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Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023

Volume 834: debated on Wednesday 6 December 2023

Motion to Approve

Moved by

That the draft Regulations laid before the House on 7 November be approved.

Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

My Lords, these draft regulations will be made under the powers conferred by the Trade Union and Labour Relations (Consolidation) Act 1992, as amended by the Strikes (Minimum Service Levels) Act 2023. The regulations will apply across Great Britain, and their purpose is to set minimum service levels for specified services that can apply during strikes affecting passenger rail services.

The minimum service levels are designed to balance the public’s need to make important journeys and the impact of rail strikes on the economy with the ability of rail workers to take strike action. Since 2019, there has not been a single day without either a strike happening on the railways or mandates for strikes outstanding. The result has been many periods of disruptive strike action, with widespread consequences for passengers and the wider economy. This Government want to see an end to this disruptive strike action, but the trade unions continuing to call for it has led to these regulations being necessary.

I acknowledge the amendments to the Motion relating to this instrument. The regret amendment in the name of the noble Lord, Lord Liddle, references the views of the Delegated Powers and Regulatory Reform Committee on the detail of the policy in the Act, the retrospective element of the regulations, the fact that the impact assessment was not published at the time of laying, contractual concerns, and concerns for the ability for workers to take strike action. The fatal amendment in the name of the noble Baroness, Lady Bennett, references concerns around the impact of these regulations on the workforce and about safety, and raises concerns that the Act places undue obligations on trade unions.

In its 3rd Report of Session 2023-24, the Secondary Legislation Scrutiny Committee noted that more information should have been provided to explain the policy decision in the Explanatory Memorandum. The committee also noted that the impact assessment was not published at the time of laying and mentioned the issuance of an initial review notice by the Regulatory Policy Committee. I will address the amendments to the Motion and the Secondary Legislation Scrutiny Committee’s remarks but will turn first to the instrument under consideration today.

The Strikes (Minimum Service Levels) Act 2023 establishes a framework for the making of regulations to set minimum service levels during strikes. The Act provides that for certain sectors, including transport, the relevant Secretary of State may specify, in regulations, the relevant services and the minimum service levels that will apply. These regulations for passenger rail specify three categories of services that minimum service levels apply to, and the associated minimum service levels.

Thecategories are: category A, train operation services; category B, infrastructure services; and category C, light rail services. For category A services, the minimum service level is specified as the

“provision of the train operation services necessary to operate the equivalent of 40% of the timetabled services operating during the strike”.

With regard to category B services, the minimum service level is specified as a list of priority routes to be operated for the specified hours of 6 am to 10 pm during strike action. The priority routes are defined in the regulations and listed in the schedule to the regulations. In addition to the listed priority routes, the minimum service level also applies to any part of the network that is within a five-mile radius of the priority routes and is a loop, siding, or a line that connects the priority routes to freight terminals, stabling facilities, or depots used for rolling stock or for plant, equipment, and machinery used in providing the other infrastructure services. This is to enable trains to travel to and from berthing areas and terminals to the priority routes.

With regard to category C services, the minimum service level is specified as the provision of the train operation services and infrastructure services necessary to operate the equivalent of 40% of the timetabled services during the period of a strike for the relevant light rail system.

I now turn back to the amendments to the Motion in the name of the noble Lord, Lord Liddle, and the noble Baroness, Lady Bennett, and the recent remarks by the Secondary Legislation Scrutiny Committee to which I previously alluded. I regret that the impact assessment was not published at the time of the laying of these regulations. My department has a good track record in the quality of our impact assessments. It was the right decision to revise the impact assessment and allow the committee time to review.

Although I regret that the Regulatory Policy Committee has not yet been able to issue an opinion, it is important that noble Lords can scrutinise the impact assessment in this debate, which is why we have now published the impact assessment. The Act sets out the framework, and it was correct that these regulations set out the policy detail of passenger rail minimum service levels. Each sector being debated today has its own complexities and operates very differently. There is no one size that fits all models.

I now turn to the retrospective provisions. The disruption caused by continuous strike action puts these passenger rail regulations in a different position to other sectors. The Government have therefore taken the step of including retrospective provisions to create certainty for employers that strikes called under mandates secured before the primary legislation received Royal Assent would be in scope. This legislation is not intended to prevent workers from taking strike action. My department launched a consultation on minimum service levels for passenger rail to develop a more detailed understanding of how minimum service levels might impact on staff. This department has at every stage carefully balanced workers’ continued ability to take strike action against the needs of people to make essential journeys by rail. It will be at the discretion of individual employers whether to issue work notices to deliver minimum service levels. There are no plans to compel employers to use these regulations. There is comfort in that the Act includes the safeguard that employers should not identify more persons than are reasonably necessary to deliver the minimum service level.

Finally, I turn to the fatal amendment. Tackling strikes in transport was a 2019 manifesto commitment. As we are seeing now, when the rail trade unions choose to strike, people, including doctors, nurses and teachers, experience disruption in accessing their places of work, schools and vital medical appointments. In some cases, they are unable to travel at all. If the House supports this amendment, it will be voting against protecting passengers from the disproportionate impacts of rail strikes. I beg to move.

My Lords, it is a great honour for me to speak to this Motion. It marks my return to the Labour Front Bench, which I am delighted by.

Alas, I feel a very personal interest in this matter. My father was a Carlisle railway clerk and a long-standing member of the Transport Salaried Staffs’ Association. I was so steeped in Labour and trade union history when I was a student that my thesis was on railway industrial relations.

Growing up, one of the things that I learned about industrial relations, particularly on the railways, was that the right to strike was fundamental but should be used sparingly. Despite employers and employees sharing common interests, there will be conflicts of interest. Collective bargaining to resolve those conflicts will not work unless the unions have the power to strike, even if they rarely use it. That is of fundamental importance.

That power is not absolute. As my noble friend Lord Hendy said in an earlier debate, it is not untrammelled. There must be ballots and regulations on picketing and secondary action. Labour has accepted all that. Our objection to what is being proposed for the railways is that the practical effect of these minimum service levels is to eliminate the right to strike for vast numbers of railway workers—40% by some estimates.

That is correct—you have to think about it for only a second—because if you are to run any trains on the principal parts of the network, you have to keep all the staff in place necessary to keep the network safe and running. Anyone working in a signal box has to be on duty, or in a control room; station staff have to be there, because they play a vital role in ensuring passenger safety; and the permanent way teams have to be there to do their work on maintenance of the track. If that does not happen, you will be running an unsafe railway in an incredibly short time. As my noble friend Lord Coaker said in his remarks about the border staff, this is a wholly disproportionate measure in the case of the railways.

I also think—one of the Cross-Benchers has said it—that the fundamental test of these sorts of regulations is whether they are likely to reduce industrial action and lead to better industrial relations. I do not believe that is the case. In fact, I think these compulsory work notices will lead to more tense and problematic industrial relations. They will encourage arbitrary behaviour by management in choosing who it should issue work notices to, and this is a serious problem. It will all be done by local managers who will think that if they choose someone they do not like for a work notice, they would lose the right to claim unfair dismissal, and that would be very serious indeed.

I also do not like the way in which the processes have been done on the regulations. Why have the Government suddenly introduced retrospective application? If that was going to be the case, it should have been on the face of the Bill. Where has all the new content about picketing come from? Why was that not on the face of the Bill? This is introducing major things by statutory instruments which have not had the proper opportunity for scrutiny and amendment. Then there is the Minister’s confession about the regulatory impact assessment: it has come late and there has been no opportunity for the House to review it.

Some people may think it ironic that we are making these speeches on the day when ASLEF has called a national rail strike. I do not think this legislation would have done anything to stop the strike. What has to stop these strikes is a better government policy towards rail transport. The Government do not have to be there when the unions and the rail employers are negotiating, twisting the arms of the rail employers, as they have been. The railway faces a very challenging situation. Financially, public subsidy has gone up—not as a result, by the way, of pay going up, because pay has actually fallen in real terms in the last year or two—but the financial position is more difficult. There is a change in travel patterns, with a collapse in season ticket revenue and commuter travel following the pandemic, and there is a huge technological advance that needs to be incorporated in the way services are run. The truth is that a big agenda of reform is needed which needs to be worked through via social partnership, not through this kind of counterproductive legislation. What the industry needs is a new start and I hope that the coming—and perhaps soon coming—Labour Government will be able to give it.

Amendment to the Motion

Moved by

As an amendment to the motion in the name of Lord Davies of Gower, to leave out all the words after “that” and to insert “this House declines to approve the draft Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023 because they expose trade unions to liability of up to £1 million, make trade unions act as enforcement agents on behalf of employers and His Majesty’s Government, are likely to prohibit more than 40 per cent of rail industry workers from taking part in strike action, and fail to ensure that rail services will be safe on strike days.”

I am delighted to welcome the noble Lord, Lord Liddle, back to the Labour Front Bench, as I am sure the whole House does. I agree with everything he said, except to make the point, as I did with the previous Labour Front Bench speech, that it appears to be more of an argument for my fatal amendment than for a regret amendment. I also very much agree with him about the need to change the way in which our railways are run. If we bring them back into public hands and run them for public good, not private profit, that would be a very good foundation for resetting our industrial relations in the operation of our railways.

I am not going to repeat all the points made by the noble Lord, Lord Liddle. I have one question for the Minister, raised by the TUC briefing and I have also seen it in other contexts. If there is a partial service running as required under the minimum service levels, we all know that there are likely to be significant overcrowding and safety issues. I am sure many Members of your Lordships’ House picked up this piece of paper and thought, “Well, I’d love some minimum service levels on the trains I ride on non-strike days”. We know how crowded trains can get when they are cancelled for other reasons. Can the Minister assure rail workers that they can continue to apply work-safe principles, and stop working if it is no longer safe for the trains to continue to run? It needs to be clear that they will not face legal consequences for making a safety decision. We do not want what are often not particularly well-paid or senior staff in a situation where they make decisions with the feeling that such consequences hang over their head. I beg to move.

My Lords, my criticism of the proposed legislation is a quite simple one: it will not work. I listened to the Minister who, I have to say, went through his brief faster than any train I have been on recently. It is not a new idea. It was considered by the Thatcher Government and rejected. It was considered by the Cameron Government and rejected. It will not work. The problem is that this has been put together by lawyers who have no concept of how the railway industry actually works, or how train crews are rostered and how people are laid down for their various duties. The rostering of train crews is done at local level. The management and the local district committee—the shop stewards, if you like—sit down at every timetable change in May and December to decide the future rosters. The trade union side will obviously not sit down and discuss rostering under this minimum service level. As for choosing the name “minimum service level”, what else have we had in the railway industry for some time but a minimum service level?

It is not just the Labour Party and the trade union movement that are against this. The Rail Safety and Standards Board has said that it has considerable reservations about rail safety in future. That is not an organisation that one would normally regard as particularly left wing in its outlook. What the Government are proposing will poison industrial relations within the railway industry for years to come.

I have a couple of questions for the Minister. What happens if a minimum service level driver is rostered and declines to pass through a picket line at a particular depot? Will the Minister prosecute the driver or the trade union of which he is a member? The chance of conflict because of this barmy legislation cannot be emphasised too much. I said earlier—I do not wish to detain the House—that it is not just the Labour Party against it. I commend the Minister to read a paper prepared by Nicholas Finney OBE for the Centre for Policy Studies, that well-known left-wing organisation. He attacked the whole concept because, like me, he says it will not work. Maybe he will be regarded as a destructive member of British society. He is, or was, the chairman of the Wantage Conservative association, so if someone like him feels that this legislation is impractical, the Minister really ought to look again.

I am almost speechless at the stupidity of the Government bringing forward this legislation. I repeat that it will poison industrial relations within the railway industry for years to come, and I beseech the Minister even at this late hour to take some proper advice and not to make this into a lawyer’s dream.

My Lords, I support the amendment in the name of the noble Lord, Lord Liddle. I regard these regulations as even more inappropriate than the other sets of regulations that we have just discussed, and even more clearly designed just to provoke an adverse reaction from the workers concerned.

In the previous regulations, the Government relied on the argument that the workers concerned—border security staff and ambulance staff—provide an irreplaceable service. The same is not true of railways. If the trains are not running we can usually catch a bus instead, or maybe drive. Obviously rail strikes have an economic impact, but it is not of the same order as that caused by ambulance or border staff strikes. You take away the right to strike only in extreme circumstances, and these are not extreme circumstances.

The Transport Committee in the other House, which is chaired by a Conservative MP and has a Conservative majority, has criticised these regulations and the Government’s plans for the railways. It questioned whether those plans would do anything to improve relations with rail employees—I think we can more or less answer that question here. The committee questioned whether there might be unintended consequences, in that this could lead to other, more disruptive forms of industrial action, such as wildcat strikes. It also asked whether minimum service levels would lead to better service for customers than that already provided by train operating companies on strike days. It was deeply unimpressed by, and expressed its dissatisfaction with, the Government’s one-sentence answer to its suggestions.

Tomorrow, as the Minister will undoubtedly be aware, is strike day on Great Western Railway. As on previous strike days, we regular travellers are informed that a minimum one-hourly service will be provided between 7 am and 7 pm. In my experience, when the company says that a train will run at a particular time, it generally adheres to that timetable—which is not always what we get on our railways these days. So a minimum service is already being provided.

Another obvious concern is that, as the noble Lord, Lord Liddle, said, rail services are extremely complex, with major impacts of one part of the service on other parts of the service, and an obvious interaction with devolved services. Providing a safe minimum service level is therefore very complex. As the Transport Committee noted, the Government have not provided the necessary detail on how they will provide the safe level of service required. In particular, the operation of signal services is so specialised that the provisions will effectively mean that individual staff will have to be specified as being required to work, if a minimum service is to be provided. In other words, those staff will have the right to strike removed from them. In effect, they will lose their rights.

This is bad legislation, badly planned—and so far, as attempted by the Government, badly implemented. I am fairly certain that it will do absolutely nothing to improve either the services for rail passengers or the situation of our train operating companies, which are fighting to provide a reasonable service in difficult circumstances.

My Lords, I thank the noble Lords who have taken part in this debate for their consideration of these draft regulations. This is about achieving a balance between the rights of trade union members and the public’s expectation of being able to travel to work or, indeed, for any other social reason. At the end of the day, transport is at the heart of our nation’s success.

A number of questions have been asked, which I will try to address as briefly as I possibly can. This Government understand the difficulties imposed on the public by strikes on the passenger rail network. While it is right that workers are able to take strike action, it is a priority for the Government to protect the public and businesses from the disproportionate impact of strikes, including on people’s ability to make important journeys and on their livelihoods.

The careful design of the regulations, based on evidence from the public consultation and further consultation with stakeholders, means that minimum service levels will deliver a considerable improvement in service levels and experience during strikes. The economic damage to businesses and the wider economy would also be limited, and the industry would have the flexibility it needs to ensure that the minimum service levels are deliverable. At every stage of policy development, my department has carefully balanced workers’ ability to take strike action against the needs of people to make important journeys by rail, such as to get to work and to access vital services such as education and healthcare. Ensuring that this intervention is proportionate has been a central and continual consideration. Subject to parliamentary approval, we expect the regulations to come into force before the end of this year. In-scope employers would then be able to use minimum service levels for any strike action after they come into force, should they choose to do so.

I turn to some of the issues raised by the noble Lord, Lord Liddle. The Government firmly believe that the ability to strike is an important part of industrial relations in the UK, rightly protected by law, and understand that an element of disruption is inherent to any strike. But we also need to maintain a reasonable balance with the needs of the public and the impact of strikes on businesses and the wider economy. In cases where work notices are issued by employers, this policy will impact some rail workers’ ability to take strike action. As such, the department has, at every stage, carefully balanced workers’ ability to take strike action against the needs of people to make important journeys by rail.

Evidence provided through consultation and engagement with industry indicates that the proportion of workers needed to deliver the minimum service levels will vary by employer and job role. In critical operational roles, for example, we understand that more than 40% of staff are likely to be required to work to deliver a service level of 40% under the categories A and C of the regulations. The extent of the coverage of priority routes under category B also means that the proportion of infrastructure workers required to deliver the infrastructure minimum service level will vary by geography.

On the safety point raised by the noble Baroness, Lady Bennett, passenger rail employers must comply with safety requirements on the railway. The regulations do not override any existing safety rules or obligations. Moreover, the regulations have been designed to fit within the existing safety frameworks, and the department has consulted with the Office of Rail and Road during development.

Where an employer decides to issue a work notice, the Act requires that the work notice identifies the persons required to work during the strike in order to secure that the levels of service are provided and to specify the work required to be carried out. Employers can identify only persons who are reasonably necessary to provide the minimum levels of service under the regulations in the work notice. We consider that this would include workers who are reasonably necessary to meet legal and contractual obligations relevant to the delivery of the minimum service level, including safety obligations.

It is therefore expected that services delivered on strike days under minimum service levels will be as safe as services delivered on strike days without the use of minimum service levels. Great Britain is a world leader in rail safety. Ensuring high standards of rail safety will always remain a top priority for this Government.

With respect to the issue raised by the noble Lord, Lord Snape, under the parent Act, trade unions must take reasonable steps to ensure that any of their members named on the work notice comply with that notice or the union will lose its legal protection from damages. Workers who take strike action despite being included on a valid work notice will lose their automatic protection from unfair dismissal. It will be for individual employers to determine whether any disciplinary action should be taken against employees for non-compliance with a work notice or legal action against a union that fails to take reasonable steps.

These regulations strike a carefully balanced and proportionate approach to mitigate the impact of strikes on the passenger rail sector for passengers and our economy. The regulations make possible a considerable improvement in the service that can be delivered during rail strikes. This will support passengers to make important journeys, including getting to work and accessing vital services, and will limit negative impacts on the economy. This is proportionately balanced with workers’ ability to take strike action, ensuring that impact is felt when a trade union goes on strike but passengers can still expect a consistent, albeit lower, level of service to be provided.

Therefore, although I am sure we all hope that strike action can be avoided, implementing these regulations will provide a means of addressing the disproportionate impacts that strikes have on the public, communities, businesses and our economy when they take place.

My Lords, I thank the Minister for answering our questions and for what has been the clearest, least-hedged explanation from the Government—that workers can be sacked under this legislation, which of course contradicts what was said in the other place. I am also pleased with what the Minister had to say about how safety rules override the regulations we are debating. However, I hope that the Government will make that fact very clear and publicise it to workers in the rail industry, who may face difficult situations under extreme pressure due to crowded trains and people seeking to crowd on to them, so that people are aware. I am aware of the hour so I will simply stop at this point and beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.

Amendment to the Motion

Moved by

As an amendment to the motion in the name of Lord Davies of Gower, at end to insert “but that this House regrets that the draft Regulations contain policy detail that was not included in primary legislation, contrary to the recommendation of the Delegated Powers and Regulatory Reform Committee; that their retrospective element will create uncertainty; that the impact assessment is not sufficiently robust; that it is unclear whether contractual relationships will impact the issue of work notices; and that they may prevent workers from being able to take industrial action.”

My Lords, I will test the opinion of the House on the amendment standing in my name but, before that, I thank the Minister for his carefully considered reply. I did not agree with it, I am afraid; I just do not think that what is proposed is proportionate in terms of workers’ right to strike. I sincerely hope that employers and companies with common sense will not try to make use of these regulations. In that spirit, I wish to test the opinion of the House.

Motion agreed.