Motion A Moved by Lord Callanan That this House do not insist on
its Amendment 2D to which the Commons have disagreed for their
Reason 2E. 2E: Because the Bill already contains adequate provision
for consultation and parliamentary control of regulations made
under it. The Parliamentary Under-Secretary of State, Department
for Energy Security and Net Zero (Lord Callanan) (Con) My Lords,
the House will be pleased to know that I can again be brief, as
we...Request free trial
Motion A
Moved by
That this House do not insist on its Amendment 2D to which the
Commons have disagreed for their Reason 2E.
2E: Because the Bill already contains adequate provision for
consultation and parliamentary control of regulations made under
it.
The Parliamentary Under-Secretary of State, Department for Energy
Security and Net Zero () (Con)
My Lords, the House will be pleased to know that I can again be
brief, as we have debated this Bill and the remaining issue at
length on a number of occasions. The other place has again
considered the Bill, as requested by this House. The House will
be unsurprised to hear that it has come to the same conclusion as
previously, again with a significant majority. This is now the
third time that the other place has made its will clear, and I
therefore hope that noble Lords will take that into account
today.
Noble Lords last sent the Bill back to the other place with the
justification that the International Labour Organization had
issued new information. As my colleague, the Minister for
Enterprise, Markets and Small Business, noted in the debate there
earlier this week, this is ground which has already been well
covered by both Houses. I therefore hope that knowing that the
other place has considered the issue again, and voted with that
in mind, will give noble Lords the confidence that this issue has
now been extensively scrutinised.
The Minister in the other place also explained that the
Government will provide clarity in respect of the reasonable
steps which a union must take to be compliant with the
legislation. I know that this has been a concern for the noble
Lord, Lord Collins, in our previous debates. I am therefore
pleased to confirm that the Government will bring forward a
statutory code of practice on the reasonable steps which a union
must take. We will do that using existing powers under Section
203 of the Trade Union and Labour Relations (Consolidation) Act
1992. That code will be subject to statutory consultation,
including with ACAS, and will of course need to be approved by
both Houses of Parliament. This consultation will provide an
opportunity for trade unions, employers and any other interested
parties to contribute to providing practical guidance on the
steps that a union must take to make the code as practicable,
durable and effective as possible.
I hope these steps go some way to reassuring the House that the
Government’s plans for minimum service levels are within our
international obligations and that we will provide clarity where
that is required. I hope therefore that this House will now feel
able to allow this legislation to pass to Royal Assent. I beg to
move.
(Lab)
My Lords, in form, this skeleton legislation with its Henry VIII
powers defies every legislative principle, as the Delegated
Powers and Regulatory Reform Committee, the Secondary Legislation
Scrutiny Committee and the Select Committee on the Constitution
have reported. As to content, the less said the better. Although
the Government’s impact assessment was held by the Regulatory
Policy Committee to be not fit for purpose, it contains the
revealing analysis that, far from obviating the disruption that
strikes inevitably cause, the Bill
“could mean a general increase in tension between unions and
employers. This may result in more adverse impacts in the long
term, such as an increased frequency of strikes for each
dispute”.
No doubt that is part of the reason why employers, as well as
trade unions, have opposed the Bill.
This House tried to redeem the Bill with amendments to protect
workers from unfair dismissal and unions from damages and
injunctions, as required by international law, but the
Government’s majority in the other place rejected them. This
House, in its latest modest amendment, sought to mitigate the
Bill’s excesses by requiring consultation before regulations were
made, but even this was rejected by the other place on
Monday.
The fact is that the Bill abridges the right to strike, a right
established by many international treaties to which the UK
adheres. A letter written by the general secretary of the
European Trade Union Confederationto the Secretary of State the
day before yesterday sums it up. She said:
“It is clear that the Bill introduces provisions which weaken or
reduce existing law in relation to the protection of the
fundamental right to strike and which do not respect or implement
ILO Convention 87”.
The Joint Committee on Human Rights said the same thing. The
letter points out the specific respects in which the Bill fails
to meet ILO conditions for permissible MSL legislation. Among its
list of non-compliances, the letter points to the absence in the
Bill of: any requirement for trade union and employer dialogue in
the setting of MSLs; any obligation on the employer to negotiate
an agreement with the trade union about service levels; and any
independent adjudication mechanism in the event of a failure to
agree.
Your Lordships’ amendment would have gone a long way to rectify
these non-compliances without such remedial action. As ETUC
points out, the UK will not only be in breach of ILO Convention
87 and paragraph 4 of Article 6 of the European Social Charter,
but it will also violate Articles 387 and 399 of the trade and
co-operation agreement. However, the Government have a problem
with consultation with the social partners. Just a week ago, the
High Court held that the purpose of the statutory obligation to
consult before making regulations under the Employment Agencies
Act was that:
“Parliament can then proceed on the basis that the case for the
measure has been tested with interested parties in the sector and
that their views and interests have been taken into consideration
in fashioning the draft regulations which are laid before
it”.
The Government’s failure to consult was, the court held,
“so unfair as to be unlawful and, indeed, irrational”.
Less than a month ago, the relevant ILO committee told
“the Government to provide information to and facilitate the
dialogue between and with the social partners with a view to …
improve consultation of the social partners on legislation of
relevance to them”.
Of course I accept that the undertaking by the noble Lord to
introduce a code of practice imports a duty to consult, but such
consultation is apparently limited solely to the issue of
reasonable steps. It does not require the social dialogue that
compliance with international law does. In truth, as was said by
in the other place,
“no number of amendments could ever salvage this Bill”.—[Official
Report, Commons, 17/7/23; col. 721.]
That is why the Labour Party is committed to repealing it.
(Lab)
My Lords, I thank the Minister for his comments. I appreciate his
ability to be brief, but sadly I do not think I will be able to
be as brief as him on this occasion because there are, as my
noble friend has just raised, a number of
issues outstanding.
This House acknowledged, I think from all sides, that this is a
skeletal Bill. It is an example of legislating and then
determining policy and procedure. It is really the wrong way
around. There is not a proper process of consultation, as my
noble friend has just outlined. I repeat the intention of a
future Labour Government to repeal the Act because it does not
have the support of workers’ representatives or employers. It is
impracticable and will simply result in not achieving the
objectives of the Bill the Government set out, while worsening
the situation in industrial relations. Even the Government’s own
impact assessments have said it could possibly increase
strikes.
The position on the Bill has been one, in this House, of
principled objections to the methodology used and the practical
application. I stress the importance, when Parliament is starved
of the ability to properly scrutinise legislation that impacts on
fundamental human rights, as in this case, of the fact that we
have a duty in this House to keep reminding Parliament of that
situation. My noble friend highlighted that the International
Labour Organization’s Conference Committee on the Application of
Standards called on the Government to ensure that existing and
prospective legislation conforms to the article he mentioned. The
Minister has said in the past, “That’s all right because we will
ensure that this legislation will conform”. I am not sure, and I
do not think employers or union representatives have any
confidence, that that will be the case.
What this House asked the Commons to consider was precisely what
the ILO is asking the Government to do anyway: to undertake
genuine consultation before implementing minimum service
regulations. That means that, when regulations are published,
they include an impact assessment and there should be genuine
consultation, including on the protection for workers named in
work notices and the reasonable steps that trade unions need to
take to ensure compliance. The consultation on the selected
sectors has taken place, which we have not seen the results of.
We will not see those results before the Bill is enacted. Again,
that is outrageous in my opinion.
On the reasonable steps the noble Lord has referred to, we have,
rather late in the day, heard a Minister saying that a new code
of practice will be brought forward. This is certainly an
improvement on the Government’s previous position that it was for
courts to decide what reasonable steps are—so unions would not
even know until challenged in the courts what they may be
required to do. However, we are told that the code will be
subject, using existing powers, to statutory consultation,
including consultation with ACAS, and the approval of Parliament.
The Minister in the other place said:
“The consultation will give trade unions, employers and any other
interested parties an opportunity to contribute to practical
guidance on the steps that a union must take”.—[Official Report,
Commons, 17/7/23; col. 713.]
What is the timetable for this? I take that Minister’s words as
not simply meaning the obligation to consult ACAS without a
timeframe. I hope that we will not see a rushed consultation over
the August holiday period. If that is the plan, it will make a
mockery of that process and people will fully understand the true
intent of this Government.
I seek assurance from the Government that there will be a proper
timetable. I remind the noble Lord the Minister that, on 23
January the Government announced strong action against
unscrupulous employers which use the controversial practice of
fire and rehire through a planned statutory code of practice.
That announcement followed ACAS guidance to employers a year
before. The consultation announced on 23 January ran for a period
of 12 weeks, with views sought from not only interested groups
but from the public. Parliament has the right to be satisfied
that union workers and the public will be given the same
consultation rights and period for the statutory code under the
Bill as given for the fire and rehire one. We are entitled to
know today that this is what the Government will do.
As my noble friend highlighted, last week the High Court said, in
relation to the consultation process for the regulations that
allowed agency workers to break strikes, that
“this is not a case in which the evidence is that the proposal
had obvious and undisputed merit based on cogent evidence, and
enjoyed strong support from representative bodies in the
sector”.
It could have been talking about the Bill—and no doubt in time it
will be. I hope the Minister fully understands the position of
these Benches. I hope he also fully understands that the concern
I have expressed, and my noble friends have expressed, is not
just restricted to this side. All sides of the House fully
understand the importance of protecting fundamental freedoms and
Parliament having the proper opportunity to scrutinise
legislation, which we have not had in the case of the Bill. I
will not repeat all the objections made by the committees my
noble friend referred to; they are on the record. But I hope the
Minister, in his response, will be able to give us a full
explanation of what he intends to do in terms of the consultation
on the code of practice.
12.30pm
(LD)
My Lords, it is a great pleasure to follow the noble Lords,
and Lord Collins, and I
completely associate myself with their critical process and legal
analysis of this Bill. From the outset, this was a political Bill
and I make no apology at the end of this process for making a
political comment.
It may have escaped your Lordships’ notice, but there are three
by-elections going on today across different parts of the
country. In knocking on those doors, the number one or number two
concern of the people in those houses in those communities is the
delivery of the health service in this country. I refer to this
Bill and the challenge that this Government have in dealing with
the industrial disputes going on within the health service. It is
quite clear that this Bill will do nothing to bring those
disputes to an end and, if it is deployed, it would exacerbate
them. Those people answering their doors and talking to
politicians as they are being canvassed would love to have a
minimum service level every day of the week. The Government need
to solve this industrial issue as well as the service delivery
within the health service, and this Bill when it becomes an Act
will do nothing towards doing that.
(Con)
My Lords, I thank all three noble Lords who have contributed to
today’s debate. The Government always listen carefully to the
views of this House.
In response to the noble Lord, , I have seen the letter from
the European TUC, which I read with interest. I am sure the noble
Lord will accept that it is hardly an impartial referee on these
matters. It is also fair to say that it had nothing new to say.
We have been over all this ground many times before and have
provided explanations of the type it has sought.
It is also fair to point out that, in our view, this legislation
is compatible with the ILO convention, and I am sure the noble
Lord will accept that there are many other ILO states that
already have minimum service levels as part of their domestic
legislation. We will, of course, ensure that any secondary
legislation is also in compliance with all our international
obligations.
I can also confirm in response to the noble Lord, Lord Collins,
that the Government will launch a consultation on the draft code
this summer, following consultation with ACAS. The code will be
put to both Houses for approval in line with the procedure set
out in Section 204 of the Trade Union and Labour Relations
(Consolidation) Act, and we will consult for an appropriate
period.
(Lab)
Can the noble Lord be more explicit? We are just about to go into
the Summer Recess. August is a month when many people take
holidays. I hope that he will be able to confirm, as with the
previous statutory codes, that the public consultation will start
in September and run for 12 weeks at least.
(Con)
I am afraid I cannot confirm that for the noble Lord. No final
decisions have been taken yet, but it is our intention to get on
with this as quickly as possible, so we will consult over the
summer. We will leave an adequate period for responses to that
consultation and then, as I said, the code will have to be
approved by both Houses.
I understand the Opposition’s principled objection to this Bill.
Taking on board the point made by the noble Lord, , I suppose all legislation is
political. We are a political House at the end of the day. We are
all party politicians, so it should not be a great surprise to
find that legislation is also political.
We have thoroughly debated this matter now on many different
occasions. The House has asked the Commons to think again on a
number of occasions; they have done so and have responded. I
appreciate that noble Lords opposite do not like the outcome, but
it is what it is. In our view, this is a vital piece of
legislation that will give the public confidence that, when
workers strike—which they are fully entitled to do—lives and
livelihoods are not put at undue risk.
I hope the House, despite the reservations of noble Lords
opposite, will now let this legislation pass to Royal Assent.
Motion A agreed.
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