Moved by Lord Johnson of Lainston That the draft Code of Practice
laid before the House on 13 November be approved. Relevant
document: 3rd Report from the Secondary Legislation Scrutiny
Committee (special attention drawn to the instrument) The Minister
of State, Department for Business and Trade (Lord Johnson of
Lainston) (Con) My Lords, I beg to move that the draft Code of
Practice on Reasonable Steps to be taken by a Trade Union (Minimum
Service Levels),...Request free trial
Moved by
That the draft Code of Practice laid before the House on 13
November be approved.
Relevant document: 3rd Report from the Secondary Legislation
Scrutiny Committee (special attention drawn to the
instrument)
The Minister of State, Department for Business and Trade () (Con)
My Lords, I beg to move that the draft Code of Practice on
Reasonable Steps to be taken by a Trade Union (Minimum Service
Levels), as laid before the House on 13 November 2023, be
approved. This code of practice, which I will refer to as the
code for the remainder of this debate, provides important clarity
on how trade unions can meet the legal requirement in the Trade
Union and Labour Relations (Consolidation) Act 1992, as amended
by the Strikes (Minimum Service Levels) Act 2023.
As noble Lords are aware, the 2023 Act enables regulations to be
made specifying minimum service levels and the services they
apply to. Where minimum service level regulations are in force,
if a trade union gives the employer notice of a strike action,
the employer can issue a work notice to the trade union ahead of
the strike identifying the persons who are required to work and
the work they are required to carry out to secure the minimum
service level for that strike period. Trade unions should then
take reasonable steps to ensure that their members who are
identified in a work notice comply with that notice and do not
take strike action during the periods in which they are required
by the work notice to work.
During the passage of the Strikes (Minimum Service Levels) Bill,
the Government committed to bringing forward a statutory code of
practice to provide more detail on the reasonable steps that
trade unions should take. In accordance with the 1992 Act, the
Secretary of State consulted with ACAS on the draft statutory
code and, on 25 August, published a draft code, enabling trade
unions, employers and other interested parties to contribute
their views. Careful consideration was given to those views and,
as a result, important changes were made to the draft code. An
updated draft code was laid in Parliament on 13 November.
Alongside the code, we have supplemented the more detailed
provisions of the Act on work notices by publishing non-statutory
guidance for employers—that is important—setting out the steps
for employers to take. These include engaging with trade unions
and workers when developing the process, consulting with the
trade unions on the numbers required to work and the work they
must do, and having regard to their views before issuing the work
notice and notifying the workers.
The code before the House today sets out four reasonable steps
that trade unions should take to meet the legal requirement under
Section 234E of the 1992 Act. Although the code itself does not
impose legal obligations, it is admissible in evidence and taken
into account where a court or tribunal considers it relevant.
First, trade unions should identify workers who are its members
in a work notice. Secondly, trade unions should send an
individual communication, known as a compliance notice, to each
member identified in a work notice to advise them not to strike
during the periods in which they are required by the work notice
to work as well as to encourage them to comply with the work
notice. Thirdly, trade unions should instruct picket supervisors
to use reasonable endeavours to ensure that picketers avoid, so
far as is reasonably practicable, trying to persuade members who
are identified in the work notice not to cross the picket line at
times when they are required by the work notice to work. Finally,
once a work notice is received by the union, trade unions should
ensure that they do not do other things that undermine the steps
they take to meet the reasonable steps requirement.
It is worth noting that the code being debated today reflects
much of the feedback that we received in the consultation on the
earlier draft. For example, the updated code no longer includes a
step requiring trade unions to communicate with their wider
membership who are called to strike. The Government have changed
the language so that it no longer requires those on the picket
line to encourage individuals identified in a work notice to
attend work. Instead, it now makes clear that those on the picket
should simply refrain from encouraging those identified on a work
notice to strike where they are aware that this is the case.
Having explained the background to the code, I will now turn to
the fatal and regret amendments that have been laid on this code
by the noble Lord, , and the noble
Baroness, Lady Bennett of Manor Castle. I will start with the
fatal amendment, much of the content of which was more properly
for debate during the passage of the Bill. I have no intention of
re-running the debates on the Act which Parliament passed earlier
this year, but I do want to remind noble Lords of why it was
brought forward.
4.15pm
The Government firmly believe that the ability to strike is an
important part of industrial relations in the UK, but this must
be proportionate. Over the past year, there has been significant
disruption, with massive impacts on the public. Since August
2022, 4.5 million days have been lost due to labour disputes. As
a result, people have been unable to access key services that
they rely on. For example, 1.1 million appointments have been
rescheduled by acute NHS trusts due to strike action, and nearly
one in five people reported having their travel plans disrupted
by rail strikes. When you start adding on the impact of strikes
in schools and other key areas it becomes clear why the
Government had to take action.
It is, of course, this legislation and not the code, which is
often discussed, that introduced the requirement for trade unions
to take reasonable steps. During the passage of the Bill, noble
Lords on the Benches opposite repeatedly criticised the fact that
trade unions would not, without further guidance, know what this
means in practice. Indeed, both the TUC and the Joint Committee
on Human Rights asked for greater clarity on what the Government
considered this to mean. This is exactly what this code provides.
It should help not only to avoid expensive litigation by giving
unions clarity on their obligation but to protect them from the
very liabilities that the noble Baroness raises in her fatal
amendment. Without the code, the duty on trade unions still
exists, but there is much greater uncertainty for trade unions
over what it means.
Additionally, I reiterate the points made by the Government
during the passage of the Bill that we are confident that the
Strikes (Minimum Service Levels) Act is compatible with our
international obligations, including the European Convention on
Human Rights, and that minimum service levels can be a
proportionate means of achieving the balance between the ability
of workers to strike and the rights of the public to access
certain services. Minimum service levels do not remove the
ability of strikes to take place. They simply seek to ensure that
there is a balance between the ability to strike with the rights
and freedoms of the public. This code, by providing much greater
legal clarity for trade unions, further supports compliance with
Article 11. As set out during the passage of the Bill, most major
European countries, including France, Spain and Italy, have had a
minimum service level regime in place for many years. Even the
ILO recognises that they can be an appropriate mechanism to
balance the rights of the public with unions and their
members.
I call on all noble Lords to reject the regret amendment that has
been tabled by the noble Lord, Lord Collins. We are confident
that the draft code is within the scope of the 1992 Act as
amended by the Strikes (Minimum Service Levels) Act 2023. Section
234E and amended Section 219 are clear that a union that fails to
take reasonable steps to ensure that all members identified in
the work notice comply with the notice will lose its protection
from certain liabilities in tort. The Government therefore
consider that a code of practice that sets out the reasonable
steps a union should take is within the scope of the Act.
Furthermore, Section 203 of the 1992 Act provides that the
Secretary of State may issue a code of practice containing such
practical guidance as he or she thinks fit for the purpose of
promoting the improvement of industrial relations.
I want to respond to a point raised by the Secondary Legislation
Scrutiny Committee regarding the time until implementation and to
thank it for its considerations and its report on the code. The
Government believe that there is sufficient time for employers
and unions to get to grips with the practical implementation of
the strikes Act. Trade unions and other stakeholders were
consulted on the draft code in August and have been able to see
the updated code since it was laid in Parliament on 13 November.
They have therefore had sufficient notice of the contents of the
code and sufficient time to prepare before it is expected to come
into effect. Delaying commencement of the code would delay
minimum service levels being implemented, meaning that strikes
could continue to have disproportionate and harmful impacts on
the lives and livelihoods of the general public for longer.
The code under consideration in the Chamber today has been
designed to address the concerns raised in this House and the
repeated requests for clarity by providing assurance for trade
unions on the reasonable streps that they should take. If this
code is approved by Parliament, it will be issued and brought
into effect by the Secretary of State in accordance with the
procedure set out in Section 204 of the 1992 Act. The
Government’s intention is for the code to be in effect before
regulations implementing minimum service levels come into force.
To achieve this, the Government are planning for the code to come
into effect very shortly after the commencement order relating to
it is laid. I hope that your Lordships will support this code. I
beg to move.
(Lab)
My Lords, this House, by quite large majorities, gave the elected
Chamber the opportunity to think again on this legislation—and,
unusually, more than once. The reason, quite simply, is that no
one really knows what this law will mean. Trade unions do not
know what reasonable steps they will need to take to protect the
right to strike. Even Ministers —and I am glad to see the noble
Lord, , in the Chamber—could not
make up their mind on what it means. , the Minister, told the
Commons on 22 May 2023:
“The reality is that nobody will be sacked as a result of the
legislation”.—[Official Report, Commons, 22/5/23; col. 103.]
That is what he told the elected Chamber. However, the noble
Lord, , told this House that
workers who receive a work notice will lose protection from
dismissal. The code states that the compliance notice should
contain a comment stating that the two notices should be received
from the employer and that if the member receives both, they
“must carry out the work during the strike or could be subject to
disciplinary proceedings which could include dismissal”.
The Minister talked of minimum service levels in Europe. Nobody
is against minimum service levels; when it comes to life and
limb, they are essential. But in every European country, they
work and are applied because they are determined by voluntary
agreement. People consent and co-operate; as soon as you remove
that consent, you are in trouble. That is why so many employers
are so against what the Government are proposing.
We remain very clear in our view that the Strikes (Minimum
Service Levels) Act is fundamentally unworkable and places undue
limitations on an individual’s freedom of association. Let me be
very clear to the noble Baroness, Lady Bennett of Manor Castle;
the only democratic way to get rid of this bad legislation is to
campaign for a Labour Government. We have promised to repeal this
legislation when we get into government, and we stand by that
pledge. I am sure the noble Baroness will agree that the
implementation of that pledge should not be frustrated by an
unelected Chamber.
As the noble Lord, , knows very well, it was
only late in the day that the Government committed to a statutory
code of practice. That was because this House scrutinised that
legislation and pushed this Government into trying to make it
clearer what the reasonable steps should be for a trade union. It
was this House that resulted in that change, and I am glad the
Government heard and responded.
Of course, as the noble Lord said, following consultation, the
Government did make some changes to the draft code; they have
removed the requirements to communicate with the wider
membership, as he says, and the duty on a picket supervisor has
changed from a positive one to attend work to a negative one of
ensuring that picketers avoid trying to persuade members on a
work notice not to work.
However, the code imposes significant new duties on trade unions
well beyond the scope of the Act, rather than simply providing
guidance about the law. It also places trade unions in the
position of policing members on behalf of an employer, acting
with the authority of the state. The code contains nine—I repeat,
nine—separate pieces of information that unions should include in
a compliance notice, with those named in the work notice clearly
and conspicuously.
The fact is that the code fails miserably to explain the legal
issues with necessary accuracy. It states that unions are advised
to tell members that they should receive from the employer a
statement that the member is an identified worker who must comply
with the notice given to the union. But, as the noble Lord said,
there is no obligation under the Act for an employer to
communicate with the workers named in the work notice. They need
do so only if they want to keep open the option of dismissing
them for not attending work.
What we do know—I will be very brief on this point—is that the
slightest transgression in an industrial action ballot can lead
to some employers seeking injunctions, even though the practical
effect of that transgression is nil, so there is a concern that
any deviation from the template contained in the code will invite
legal challenges from some employers. As the TUC said in its
excellent briefing, that would almost certainly lead some
employers to seek to legally challenge unions. I hope the
Minister will respond to that. Does he agree with that point of
view? Does he think that such satellite litigation will aid the
resolution of industrial disputes? Can he really explain the
rationale for including a pro forma template on top of the
guidance contained in paragraph 26?
Unfortunately, and sadly, that is not the only way in which the
code could instigate a legal challenge. There are plenty of areas
in the code that appear to allow for challenges, and that is
something that we really need to think about. It comes back to
the Minister’s original point on Report, which was that it will
be for the courts to decide what is a reasonable step. Everyone
in this House thought, “That isn’t really appropriate. Is that
going to lead to the settlement of disputes? Clearly not”.
One of the letters that the Secretary of State has had was from
the Joint Committee on Human Rights. I hope the Minister will
address its letter of 24 November today. It raised a number of
issues on the code, stating that it
“does nothing to reduce the impact of minimum service levels
imposed through Regulations on trade unions, requiring them to
actively encourage their own members to break their own
strike”.
I hope the Minister will address today the four specific
questions posed to the Secretary of State on the impact on
Article 11 workers’ rights of these regulations.
The fact is that, as my amendment states, the code and the
associated regulations will exacerbate conflict in the workplace.
The code contains so much uncertainty that we are sure to see
more legal action, which I am confident will entrench and prolong
disputes, thereby causing more harm to workers, employers and,
just as importantly, the public.
Amendment to the Motion
Moved by
As an amendment to the motion in the name of , to leave out all
the words after “that” and to insert “this House declines to
approve the draft Code of Practice on Reasonable Steps to be
taken by a Trade Union (Minimum Service Levels) because it
exposes trade unions to liability of up to £1 million, makes
trade unions act as enforcement agents on behalf of employers and
His Majesty’s Government, reduces the rights of workers to
withdraw their labour, introduces legal uncertainty, and breaches
international labour commitments.
(GP)
My Lords, the House is colloquially calling this a “fatal
amendment”. I know there are many people watching this debate who
may not regularly watch your Lordships’ House, so I will define
it as saying, “This House declines to approve the draft code of
practice”. That is what is happening here.
In speaking to my amendment, I am picking up the baton on this
subject from my noble friend Lady Jones of Moulsecoomb, who
worked on the legislation. She is currently enjoying an extremely
well-earned short break. That is a right to decide not to come to
work that Members of your Lordships’ House can exercise with
total freedom but which these regulations, the code and the
legislation behind them seek to deny to millions of workers.
4.30pm
My noble friend made powerful speeches on the irony of a
Government who have eviscerated public services, handed them over
to the untender mercies of hedge funds and investment managers,
and suddenly decided that there should be a minimum service level
when workers exercise their right to strike, which might turn out
to be higher than the service level that you get on normal days.
That is why I have put down this fatal amendment, and those that
follow. I am told by expert lawyers that there is a high
likelihood that the law, this code of practice and the subsequent
regulations are incompatible with Article 11 of the European
Convention on Human Rights, which concerns the right to freedom
of association. I note also that your Lordships’ House sought
extensively to amend what is now the Strikes (Minimum Service
Levels) Act, which shows noble Lords’ concerns. This is another
chance for your Lordships’ House to act.
I considered putting down only one fatal amendment, as a sample
for the whole, but I felt that that would be inadequate for the
range of concerns and fundamental issues before the House. It is
important that your Lordships know some of the reaction to the
code of practice and the subsequent regulations. The British
Medical Association said:
“We strongly call on parliamentarians to oppose the code of
practice and the MSIs”.
The Royal College of Nursing said:
“The imposition of the proposed code of practice, which underpins
the process for the serving of work notices on nursing staff,
would mark an alarming abuse of state power”.
Remember, I am quoting the Royal College of Nursing here. It went
on:
“Parliament must reject the code of practice, which seeks to make
trade unions responsible for breaking their own strikes. The vote
on the adoption of the code of practice is a de facto vote on the
freedom of working people to withdraw their labour”.
I am sure that many noble Lords have also seen the extensive
briefing from the TUC. In addressing the points made by the
Minister about why we should not throw this out because it has
already been passed, the TUC said:
“Significant legal grey areas remain meaning that workers and
employers will be uncertain where they stand”.
My understanding is that, if your Lordships’ House does not
support my fatal amendment today, within days—at most, weeks—all
this terribly unclear, complicated situation will be in practice.
Can the Minister confirm that in his response?
There is widespread agreement that these regulations are in
breach of international law and UK legal standards, and that they
breach the Government’s own promise to the Commons. I will not go
over the same ground as the noble Lord, Lord Collins, but, as he
said, Minister Hollinrake promised that no one will face the sack
as a result—although that is not what the code of practice
says.
I have already had quite a few people question whether your
Lordships’ House can follow a fatal amendment. Some 110 fatal
amendments have been put forward since 1950; indeed, Labour’s
Front Bench successfully defeated the Government using this
process here in this House in 2012. In the Strathclyde Review in
2015—I can see some Members of your Lordships’ House who are
vastly more expert on it than I am—the Parliamentary Secretary,
, described the Lords’ role in
rejecting statutory instruments, saying:
“It also does not reject statutory instruments, save in
exceptional circumstances”.
I suggest that noble Lords listen to the BMA, the RCN and the
TUC, as well as the legal concerns expressed by our own Secondary
Legislation Scrutiny Committee.
Furthermore, let us look to the report by the Joint Committee on
Conventions, in which the Clerk of the Parliament says:
“There is no generally accepted convention restricting the powers
of the Lords on secondary legislation”.
The report also noted that not blocking SIs has been described as
more of a political agreement between Labour and the
Conservatives than a constitutional convention, and has not been
accepted by the Lib Dems or the Cross-Benchers. The committee set
out examples of where it would be appropriate for the Lords to
reject statutory instruments or a code such as this. There are
situations in which it is consistent both with the Lords’ role in
Parliament as a revising Chamber and with Parliament’s role in
relation to delegated legislation for the Lords to threaten to
defeat an SI; an example it gave is when the parent Bill is a
skeleton Bill and the provisions of the SI are of the sort more
normally found in primary legislation.
The Lords Delegated Powers Committee described the Bill—now this
Act—as a skeleton Bill. I note that the Labour regret amendment
says that it goes beyond the scope of the Act. The noble Lord,
Lord Collins, suggested that your Lordships’ House should back
his regret amendment, which—let us be clear—has no practical
impact. It means that we will see this code of practice and the
subsequent SIs come into effect on the basis that, in something
like a year’s time, a Labour Government would reverse the
legislation. A week is a long time in politics; who knows where
we might be in a year’s time? Even more pressingly, what kind of
damage might be done to the structures of our unions—the people
who represent our workers—in that year? What will be left in a
year’s time to restore?
From my four years in your Lordships’ House, I know how regret
and fatal amendments usually go —I have seen it all too
often—but, if we are not going to take a stand now, when will we?
I will wait to see what others indicate and whether there will be
enough of a body in your Lordships’ House to call a vote on my
amendment. I have to act to act within the limits of the power
available to me but I know—like the five Tolpuddle Martyrs
sailing off for seven years of penal servitude under the obscure
and disreputable Unlawful Oaths Act 1797—that the wheel of
history turns eventually. One of the martyrs, George Loveless,
wrote this as he was sentenced:
“We raise the watchword, liberty. We will, we will, we will be
free!”
Many thousands of people continued bravely to work for the
freedom of those martyrs and the rights that they espoused in
their absence, eventually winning the men’s freedom. They then
won the right to withdraw their labour, thought now to be
definitively established. That people should have hope is
crucial—it matters—which is one more reason why I put down these
fatal amendments. We know that there is significant, strong
opposition to these regulations, and a determination to stand
firm. If others will not ensure that there is parliamentary
expression of that, let me say for the record in Hansard that the
Green Party will step up to the plate.
(LD)
My Lords—
The Deputy Speaker () (Con)
I was so fascinated by the noble Baroness’s speech.
(LD)
I apologise to the Deputy Speaker for stepping up too soon.
I thank the Minister for describing the first on the menu of the
four statutory instruments we will be tasting today. I think that
he was yet the ascend the rickety stairs of ministerial
responsibility when the noble Lord, Lord Collins, the noble
Baroness, Lady Jones—when she was among us—and I were debating
the substantive nature of this Bill, so we welcome him to this
tiny corner of legislation. It is a shame that the noble Lord,
, has now left as I thought
he was overseeing the realisation of his creature; of course, it
was the noble Lord, , with whom we debated.
Actually, the Minister did not miss a lot of the substance of the
legislation because, as the noble Lord, Lord Collins, pointed
out, there was not a great deal of substance in the enabling
Bill. It is these statutory instruments that we will see today
that begin to put the soft tissue on to the skeleton of that
Bill.
There are four instruments, but we are looking in particular at
the one aimed at tying the unions up in procedural knots. It is
laying legal traps by which they can be caught out, with
potentially existential sanctions. None of us enjoys the effects
of public sector strikes—the Minister described those effects
today. Swathes of society are inconvenienced and, in the case of
the health service, it is much worse than an inconvenience. It
behoves any Government to create the conditions for ending
strikes as soon as possible, but this legislation does not create
those conditions. As we heard from the noble Lord, Lord Collins,
it creates heat and friction and makes settlement less likely.
For the benefit of this Minister, I will repeat what I said while
we were debating the Bill: disputes end only when the relevant
parties sit down, talk and negotiate. It is for Governments to
act to maximise the opportunity of those negotiations, rather
than turn one party on the other.
I will concentrate on the operational faults of this statutory
instrument, because therein lie the traps for unions. It really
begs the question of how reasonable the code’s “reasonable steps”
are? Unions must ensure that their members comply with the
employer’s work notices. A work notice, as we have heard, is
essentially a list of names associated to tasks for that
particular service. Its purpose is to seek to deliver an agreed
level of service—a handed-down level of service from government
to the employer to the union. To comply, the union must first
filter out the non-union members from that list and then take
“reasonable steps” to ensure that its members do not honour that
strike—a strike that the union itself has legitimately and
legally called. To do this, the unions are likely to have
extremely tight deadlines—deliberately unreasonable deadlines, I
suggest.
Employers have only to provide a work notice seven days before a
strike commences. That notice—the list—can be further amended,
leaving only three days for the union to contact its members.
That is not three working days, just three days, so it could
include Saturday and Sunday. We have seen the pro forma; this
communication must encourage them to pass through the union’s
picket lines and go to work. I remind your Lordships, including
those of us who were at the debate, that picket lines and
picketing were never mentioned in the original discussion.
To go back to the procedural difficulties, some disputes are
small and involve few union members. But the nature of the
industries covered by the Act means that disputes are likely to
be countrywide and involve tens of thousands of employees, maybe
more, so I ask the Minister: is it a reasonable step to ask a
union to track down and contact 20,000 people in three days,
perhaps over a weekend? How does he expect that contact to be
made? Will it be by email? He may be surprised to know that not
everybody has email, and further surprised to find out that not
everybody hands over their email address to their union. Will it
be put on a postcard? I suggest that the postal service may not
get it there in time.
There are serious impediments to the taking of these reasonable
steps—or possibly unreasonable steps—but let us say that the
union succeeds in crossing these hurdles and navigating its way
through the minefield set out in this statutory instrument. Can
the Minister confirm that the union is therefore indemnified from
prosecution if some or all of its members still choose to ignore
its advice and honour the strike? What is the legal position of
the union? The point raised by the noble Lord, Lord Collins,
about how we prove that the steps were reasonable still remains
but, in negotiating those reasonable steps, can the Minister
confirm that the union is then indemnified?
One would expect the TUC to be critical of this legislation, as
it is, but what about ACAS, the Advisory, Conciliation and
Arbitration Service, which is the expert at putting people around
a table and trying to solve these problems? It too expressed
reservations and asked why—I have relayed this to the Minister—if
the reasonable steps for unions are set out in detail, similar
steps are not set out for employers. Why are similar steps not
also set out for the Secretary of State in his or her dealings on
these issues? For example, what is to stop the employers
overstating the number of persons reasonably necessary to provide
the minimum service level mandated by the Secretary of State?
Those are not my questions but ACAS’s. At the moment, as far as I
can see, there is nothing to stop them. How would the union
challenge that, given the time available and the current state of
the code?
4.45pm
There are further practical impediments and deep flaws in this
legislation, which we debated ad infinitum when the Bill was
before your Lordships’ House. We sent it back to the other place
with our comments several times, and I am afraid that we were
unsuccessful in substantially changing it. It comes down to one
central illiberalism. During the debate in the Commons, as we
have heard, the Minister repeatedly denied from the Dispatch Box
that any worker would get sacked for going on strike. Here, the
noble Lord, , was more nuanced and said
that their protections would be removed. Can the Minister front
up and explain which statement is true? Will no employees be
sacked or, as the noble Lord, , said, will they lose their
protections and therefore be likely to be sacked?
If the noble Lord, Lord Collins, decides to move his regret
amendment, we will take the TUC’s advice and support His
Majesty’s loyal Opposition.
(Con)
My Lords, I completely understand that the Benches opposite did
not much like this legislation when it went through your
Lordships’ House, as we have heard today, but it is the law of
the land and has been passed by both Houses of Parliament. It
seems churlish to hold out against a document that is only trying
to help unions comply with its provisions.
The noble Baroness, Lady Bennett of Manor Castle, and the noble
Lord, , have listed a
number of reasons for the code of practice to be rejected or
regretted, as the case may be. I suggest that these reasons do
not stack up. I refer to the reasons as specified in their
amendments, as opposed to the broader political speeches that we
have heard.
The amendment from the noble Lord, Lord Collins, says that the
code of practice
“imposes significant new duties on trade unions”.
It does not. Paragraph 7 says:
“This Code imposes no legal obligations”.
It is just guidance. It therefore does not go beyond the scope of
the 2023 Act, as the noble Lord’s amendment alleges. Put simply,
his amendment is inaccurate. It acknowledges that the intention
of the guidance is to “provide … clarification to unions”, but
then complains that there are “significant areas of uncertainty”.
Guidance, by its nature, will never be exhaustive. He seems to be
calling for absolutely certain rules and not guidance, but this
is guidance. Much will depend at the end of the day on the
circumstances, and the courts—not the Government—will determine
whether a union has taken appropriate legal steps to stay within
the law.
The noble Baroness, Lady Bennett, did not go through her list of
complaints when she spoke to her amendment, but I believe it is
similarly misplaced. Her amendment says that the guidance can
lead to fines on trade unions or make them into “enforcement
agents”. She also complains that the draft guidance reduces
workers’ rights. The guidance simply cannot do these things—it is
just guidance.
The complaints of the noble Baroness might be more accurately
targeted at the minimum service levels legislation itself, as we
discussed earlier. That is now the law of the land. It is not the
time to redebate those issues, which took up so much of your
Lordships’ time in the last Session.
Lastly, the noble Baroness’s amendment says that the guidance
somehow “breaches international labour commitments”, which,
again, as guidance, it cannot do. Our obligations under the ILO
conventions do not prohibit us from setting minimum service
levels and certainly do not prohibit us from issuing guidance. I
hope—though without much hope at all—that neither of the noble
Lords will be pressing their amendments, as they really do not
make sense.
(CB)
My Lords, good grief, how did it come to this? I come at this at
a slightly different angle as a businessperson, and I know that
the Minister has much business experience. However, in business,
a great deal of time and study goes into how to motivate people
to work productively. I find it difficult—and I wonder if I could
ask the Minister whether he shares my view—that passing a law
that in effect forces people to work is hardly the way to go
about things, and is, in fact, a sign of failure. It is certainly
a sign of regret.
Baroness O'Grady of Upper Holloway (Lab)
My Lords, I rise to support the amendment standing in the name of
my noble friend Lord Collins, and to join him in reminding the
House that Labour will repeal this toxic legislation that would
turn the clock back on mature industrial relations and workplace
justice in this country.
First, I relay my thanks to the Minister, the noble Lord, , for taking the time to meet
with me yesterday. Our discussion touched on the P&O Ferries
scandal. I confirmed that, after those unlawful mass sackings, no
one was prosecuted and there have been no government sanctions
against either the firm or the owner. Compare and contrast that
with the proposals that we have before us today. This House
rightly raised the alarm about the risks of a skeleton Bill
railroaded through without proper scrutiny or parliamentary
accountability and without proper regard for our international
obligations.
Sadly, this legislation was never about good policy-making;
rather, it is about an unpopular Government trying to shift the
blame for their own failings on to decent public servants and
punishing trade unions which exist to defend them. Ministers say
they are standing up for public service users, but those claims
ring hollow. During the recent wave of strike action, polls
showed public sympathy with the strikers and exasperation with
Ministers’ high-handed, slow and chaotic approach to resolving
these disputes. Now, the OBR is forecasting an unprecedented
two-decade squeeze on real pay by 2028, and the Autumn Statement
heralds another round of deep austerity cuts for many public
services. That is why the Government are railroading through this
bad legislation. They have no intention of addressing the causes
of discontent; the objective is to crush it.
The code of practice is just the latest manifestation of contempt
for the rights and freedoms of ordinary working people. The code
sets out so-called “reasonable steps” that unions must take to
comply. However, there is nothing reasonable about the code’s
ridiculous requirements and deadlines for identification, state
interference in what an independent union must communicate with
its own members, new demands on picket supervisors when the
strikes Act did not even mention picketing or imposing draconian
sanctions on staff and unions. Rather, the code enables
employers, no doubt under pressure from Ministers, to disregard
democratic strike ballot, drag unions into court, attack union
funds, strip away automatic protection against unfair dismissal
and ban strikes by the back door.
On the day that the former Prime Minister, , professes gratitude to
healthcare workers and other public servants for protecting
people through the pandemic, this is their reward. In drawing up
this code, Ministers ignored the advice of Select Committees of
this House, trade unions who opposed the strikes Act, employers
who never wanted it, the RPC, which red-rated it, the UN’s labour
arm—the ILO—and even the UK’s widely respected industrial
relations body, ACAS.
I have two questions for the Minister. First, the Government fund
ACAS with taxpayers’ hard-earned cash to promote good industrial
relations and provide real-world expertise. However, ACAS’s long
list of sensible proposals for substantive amendments to this
code were rejected. Can the Minister tell us why? In what area of
good industrial relations practice have this Government proved to
be more expert than ACAS?
Secondly, the code spells out that an individual worker who
disobeys a work notice will lose automatic protection against
unfair dismissal and, if unions are deemed to have failed to have
taken the so-called reasonable steps, all striking workers lose
that automatic protection. However, the code says absolutely
nothing about what positive rights NHS staff, rail staff and
other dedicated key workers would then have in those
circumstances. This is quite an oversight. If, as a result of the
legislation, workers individually or en masse are sacked,
precisely what would their rights be and why does the code fail
to set this out?
(Lab)
My Lords, I declare my interests as in the register and that I am
a member of the Delegated Powers and Regulatory Reform
Committee.
Of the many points that I would like to make, I will restrict
myself to four. First, having spent 46 years of professional
practice largely involved in the legal consequences of industrial
relations disputes, I find it offensive that the Act and the code
of practice compel trade unions to serve the interests of
employers in undermining their right, guaranteed by all relevant
international law and hence diminishing the only bargaining power
our 34 million workforce have, to enhance the terms and
conditions on which they sell their labour.
Secondly, in November 2021 the Delegated Powers and Regulatory
Reform Committee published Democracy Denied? and the Secondary
Legislation Scrutiny Committee published Government by Diktat.
Your Lordships will recall the two principles underlying those
reports. First, primary legislation should conform to the
principles of parliamentary sovereignty, the rule of law and the
accountability of the Executive to Parliament. Secondly, the
threshold between primary and delegated legislation should be
founded on the principle that the principal aspects of policy
should be in the Bill and only detailed implementation should be
left to secondary legislation. These principles were debated in
this House on 6 January 2022 and 12 January 2023. The House
clearly and strongly endorsed them. I understood that the then
Leader of the House did not dissent from them. Yet this
legislation failed both principles.
In its consideration of the Bill, the Delegated Powers Committee,
in its 27th report, criticised the Bill’s granting of a Henry
VIII power to the Secretary of State to set minimum service
levels by regulations. We said:
“This is a Bill that deals with minimum service levels during
strikes. Yet there is nothing in the Bill saying what those
minimum service levels are. We shall only know when Ministers
make regulations after the Bill is enacted. This is small comfort
to Parliament, which is considering the matter right now”.
5.00pm
How right we were. Now, 10 months after the introduction of the
Bill and four months after it became law, we find out, too late
to debate or amend them, what the minimum service levels are to
be. We now discover that the Act will remove many workers’ right
to strike altogether. That means that three-quarters of the
Border Force, 100% of ambulance drivers and call handlers, and
signallers on priority routes are barred from striking between
six in the morning and 10 at night. If the House had known those
levels when we debated the Bill, amendments could have been
debated, and some clauses might not have stood part. This
irregular mode of legislating has cheated the House of those
opportunities. I find that unacceptable.
My third point emphasises the second. The Act is being used as a
device to amend the law on picketing, not by amending the
statutory provisions that regulate picketing—Sections 220 and
220A of the 1992 Act—but by imposing on trade unions the duty to
take “reasonable steps” to ensure that all members of a union who
are identified in the work notice comply with the notice. This
sidesteps the need for need for primary legislation; what the
Delegated Powers Committee calls “disguised legislation” is
deployed. The Code of Practice requires that picket supervisors
must be instructed by the union
“to use reasonable endeavours to ensure that picketers avoid, so
far as reasonably practicable, trying to persuade members who are
identified on the work notice not to cross the picket line”.
In consequence, the law on picketing is changed. A failure, even
a negligent failure, to so instruct even one picket
supervisor—for example, at any one of the hundreds of picket
lines in the recent RMT dispute—to use such “reasonable
endeavours”, which is a phrase that is undefined in the Act, may
expose the union to injunctions and damages claims in respect of
the whole strike, and all strikers may lose automatic unfair
dismissal protection. The omission of this picketing restriction
from the Bill, to prevent parliamentary scrutiny and amendment,
will be viewed by some as legislation by deception.
My fourth point is to draw the attention of the House to the fact
that this Bill contravenes the rule of law. The right to strike
is protected by Convention 87 of the International Labour
Organization, ratified by the UK as long ago as 1948. The right
to strike is not unlimited and, as has been said, the ILO has
made it clear that minimum service levels are permissible in
essential services, but subject only to certain conditions. I
shall mention three.
First, the maintenance of minimum service levels in strikes is
permissible only in services that are “essential”. Railways are
not so considered by the ILO.
Secondly, the ILO requires dialogue between trade unions and
employers to set the level of the minimum service. The Act,
however, excludes dialogue between those parties in setting the
level. The Minister alone does that.
Thirdly, once the level is set, the ILO requires the employer and
the union to negotiate an agreement about how the service level
will be fulfilled in the particular firm or service. In the event
of a failure to agree, there must be an established independent
adjudication process by the courts or agreed independent
arbitrators. The Act fails in that respect as well.
Given that so many workers will lose the right to strike
altogether, there is a fourth point to make. Where workers are
barred legitimately from exercising the right to strike—for
example, in the military—the ILO holds that, where collective
bargaining fails to reach agreement, there must be access to
speedy, binding, impartial and independent arbitration. The
proposed non-binding conciliation that the Government have
mentioned does not meet that threshold. As none of those
conditions are met by the Act, there is a clear breach of ILO
Convention 87. That is not the end of it, because Articles 387(2)
and 399(5) of the trade and co-operation agreement require the UK
not to weaken or reduce ILO fundamental standards below the
levels in place at the end of the transition period.
I mention in passing that Article 6.4 of the European Social
Charter, Article 8.1(d) of the International Covenant on
Economic, Social and Cultural Rights, and Article 11 of the
European Convention on Human Rights all protect the right to
strike and are guided by the ILO jurisprudence on it, all of
which were ratified by the UK.
For those reasons, among many others that my noble friends have
and will articulate, I shall vote for the fatal amendment and, in
case that fails, the regret amendment.
(Lab)
My Lords, it is a pleasure to follow my noble friend . I will ask the Minister to
clarify a few things.
My noble friend already quoted some of paragraph 33 of the Code
of Practice, which requires the picket supervisors or other trade
union officials
“to use reasonable endeavours to ensure that picketers avoid …
trying to persuade members who are identified on the work notice
not to cross the picket line”.
However, the next paragraph states:
“Unions are not required to notify the picket supervisor of the
names of union members identified in the work notice”.
So how exactly would they know who to stop? Will they have to
wear strange hats, ties or jackets or some other way of
identifying themselves? Those two paragraphs contradict each
other.
That is not the only contradiction in the statutory instruments.
Workers are being subjected to laws that do not apply to the
withdrawal of capital, so the Government are not being
even-handed at all. Companies can close facilities and sack
workers without notice and without any vote by any stakeholder.
Last year, P&O Ferries unlawfully sacked 800 people. The then
Prime Minister openly said that that was unlawful. The chief
executive of P&O Ferries came to a parliamentary committee
and said that they knowingly broke the law, but no action
whatever was taken. The Government are not even specifying the
minimum levels of service for any government departments,
monopoly service providers or companies. There are no minimum
levels of service even for Ministers to answer Questions.
Why are the Government so anti-worker and one-sided? I am
reminded of a great quote: “When tyranny becomes law, resistance
becomes a duty”. I too shall vote for the fatal amendment and, if
that fails, the regret amendment.
(CB)
Notices are often fraught with peril, so I want to know from the
Minister what the employer is required to do when giving a
notice. What is specified as to his means of communication? Is
the means of communication employed by the employer to be
communicated to the trade union, so that the trade union has some
idea of what the employer thought was a means of bringing it to
the attention of the employee? If this is to work, there must be
a reasonable degree of co-operation.
(Con)
My Lords, I greatly thank all noble Lords who participated in
this debate. I hope to clarify some key points, which are well
labelled on the Government’s website and in the code.
I begin by thanking my noble friend Lady Noakes for her comments.
This is a code, not a law. The whole point about this code is to
enable unions to know how they can safely operate once they have
taken reasonable steps to ensure that minimum service levels have
been applied. The noble Lord, , mentioned that I came from
a business background. He is correct and, from my point of view,
this will provide welcome clarity to enable us to operate
effectively. It does not impose anything or any type of activity:
it simply makes recommendations. If you look at the concepts such
as the template, that is the recommended template. It is not
necessarily the template by which unions will have to operate. I
would have thought that it would be very helpful for unions to
have a template construction in that way to enable them to feel
safe when they are communicating with their members.
I wish to raise something that I consider most valuable when
debating this point and this code. Minimum service levels, as
operated by the Act and structured by a useful guide such as this
code, really—in my view and in the view of the Government—should
be the last resort. The noble and learned Lord, Lord Thomas, made
apparent the crucial point that it is through collaboration with
employers, businesses and unions that we will have strong
relations. The noble Lord, , also made that point. The
timelines imposed by the Act and referred to in the code are
quite short, but are designed to fit within the strike
legislation, enabling a 14-day announcement of a strike, a
seven-day turnaround for the work notices, and then further days
to refine that.
The theory is that the employer and the unions will have done a
great deal of work to prepare for the scenario so that effective
work notices can be issued. It is not unreasonable for an
employer and a union to be expected to collaborate very closely
to ensure that this process can be as smooth as possible. At no
point does this code, in any way, derogate the right to strike.
It gives vital clarity on the relationship between the union and
the employer. It actually goes further than that: it protects the
rights of unions and the rights of the union members, so that
they know where they stand.
A number of noble Lords raised points about reasonable steps, and
they are just that. This has been quite well clarified by
previous discussions in the sense that, so long as the union can
prove that it has taken reasonable steps to ensure that the work
notices are properly served and communication has taken place and
that workers are not prevented from attending a work site, it can
consider itself relatively safe when it comes to the process that
may be placed on it in the courts by an employer. That is the
whole point of the code: to make the unions feel safer and to
ensure that an act around a strike can be properly
orchestrated.
In conclusion, I ask for the support of this House. What we are
discussing here is a code that will enable a great degree of
welcome clarity and was called for by all sides on this debate.
There have been a number of consultations to which the Government
have responded, making changes to the code to bring to bear some
of the very sensible points that were raised to ensure that it is
reasonable, practical, fair and clear. It balances the unions’
and individuals’ rights to withhold their labour, while crucially
providing minimum service levels so that the public can go about
their business and the economy can sustain itself.
(GP)
My Lords, we have had a very strong debate. I do not think the
Minister answered my direct question about when, if your
Lordships’ House allows this through, it will come into
operation. Perhaps he could answer that now.
(Con)
I said at the beginning of my opening remarks that it will come
into effect once it has been laid, so in the next three days.
(GP)
I thank the Minister for that information: it is useful for the
world to know that we will be facing this situation in three
days’ time.
We have had a useful debate: this code of practice and all these
statutory instruments that we are debating today have been very
thoroughly critiqued. The noble Lord, , made a powerful statement
about the way in which the UK is, yet again, placing itself
beyond the international pale in terms of norms and legal
standards.
5.15pm
I thought the comment from the noble Lord, , about employers being held to
minimum legal standards was very powerful—the water companies
come to mind. I thank the noble and learned Lord, Lord Thoms of
Cwmgiedd, for helping to highlight the real, considerable
uncertainties here. I also thank the noble Lord, , for making an important
point about the practicality of this. The noble Baroness, Lady
O’Grady, pointed out the concerns that the Advisory, Conciliation
and Arbitration Service has about this code of practice. ACAS has
indeed suggested that the code is likely to widen the scope for
disagreement and dispute, introducing additional flashpoints.
Maybe that was the Government’s point; the noble Lord, , was clearly concerned about
it. I have to commend the noble Lord, , on his powerful evisceration.
One phrase that stuck in mind was that the central illiberal
element of this code of practice is that people can be sacked.
Saying this is a “central illiberalism” rightly suggests that
there are other illiberalisms in this code of practice.
However—and I feel that I need to explain this to the many people
watching this outside your Lordships’ House who are not familiar
with the practices of the House—for a vote to be called, it needs
two Tellers and, half way through the vote, people in the Chamber
to shout for the vote to continue. We have heard clearly
indicated that the Labour Front Bench does not support the
amendment that would throw out this code of practice. The Liberal
Democrat Front Bench has not supported this. I do not have the
indications that would allow me to put this amendment to a vote
at this time. Your Lordships’ House might like to ponder what
judgments will be made about the position that puts us in, as a
representative House, but I find myself with no option but to beg
leave to withdraw the amendment.
Baroness Bennett of Manor Castle’s amendment to the Motion
withdrawn.
Amendment to the Motion
Moved by
As an amendment to the motion in the name of , at end to insert
“but that this House regrets that the draft Code of Practice
imposes significant new duties on trade unions, beyond the scope
of the Strikes (Minimum Service Levels) Act 2023; could
exacerbate conflict in the workplace; and despite its intention
to provide additional clarification to unions, still contains
significant areas of uncertainty.”
(Lab)
That is the first time I have heard this House described as
representative. I am not going to prolong the discussion. The
noble Lord, , is absolutely right in that
the essence of this is: what in practice is going to work? That
is why most employers object to this code. It is a statutory
code, unlike the one on the employer, which can be used against
trade unions when a rogue employer might see that it is of
benefit to take a legal case. Therefore, I beg to move my
amendment and test the opinion of the House.
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's amendment to the
Motion agreed.
Held on 6 December 2023 at
5.18pm](/Lords/2023-12-06/division/42A88C49-673A-4BFE-807F-A8506EC12101/LordsChamber?outputType=Names)
5.31pm
Motion, as amended, agreed.
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