of Labour back in power—I find it very difficult to do so but let us just imagine it. We are told that the Labour Government will repeal this legislation, but I have no doubt that this legislation will survive. No future Government would lay themselves open to the accusation that they are anti-patient, anti-commuter, anti-student and anti-ordinary worker. No Labour Government would risk the accusation that they sold the public interest out to any paymaster. I think that they will do a Blair and move on.
At Second Reading in the Commons, Angela Rayner said that this is
“a vindictive assault of the basic freedoms of British working people.”—[Official Report, Commons, 16/1/23; col. 66.]
Some might say that that is precisely what this train strike is—an assault on the basic freedoms of British working people to get to their places of work.
The Bill does not ban strikes. It simply protects the interests of the public and the weakest in our society, who have a right to demand that their basic public services continue, even when Mick Lynch decides that he wants yet more. Do not ordinary people have a right to their train services, their border security, their emergency ambulances, their children’s schooling and their emergency fire support? That is what the Bill is designed to ensure.
Here is another bit of historical context. The first strike in recorded history was in 1152 BC—more than 3,000 years ago, when workers at the royal necropolis of Deir el-Medina went on strike over the late payment of wages. I knew that your Lordships would want to know that. It is still the case that some strikes are necessary and honourable, and the right to strike is an essential and continuing part of our freedoms.
The Bill is not anti-strike; it is pro-worker—those workers who wish to get to work and who have wished to get to work over eight months of Mick Lynch and his ego-trip trying to deny ordinary people the facility to go out and work for their families. I notice that the Labour Party remains very quiet about Mick Lynch and his strikes.
The Bill is not designed to sack people; it is a Bill to keep the country working. The Bill is not an attack on our freedoms; it is a Bill that aims to restore that vital balance between rights and responsibilities, without which freedoms, jobs and basic rights die. That is what this Bill attempts to ensure. I wish it well.
Others will comment on the constitutional outrage of this skeleton Bill, with its absence of any detail about what minimum standards are needed to run, say, a railway or a hospital. The extensive claiming of Henry VIII powers would make even the old king and Thomas Cromwell blush. In his intervention in the debate in the other place, the Member for North East Somerset—Mr Rees-Mogg, no less—put it very well when he invited explicitly your Lordships’ House, our House, not to accept the Bill in its present form. He regarded it as unconstitutional, and he is right on this Bill. Of course, no one can accuse him of consistency, because he is the author of the retained EU law Bill, which will be in a Committee of this House on Thursday, which is also a skeleton Bill, giving wide powers to Ministers to avoid parliamentary scrutiny.
I am not against minimum standards, particularly as far as public services are concerned, but they will work only if they command respect and are fair. In particular, they need to be agreed. Agreements exist in some key sectors already; we heard about the ambulance service, and nuclear decommissioning is another one. In other sectors, nobody has ever thought that they were necessary. If they are going to be necessary, you would assume that the Government would be thinking about how they could get support for such measures, not issuing diktats. In fact, when you look at those countries overseas that have these arrangements, you see they are part of far more union-friendly labour codes than our restrictive regime in the UK. To take just one part of the Bill—the withdrawal of unfair dismissal protection from workers who refuse to work when called in during a strike—no other democratic country has a measure of that kind.
I ask your Lordships to look at the Bill from the point of view of a union. A dispute has arisen and there is a grievance. Before it does anything about it, the union has to hold a secret postal ballot, it has to surmount the thresholds on turnout and majorities, and it has to give due notice to the employer—all of which have been introduced, as we heard in the history lesson given by the noble Lord, Lord Dobbs. If the union can leap those hurdles, the strike can commence. But once this Bill’s provisions have been enacted, individual members can be called into work, in effect to break the strike. That is what they will be asked to do, and if they refuse they can be fairly dismissed. That is a recipe for a whole lot of extra trouble, at a time when the emphasis should be on finding a solution to the original dispute. The result will be an additional dispute, and a very bitter one at that. In the 2019 Queen’s Speech, the Government stated that no individual worker would be targeted. What happened to that promise? It seems to have disappeared.
It used to be the case that Governments tried to be exemplary employers, setting an example to the private sector; Stanley Baldwin, Winston Churchill and others always made that clear. But now the public sector is in crisis, with pay falling drastically behind many other sectors, chronic staff shortages and too many services not performing acceptably—on a normal day, TransPennine, for example, would struggle to meet any decent minimum service. The Government need an initiative to tackle these real problems, instead of messing around with this tiresome Bill.
Could the Minister put the Bill to one side? Could he consider launching a consultation with the TUC and relevant unions on minimum standards to see whether agreements could be reached where they do not already exist? Let us face it: to get an agreement could require some uprating in pay. That is what some other countries have done, by the way, in their minimum standards agreements. If not, the Bill will, if enacted, inject poison into already difficult situations.
The impact assessment for the old Transport Strikes (Minimum Service Levels) Bill warned of more frequent disputes, as did my noble friend earlier, and more action short of strikes. Others have warned of mass sickies. This is a time for industrial relations statesmanship, not political preening and posturing. It is time the Government took a different course.