Strikes (Minimum Service) Bill, discussed in the Lords 21 February 2023
Parliament Notes
[Extracts, starting with the speech of Frances O’Grady and ending with the speech of a Conservative Peer against the proposed government bill.]
Frances O’Grady (now Baroness of Upper Holloway)
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.
[…]
This shoddy Bill is unfair, undemocratic and unworkable, and that is why Labour is committed to repeal it in its entirety.
Baroness Chakrabarti
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?
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.
Lord Strasburger (LD)
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.
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 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”.
Lord Monks (Lab)
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.
Lord Bishop of St Edmundsbury and Ipswich
I would caution against the characterisation of this argument as one of left versus right; I feel I am a bit in the crossfire here. This is about dignity of work and the common good, for the flourishing of the whole of society. For the good functioning of society, it is essential that all workers have a legitimate and peaceful means to seek redress against pay and conditions that leave them unable to make ends meet. Surely, this applies even more to those who provide essential services in the public sector, where discussions about fair remuneration can be dismissed, often by the language of limiting government expenditure. Of course, all negotiations should be conducted in good faith by both parties seeking mutual agreement. I am struck—I am sure we are all concerned—that, at the moment, each side accuses the other of intransigence. However, without full recourse to strike action as the last resort, far from it creating a reasonable balance between those involved, the balance of power seems to be tipped too far in one direction.
I turn to a couple of concerns on the specifics of the Bill, which are shared by my right reverend friend the Bishop of Manchester; we look forward to raising them further in other stages of the Bill. As has been observed by several noble Lords, the Bill is skeletal in its form, opening up multiple ambiguities. It would significantly broaden Secretary of State powers, which can be exercised on very short notice. The Secretary of State would be able to specify the levels of service required during strikes in public services via statutory instruments. As has been observed, the lack of definition for “levels of service” in the Bill gives the Secretary of State full reign on this in secondary legislation, seemingly with little opportunity for proper consultation.
There is also a significant and vague infringement on protections for unions and workers. Indeed, Part 1 of the Bill would add a requirement upon unions to take “reasonable steps” to ensure compliance by their members with a minimum service work notice and, where this is not done, enable employers to sue unions. Part 2 removes workers’ protection from unfair dismissal due to participation in a strike action contrary to a work notice. Such provisions would risk further straining an already overstretched workforce in our public services. Furthermore, as the Bill stands, it is unclear which workers could ultimately be subjected to its measures. I believe these proposals do more harm than good. I urge the Minister and His Majesty’s Government to reconsider this Bill.
Peter Hain
The Bill seeks to discriminate against key workers by singling them out: paying them poorly, then threatening to sack them unfairly, with no compensation if they dare to go on strike or refuse to cross picket lines. It would, in effect, outlaw the right to strike, as the Taff Vale case did for five years from 1901, but it would not stop people standing up for fairness at work.
The Bill would prolong disputes, demoralise staff and frustrate the public. People forced to work against their will would quickly turn into quiet quitters, who do what they are paid for and no more. Just look at the impact on our railways when train drivers refuse to be forced to work on their normal rest days and decline to work overtime. Formal set-piece strike action would give way to informal guerrilla tactics, with unpredictable absences and unexpected gaps in coverage as demoralised staff stay home instead of struggling in to work when they feel below par or when they sense the onset of back pain. Some 17 million people in Britain suffer from a chronic health condition. The scope for quiet civil resistance to such punitive legislation is massive.
Where could the Government’s intransigence lead? Might they seek to press-gang the millions of economically inactive people of normal working age, such as the 2.5 million people aged 16 to 64 who last summer were out of the labour force due to long-term sickness?
Baroness Twycross (Lab)
It is time the Government accepted that the current wave of strikes is driven by desperation and frustration on the part of key workers—our nurses, train drivers and teachers, who keep our country running—not by some sinister motive. This is not the public being inconvenienced, as the Minister stated. This is large swathes of the public exercising their right to strike across many parts of the public sector. It is entirely because of a failure of government to address this desperation through negotiation that we are seeing the current high level of industrial disputes: the right to strike is not the problem.
[Even Conservatives are against the proposed bill]:
My Lords, I first draw attention to my interests as listed in the register.
This is an unnecessary Bill. As Conservative Home, the online daily Conservative newsletter, said last Sunday, it will achieve nothing and should be dropped. I have never before in this Chamber quoted Jacob Rees-Mogg, but he said in reference to this Bill in the Commons that
“skeleton Bills and Henry VIII clauses are bad parliamentary and constitutional practice.”—[Official Report, Commons, 30/1/23; col. 87.]
I ask my own side to reflect that, in a democracy, power changes, and to further reflect whether we would be happy if a Labour Government made extensive use of these fundamentally undemocratic instruments. I think we would not be. I think we would be getting up all the time and protesting about it. To come back to the Bill, I remind noble Lords that the ILO general secretary and the United States Labor Secretary both deny backing it. They were quoted as being vaguely in favour. They are not—they are both against it. The TUC and the CBI regard it, to put it mildly, as unnecessary and likely to interfere with good industrial relations, not to build them.
I come now to my area. Within the aviation sector the Bill has been greeted with dismay. Noble Lords may remember that I am the honorary president of BALPA, the pilots’ union. The impact assessment for the transport strikes Bill, which was introduced as the initial legislation, said at paragraph 100 that the proposals could lead to greater use of action short of strike. Paragraph 101 says that the proposals could increase the frequency of disputes, meaning
“an increased number of strikes could ultimately result in more adverse impacts in the long term.”
Paragraph 103 says that it could increase operational costs for employers, with a particularly onerous burden on small operators. Finally, paragraph 106 says that it could have a
“negative impact on industrial relations, which could have detrimental impacts for all parties.”
My colleague the noble Baroness, Lady Randerson, pointed out the wide variety of what is meant by transport. What do we actually mean? We have aircraft, we have the Eurostar, we have trains, we have buses and we have school buses. There is no such thing as “transport” and this Bill is far too widely drawn. My contention is that aviation should be excluded altogether; by definition, no air service is ever guaranteed, as the captain of the aircraft must always be satisfied it will be concluded safely or otherwise they do not take off. This is a fundamental principle of aviation.
Are we saying that the Secretary of State, at least a week before a flight in question takes off, is going to assume the authority of the captain of the day and insist a flight is operated? Will they do so despite, first, the weather; secondly, the technical state of the aircraft; thirdly, without knowledge of whether sufficient crew have reported or will report for duty; and, finally, despite all the other things a pilot must consider? It has always been accepted that a pilot can personally say, “I am sorry, I just feel ill. I can’t take off”. That is an excuse. You do not send £300 million-worth of equipment and 300 passengers into the sky at the whim of a Minister. This is a highly technical operation, and, frankly, it has just not been thought through.
When faced with industrial action, airlines often decide on the day not to let aircraft take off because it puts all the aircraft in the wrong places, and trying to break a strike makes for a toxic environment, and an aircraft company does not want that.
Finally on this topic—and my noble friend Lord Greenhalgh mentioned it—we have been approached by Menzies, sellers of jelly babies, asking whether we could
“Probe the government as to whether they could include aviation ground services under the legislation.”
Is the Minister now going to get a list of which sweets can be sold by Menzies, present it with the list and say, “You must find someone to sell them”? What is next? Will Pret a Manger be covered? Will it have to produce the sandwiches?
I suggest to the Minister that it is time to go back to the drawing board. As we all know, it is an offence in English law to waste police time. This Bill is wasting Peers’ time. HMG are going to lose a number of votes on this and they are going to deserve it. When I first came to this House, the then Conservative Chief Whip told me that the difference between the Lords and the Commons was that in the Commons you won votes by numbers whereas in the Lords to win votes you had to win arguments. The fate of this Bill is going to prove her right.
We really are in desperate straits when we come up with a Bill such as this, which, frankly, is not thought through. It is not actually particularly a Conservative measure; it is more a panic measure. People are not pleading for this, and if the Government try to implement it they will soon find that public opinion has drifted away from them. This is a Bill which will never be implemented. I suggest that I am going to put down an amendment that the commencement date be after the next general election, so that we can put Labour on the spot to not implement it at all.
Labour Affairs 