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Industrial Action

Volume 826: debated on Wednesday 11 January 2023


The following Statement was made in the House of Commons on Tuesday 10 January.

“With permission, Mr Speaker, I would like to make a Statement on industrial action and minimum service levels.

Nurses, paramedics and transport workers are called key workers for a reason. They truly are the lifeblood of this country; every person sitting in this Chamber is grateful for the work they do, and I know that everyone will agree that we cannot do without them. The Government will always defend their ability to withdraw their labour.

However, we also recognise the pressures faced by those working in the public sector. Yesterday I invited union leaders in for talks across government, and I am pleased to say we have seen some progress. We want to resolve disputes where possible, while also delivering what is fair and reasonable to the taxpayer. At the moment, all households are struggling with the repercussions of high inflation caused by Covid and Putin’s barbaric invasion of Ukraine, and the Government are absolutely focused on tackling that.

Granting inflation-busting pay deals that step outside of the independent pay review settlement process is not the sensible way to proceed and will not provide a fair outcome. We will instead continue to consult to find meaningful ways forward for the unions, and work with employers to improve the process and discuss the evidence that we have now submitted. In the meantime, the Government also have a duty to protect the public’s access to essential public services. Although we absolutely believe in the right to strike, we are duty-bound to protect the lives and livelihoods of the British people.

The British people need to know that when they have a heart attack, a stroke or a serious injury, an ambulance will turn up, and that if they need hospital care, they have access to it. They need to know not only that those services are available, but that they can get trains or buses—particularly people who are most likely to be the least well-off in society.

I thank those at the Royal College of Nursing, who, during their last strike, worked with health officials at a national level to ensure that safe levels of cover were in place when they took industrial action. They kept services such as emergency and acute care running. They may have disagreed, but they showed that they could do their protest and withdraw their labour in a reasonable and mature way. As ever, they put the public first, and we need all our public services to do the same.

A lack of timely co-operation from the ambulance unions meant that employers could not reach agreement nationally for minimum safety levels during recent strikes. Health officials were left guessing the likely minimum coverage, making contingency planning almost impossible and putting all our constituents’ lives at risk. The ambulance strikes planned for tomorrow still do not have minimum safety levels in place. That will result in patchy emergency care for British people. This cannot continue.

It is for moments such as this that we are introducing legislation focusing on blue-light emergency services and on delivering on our manifesto commitment to secure minimum service on the railways. I am introducing a Bill that will give the Government the power to ensure that vital public services will have to maintain a basic function, by delivering minimum safety levels to ensure that lives and livelihoods are not lost. We are looking at six key areas, each of which is critical to keeping the British people safe and society functioning: health, education, fire and rescue, transport, border security and nuclear decommissioning. We do not want to use this legislation, but we must ensure the safety of the British public. During the passage of the Bill, we intend to consult on what an adequate level of coverage looks like in fire, ambulance, and rail services. For the other sectors covered in the Bill, we hope to reach minimum service agreements so that we do not have to use the powers—sectors will be able to come to that position, just as the nurses have done in recent strikes.

That is a common-sense approach, and we are not the first to follow it. The legislation will bring us in line with other modern European countries such as France, Spain, Italy and Germany, all of which already have these types of rules in place. Even the International Labour Organization—the guardian of workers’ rights around the world to which the TUC itself subscribes—says that minimum service levels are a proportionate way of balancing the right to strike with the need to protect the wider public. The first job of any Government is to keep the public safe, and unlike other countries, we are not proposing to ban strikes, but we do need to know that unions will be held to account.

Opposition Members who object to minimum safety levels will need to explain to their constituents why, if they had a heart attack, stroke, or life-threatening illness on a strike day, there were no minimum safety standards in place—[Interruption.] I can see that they do not want to hear it, but they will also need to explain why their leader, the right honourable and learned Member for Holborn and St Pancras, Keir Starmer, has already promised—without hearing any of these details—to stand in the way of this legislation and to repeal minimum safety levels, which are in the interests of their constituents, are in place in every other mature European democracy and neighbouring country, and would protect lives and livelihoods in this country. That is the difference between a Conservative Government who take difficult decisions to protect the welfare of our nation, and the Opposition, who too often appear to be in the pay of their union paymasters. I commend this Statement to the House.”

My Lords, I begin with a statement of the blindingly obvious—that this is an issue of the Government’s own making. Yesterday the Minister kindly wrote to me to update me on the Government’s proposals to legislate for minimum service levels, or “minimum safety levels”, as the Statement said a couple of times. I wonder what it is. Is it “service level” or “safety level”, and is there a difference between the two?

In his letter, the Minister said that:

“The Government also has a duty to the public to ensure their safety, protect their access to vital public services and to help them go about their daily lives.”

We can all agree on that, but the Government are failing in that duty. In November, close to 40,000 patients waited more than 12 hours in A&E for a decision to be admitted to a hospital department, an increase of 350% over the previous November. In the last week of 2022, more than one-quarter of ambulance patients in England queued in the back of ambulances to be admitted to A&E—that is almost 19,000 people. A week ago, the president of the Royal College of Emergency Medicine said that up to 500 people a week could be dying because of delays to emergency care, the worst he has ever seen. Yesterday an emergency medic described to the Independent newspaper how he had declared a man dead on the waiting room floor in front of his wife and members of the public after he collapsed, as the hospital had run out of beds and trolleys. These are not examples of the public’s safety being ensured, of access to vital public services being protected, or of people being helped to go about their daily lives; these are examples of the Government failing in their duty.

Strikes did not cause these situations, but the Government’s failure to prevent them are making these situations even worse. That is why this is not about public safety but about the Government playing politics to try to distract from the real issues—the economic situation that they have caused and the NHS staffing shortages. Excess deaths are at their highest levels since the pandemic peak, and the public is being put at risk every day due to the NHS crisis that the Government have presided over. The Government know that their plans will not work. What assessment have they made of the effectiveness of minimum service levels to reduce the number of strikes and disruption? The impact assessment for the Transport Strikes (Minimum Service Levels) Bill stated that imposing minimum service levels could “increase … frequency of strikes”. Is this no longer the case? Does the Minister accept that firing highly skilled employees in essential public services would be counterproductive and would exacerbate the problems that already exist?

The Government have also been disingenuous in their arguments about bringing in these provisions. The letter that I received from the Minister also said, as has been repeated on a number of occasions by the Government, that

“this package of measures will see the UK align with many countries across the world such as France and Spain that already have minimum service levels in place, to prevent large swathes of their economies being ground to a halt by industrial action.”

While it is true that western European countries, including France, Spain and Italy, require some essential public services to keep a level of activity, in practice, when there are strikes, these levels are most often due to mutual agreements between employers and unions. In Italy, for instance, employers often defer to unions in deciding these levels. On the Paris transport network, levels are the result of voluntary agreements. The last two occasions when the French Government used their powers to force striking workers to return to work were 12 years apart. But most of all, those countries, with the laws that the Government are bringing in in this country to solve strikes, lose vastly more strike days than does Britain. Is that what the Government are really trying to achieve?

As well as referring to other countries, the Statement referred to the International Labour Organization, yet the ILO requires compensatory measures and an independent arbitrator, as well as saying that minimum service levels can happen only in services when

“the safety of individuals or their health is at stake”.

Yet the Bill that the Government have introduced does not contain those measures and allows regulations to be made in relation to transport, education services and the Border Force.

If the Government know that they cannot make these regulations without breaching ILO rules, what is this other than performative politics? What the Government should be doing is sitting down at the negotiating table and hashing out long-overdue deals that are needed to maintain our vital public services. Does the Minister accept that the Government’s failure to negotiate with workers is worsening, and will continue to worsen, the performance of public services, including adding to waiting times in the NHS? When will they return to the negotiating table to try to clear up the mess they have made?

My Lords, I thank the Minister for taking questions on the Statement and congratulate the noble Lord, Lord Lennie, on his contribution. I will try to focus my questions and comments on how the Minister expects this to work.

The coming Bill is interesting because it introduces the concept of a minimum service level. Of course, in the Bill, the actual levels of service are not defined—true to form, this Government will come back with secondary legislation to do that. Can the Minister give your Lordships’ House at least an idea of what criteria will be used to come up with the minimum service levels? Will they be the same right across the country or will, for example, rural and urban areas have different minimum service levels? These are important issues.

There is, however, a wider issue around service levels. Taking yesterday as an example—when there were no strikes, as far as I am aware—can the Minister tell your Lordships’ House whether the tens of thousands of people waiting weeks to see their GP were getting a minimum service level? Were the people across Britain waiting sometimes tens of hours for ambulances getting a minimum service level? Were the people trying desperately to travel by train from Manchester to London experiencing a minimum service level? This is the baseline from which this legislation is working, and it is clearly not good enough. The public expect and deserve higher minimum standards than they are getting today, and on every day when there are no strikes.

Instead of addressing this issue, which I would define as the Government’s duty of care, the Bill passes the onus on to individual workers in these sectors. It is not the Ministers, the bosses or indeed the union leaders who will be sacked if the Government’s standards are not met; it is individual workers. I want briefly to illustrate this. If the Bill is enacted, the Secretary of State will impose a minimum service level. In the event of a strike, employers will be required to identify named employees who will be mandated to work via a work notice. At that point, these individuals are deprived of their right to strike on pain of probable dismissal. That does not square with the Secretary of State’s statement that this does not infringe the right to strike.

I know the Minister, and I am sure that, in his heart, he knows that a different approach is needed to deliver the service levels we need in this country. First, as was mentioned by the noble Lord, Lord Lennie, we need to plug the huge hole in our public sector workforce. We literally need hundreds of thousands of new people in order to deliver the basic service levels we require. A serious Government would be working with everyone in every part of these vital sectors. Can the minister tell your Lordships’ House one thing in this legislation that will help to build a bigger, better workforce in this country? Of course, a necessary first step is sorting out the pay disputes.

Turning to the NHS, the Government have absented themselves from negotiating the pay round, citing the inviolability of the pay review body. This position would have more credibility had not the Government suspended the body as recently as 2018, instead negotiating directly to deliver the 2018-21 pay agreement. What has changed since 2018 that means the Government will no longer directly negotiate with workers on this issue?

The original Bill, over the summer, targeted only rail. As we have heard from the noble Lord, Lord Lennie, the impact assessment identifies more than a dozen risks and unintended consequences—not least, I hasten to add, the proliferation of sub-strike action such as overtime bans, which would cripple the NHS and is already crippling our rail services. The current Bill steps beyond the Government’s manifesto commitment and adds five more sectors. Given the differences between the two Bills, when will the Government publish an updated impact assessment?

Finally, I am sure it is extremely frustrating running a public service in the United Kingdom, but can the Minister tell us how many bosses actually asked His Majesty’s Government for this legislation? Can he point to any appetite for this beyond the Back Benches of his own party? As I said, we will take a practical approach to scrutinising this legislation when it comes to your Lordships’ House.

My Lords, I thank the noble Lords, Lord Lennie and Lord Fox, for their contributions. I start by placing on record the Government’s thanks to public sector workers, especially those working in the NHS. Their work is greatly valued and I know that all noble Lords here today are very grateful for the work they do.

Let me say in response to the noble Lords that while the pressure on the public sector is of course recognised—there are unprecedented strains, particularly on the health service at the moment—it is regrettable that multiple unions have taken the decision to strike. The public are understandably worried about access to emergency care and they are tired of the ongoing chaos on many parts of our public transport network. The Government want to resolve these disputes where that is possible and Ministers across government have been meeting union representatives this week to find meaningful ways forward that are fair and reasonable to the taxpayer. While these conversations continue, it is sensible and reasonable for the Government to take steps to reduce the disproportionate impact that strikes can have on the wider public and on our economy, and that is why we have taken the decision to introduce this legislation.

Let me be clear: we hope that in many cases we will not have to use the powers the Bill gives us. Where unions reach voluntary agreements—as is the case with the nursing unions at the moment—to provide adequate minimum levels of service that keep people safe and help the economy and society to function, we will not regulate those sectors. However, it is absolutely right that the Government have the power to act in key services where that does not happen.

The noble Lord, Lord Lennie, raised the issue of international compatibility, particularly with the ILO. I can reassure noble Lords that as part of the introduction of this legislation, the Secretary of State signed a statement of compatibility with the ECHR, and a memorandum to this effect has been published. I will place a copy of that memorandum, in addition to the delegated powers memorandum, in the Libraries of the House. Since the noble Lord quoted the ILO, let me quote the ILO back to him. The ILO itself states that minimum service levels can be a proportionate way of balancing the right to strike with the right to protect the wider public, and that is exactly what we are doing.

Let me address head on the issue raised by both noble Lords, Lord Lennie and Lord Fox, with their fairly alarmist statements about it somehow being the Government’s policy to sack workers as part of this legislation. I clarify for the record and for noble Lords that that is not the case. It is a ridiculous exaggeration. When it comes to the position of this Government on the number of key workers, we are in favour of increasing them, not sacking them.

Both noble Lords referred to other European countries. There is a certain irony in this, because normally, both noble Lords press me to adopt what other European countries are already doing—they normally quote it, particularly the Liberal Democrats, as an example of what we should be doing in this country. It is the case, although noble Lords might not like it, that many European countries and other global democracies have minimum service levels. They are facing precisely the same challenges and protecting the wider public from disproportionate impacts of strikes. In fact, many of those countries ban strikes completely in blue light and border security areas. Of course, we are not proposing to do that. This legislation does not ban the right to strike. The Government will always defend workers’ ability to withdraw their labour, but in line with what the Liberal Democrats normally ask us to do, this legislation actually brings us into line with what many other modern European countries already do.

Both noble Lords asked me about implementation and the detail of how these would work in practice. We will consult on how they will be applied to rail, ambulances and the services. These consultations will outline the proposed approaches for MSLs in each service—they will differ across different services, of course—and I will endeavour to have published during the passage of this legislation each consultation expected to be published. I look forward to engaging with noble Lords on this issue in more detail during the passage of the Bill.

The noble Lord, Lord Lennie, suggested that the Government should focus on resolving the disputes with the unions and do away with this legislation. As the Prime Minister promised last week, we are building a better future for the country by halving inflation this year, growing the economy and getting our national debt down. If we met all the inflation-busting demands of the unions, we would be shooting the economy in the foot and making life harder for other workers up and down the country. The answer to his point is that we are doing both. Of course, we will continue to talk and negotiate with the unions, but it is right that we take action to make sure that the public are protected where necessary.

My Lords, the Minister will know that Clause 3 of this Bill is the most extraordinarily wide Henry VIII clause, which will allow Ministers, by regulations, to amend or repeal not just legislation already passed but any legislation to be enacted later in this Session. Is that not the clearest possible sign, together with the framework nature of the Bill, that the Government have not yet worked out how their policy will be implemented in practice?

That is not the case at all. We have outlined the services that minimum service levels will be applied to, but it is right to consult widely on how the appropriate regulations will work in practice. As I have said, if voluntary MSLs are in place—as they are in some sectors at the moment—and we do not need to regulate those sectors, that is a preferable way to proceed.

My Lords, I was chair of ACAS for seven years. Has ACAS been consulted about these proposals? If not, why not? I was asked by a friend who sits on a school board how, if a head teacher decided to sack all the staff in their school, any minimum service or safety level would be fulfilled. Would the Government step in to provide staff?

As I said in response to earlier questions, we do not desire or wish to sack any public sector workers in any sectors. We are in the business of increasing the number of public sector workers, not sacking them.

My Lords, I declare my entry in the register of interests. The Explanatory Notes to the Bill say:

“This Bill and subsequent regulations are designed to enable employers to require enough workers to work so as to ensure minimum service levels”.

How will they make them work? I am the president of BALPA, the pilots’ union. We have an understanding with all the airlines that any pilot who feels unfit to fly the plane can declare themselves as such. What about a train driver? Will you say to them, “You’ve got to drive this train, however you feel” or will there be a back-up? Frankly, this legislation is just not thought through. What are the sanctions? You cannot direct people to do this without having some sanctions.

Much has been made of Europe. The European Trade Union Institute, the holding body for the international trade union movement, has fact sheets on 48 countries in Europe. Britain comes well down the list on flexibility of labour. Although a number of countries supposedly have agreements, they do not appear to be enforced. How much study has the Minister done?

My next brief point is that we are taking a chance, are we not? You can take a horse to water, but you cannot make it drink. I see here shades of 1972: the dockers in Pentonville prison and a Government completely out of control who then ask the country—as Ted Heath did—“Who runs Britain?” and they say, “Not you, mate.” For the first time in modern history, the Labour Party has committed itself to doing something, which is to repeal this if it becomes an Act. I actually believe the Labour Party, because the Bill is so ridiculous that it could not stand on the statute book anyway. Does the Minister wish to provide us with an autumn of fun and games—because that is when this will stretch on to—or would he like to advise his department to go back to the drawing board and see whether this is a sensible way of solving a problem which probably does not exist?

There were a huge number of questions in my noble friend’s statement. He asked me for examples of other European countries, which I am happy to provide to him. In Spain, France and Belgium, there are statutory minimum service levels in the ambulance and fire services. Many other European countries have statutory bans on border service workers striking at all. He raised the spectre of people going to prison, but that is not the case. There is no element of criminality involved in this. This is not the criminal law; it is the civil law. He asked me how it would work in practice. When a minimum service level is set, an employer will issue enough work notices to sufficient workers to ensure that the key sectors are covered in order to provide those minimum service levels.

My Lords, the Minister and the Government are being a little disingenuous when they refer to what happens in Europe. I am delighted to follow the noble Lord, Lord Balfe. The fact is that the countries the Minister listed, generally speaking, engage in sectoral collective bargaining, and where there are minimum service levels—if they are implemented at all; it is a moot point whether or not they are—they are within the framework of sectoral collective bargaining. The Minister will know that about 80% to 90% of workers in various areas in other countries are covered by sectoral collective bargaining, but that is not the case here. Will the Minister consider putting in place a structure for sectoral collective bargaining before we move to what is clearly unworkable legislation on this basis? While I am on my feet, perhaps I could ask the Minister to respond to my noble friend’s question about ACAS.

There are not just minimum service level obligations in other European countries, there are outright bans on striking. For instance, there are bans on border security strikes in Germany, Spain, Italy, France and Belgium. We are not proposing to go nearly as far as those countries have in banning strikes in these areas. We are merely suggesting that unions should provide minimum services during strikes. As for consultation, the legislation was drawn up very quickly and in haste. We have not been able to do all the consultation we would like, but noble Lords will be reassured to know that for the actual implementation of the secondary regulations—which will contain most of the detail—we will of course carry out full consultations.

My Lords, I have to return to the European precedents that the Minister cited—the Prime Minister has cited them as well—starting with France. Can the Minister tell us how successful the legislation has been in France? How many fewer days of strikes were there in France last year, compared to the United Kingdom?

I cannot give the figures for the number of days lost in France to strike action off the top of my head. I will ask a rhetorical question: if the legislation will be so ineffective and have no effect whatever, what are the Opposition so concerned about?

Will the Minister write to me with those figures? I think they will be very instructive. If he writes to me and puts a copy of the letter in the Library, we can use it when we come to debate this.

I am here to respond on what happens in the United Kingdom, but if the figures on days lost in France are easily available, then of course I will supply them.

My Lords, in principle, I am in favour of the Bill. Obviously, while we must preserve the worker’s right to take industrial action, no responsible person is going to go on strike with consequences that might even threaten the life of fellow citizens if this is taken too far in some public services, such as the health service, at the moment. One would hope that in even the bitterest industrial dispute both sides would have in mind that their argument over whatever aspect of pay, terms or conditions they are at odds on should not lead to serious harm to the greater public good and, in particular, vital things such as people’s health and safety.

I am listening to this debate with interest to see how that essential level of service is to be determined. If we ever face a situation in which strikers are being totally unreasonable and trying to cause immense damage to further their pay claim, that raises all kinds of problems about martial law and everything else to try to keep things going. However, if an employer sets out the minimum level of service in their area—as will be required—how objective will that be? What judgment will be made about what is essential? In theory, could an employer say that all employees should stay at work to maintain an essential level of service? Is there a requirement for some consultation about that level? Can any challenge be placed to the level the employer sets down, short of legal challenge and an attempt for judicial review?

In the present circumstances, we would all like to be reassured that the bitter disputes going on in the public sector, which we all hope will be resolved, will not threaten people’s safety or vital national interests. However, how exactly will we check that the powers of the Bill will not be abused, with some public or private sector employer deciding its own definition of a vital level of employment? In debating the Bill, we will need to have considerable detail and give considerable thought to what it will mean in an industrial dispute in practice, day by day and on the ground, and how it will be applied.

I welcome my noble friend’s support for this legislation in principle. I am happy to reassure him that the minimum service level will not be set by employers; it will be set by Parliament through affirmative regulations. Of course we will consult widely on those regulations. There will be regulations in each individual sector because, as he correctly states, the level varies from sector to sector. This House will vote on those regulations when we bring them forward, but it is our preference not to have to bring them forward. As I mentioned earlier, the nursing unions are very responsible and agree minimum service levels already—voluntarily—so we therefore hope not to need to legislate there, but of course that is not the case for ambulance drivers, where we may need to take action.

My Lords, I regret that we are having the strikes; I speak with some background in the trade union movement. I urge the Government to be careful. They have had great difficulties in dealing with climate change demonstrators—it is extraordinarily easy these days to disrupt the operation of business in this country. I do not know what the Government would do if they set their minimum levels and they required the employer to get the employees to do the work, and all those employees went off sick. What action would they take and how would the law stand? The Government should be very careful indeed before they move forward, and I am surprised to hear that they have not even consulted ACAS. If we do not watch out, we will go over some silly old ground that we have covered before which caused great damage to the country, so I urge the Government to act with care and caution.

I welcome the noble Lord saying that he regrets the strike action—I think that is the first time I have heard anybody from the Opposition say that they regret the inconvenience that has been caused to the public. I take in good heart his other comments; of course we will proceed with care and caution, and with full consultation. However, we are very clear that this action needs to be taken in some sectors, because the public are getting tired of the disruption caused by the actions of one or two unions to their ability to go about their daily business.

My Lords, I will follow up on the point made by the noble Lord, Lord Clarke. It is quite clear that the Government will not be setting the personnel levels that companies will need to deliver the service levels that the Government are setting. It will be up to local management to decide how many people they need. The point that the noble Lord made was not addressed by the Minister; perhaps Second Reading will be a chance to go through that in more detail.

The Minister will have to address the point about sanctions. What happens if named individuals on work orders refuse to work? He says, “We have no intention to sack people” but essentially, if someone refuses to do something, that is grounds for sacking. There are two sides to this, and when we come to Second Reading, the Minister will have to be able to answer these sorts of questions on the operational detail that I was talking about. Can he undertake to come back on Second Reading with that level of detail so that we can move forward sensibly on this legislation?

As I said in my short remarks, the overall minimum service level will be determined in regulations approved by Parliament, and the noble Lord is right that the implementation of that—in other words, how many workers will need to turn up to deliver that service level, plus, presumably, a few for reserve, et cetera, for those who might be sick on the day—will need to be set by individual employers on the ground in response to the different circumstances that will apply. The ultimate sanction is the same as for anybody who does not turn up to work now: they are in breach of their contracts and they will lose their right to unfair dismissal protection.

The Minister makes the point that the regulations are crucial to the operation of this statutory scheme. Will he undertake that, when the House comes to debate the Bill at Second Reading and in Committee, draft regulations will be made available?

We will do our best to deliver the regulations in the first three sectors that we said we will legislate in, so that noble Lords will have a full opportunity to study them as we are debating the legislation.