Strikes (Minimum Service Levels) Bill - Committee (2nd Day) (Continued) – in the House of Lords at 4:45 pm on 23rd March 2023.
Moved by Lord Collins of Highbury
33: The Schedule, page 5, leave out lines 9 to 22Member’s explanatory statementThis amendment is to probe the level of protection of unions when involved in industrial action.
My Lords, I suppose I had better start by making clear that I am probing these relevant clauses because I do not think what is set out in the Bill is clear. I also think it is important that we set out where we are on statutory protection for unions. We are certainly probing what could be considered “reasonable”—a word that I find extremely difficult without any further description in the Bill.
Let us start with some fundamentals here. In Great Britain, individual workers who strike, unless otherwise protected, are in breach of their contractual obligations. In the absence of other legal protections, trade unions that organise strikes would almost certainly commit a tort, such as inducement of a breach of contract, and could be subject to damages and injunctions. Currently, unions are protected from liability, and have immunity in the acts that we often talk about, by Section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992, provided they comply with various legal requirements such as the rules on strike ballots. Those requirements have been quite onerous in many respects. Perhaps they had the opposite effect to what was intended, because I assure the Minister and other noble Lords that once a strike mandate has been achieved through all those ballots, people who make that decision are then absolutely committed to it, while perhaps there might have been a bit more leeway in the past.
The fact is that once that mandate has been achieved, the union is protected. Under this Bill, they could lose that protection despite going through every legal hurdle set out in the 1992 Act. It is unacceptable for unions to be faced with a position where they are obliged to ensure that members who vote for industrial action do not take part in that action. It is asking them to undermine their own democratically agreed activity. A union could face an injunction or be forced to pay damages if it is not deemed to have taken reasonable steps to ensure that all its members identified in the work notice do not take part in the strike action. The cap for damages was raised to £1 million last year, which could be crippling for any union deemed to have breached what is vague legislation. It could have a chilling effect on the willingness of trade union members to exercise their fundamental right to strike.
We are trying to probe—and I am sure other noble Lords will participate in this debate—exactly what constitutes a reasonable step, as unions have been left uncertain of their responsibilities. My noble friend Lord Hendy has probing amendments to try to clarify what should or should not be a “reasonable step” and how you can work out some sort of definition. I hate to use hyperbole, but it is an outrageous infringement of trade union freedoms to force union members to cross picket lines when strike action has been democratically endorsed by members.
It is also a significant departure from the industrial relations framework in the United Kingdom. I come back to my noble friend Lady O’Grady’s point: I have yet to hear about a single employer, particularly in the six sectors we talk about. In some of them, particularly the nuclear industry, there are already very strong voluntary agreements. We have heard the noble Lord talk about the ambulance service, but it is all those areas. The NHS Providers are extremely concerned about the impact this will have on the very thing that we are saying that this legislation is designed to achieve. It will impact on voluntary agreements. Employers say, “I want a volunteer. I don’t want to force someone to do something, because when I do that they’re not going to be doing the job we all hope they would.”
This legislation has the complete opposite effect from what the Minister is suggesting. When you look at the comments I have already made about the rail industry, it is clear that this is going to aggravate industrial relations and prolong disputes, not minimise them. I hope the Minister can give us a clear indication of what he thinks are reasonable steps for a union to take in these circumstances.
I should advise the Committee that if this amendment is agreed, I will not be able to call Amendments 34, 34A or 35 for reason of pre-emption.
My Lords, I shall speak to Amendments 33 and 34. I share my noble friend Lord Collins’s outrage at this proposal. It is one thing to set minimum service levels and another thing to specify requisition notices by way of a work notice, but to require trade unions to organise themselves so as to break their own strike is a step that has never before been taken in this country and, so far as I am aware, is not required in any other country in Europe.
I remind the Committee that the provision in the Bill that we are seeking to discuss says
“the strike is not protected as respects that person’s employer if … the union fails to take reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice.”
So the obligation on the union is to
“take reasonable steps to ensure” that all members comply with the notice. That is a very heavy obligation to put on unions. In principle it is objectionable, but the extent of it makes it even more so.
I cannot develop the objection on principle further, but there are some practical considerations here that perhaps the Minister can consider. We are envisaging a work notice given by the employer to the union, setting out names of a number of workers who are required to work and the work that they are required to do; we remind ourselves that, at the end of the Bill, it is said that that can be on a daily basis. If you have one employer and one strike affecting a small number of workers, that may be a relatively easy obligation to comply with.
However, I remind the Minister that the Bill applies to the education service. I have just looked up the Office for National Statistics site, which tells me that there are 32,226 schools in this country—although in fact I understand from the National Education Union that it balloted only some 24,000-odd of those. Think of that: even if we assume that only half the employers decide to supply a work notice, on a daily basis the unions are going to get 10,000 or 12,000 emails with a list of teachers who are required to be in. The union then has to set that list against its own membership database in order to determine which of them are members of the union, and then has to communicate with each one of them in order to demonstrate that they have taken “reasonable steps to ensure” that those members comply with the notice. This is just nonsense, is it not? It really must be.
Part of the problem is that the Bill does not define “reasonable steps”—that will be left to the courts to determine. I have done enough of these industrial action cases over the last 40 years to know that employers’ barristers—all friends of mine—are going to use every argument in the book to demonstrate that the union has not taken the “reasonable steps” that the employer says it should have. One of those, of course, will be to say that the union did not threaten to discipline any members who refused to comply with the notice or expel anybody, and to ask what it did do.
All of this is against the background of a union having committed itself, after a vote in favour by the members—a vote which meets all the thresholds—to advancing a strike. All the publicity that goes out from the union’s website and journal and in emails to members will say that it is calling a strike on, say, the 24th of the month, starting at midnight, and calling for members to join the strike, go on the picket line and participate—this is their fight and their struggle for better pay and conditions, or whatever it is. However, the union has to demonstrate that it identified those members appearing on a work notice in order to show that it took reasonable steps to ensure that those members complied. This is simply not realistic, and it is not acceptable.
Following on from the noble Lord, Lord Hendy—I apologise for butting in—it is not quite as simple as that. What happens if, of the employers list, 30% of them go off sick? Who is accountable for filling in the gap? Is it the union? Does it have to take “reasonable steps” to find substitutes? The Minister shakes his head to say that it does not—that is good. Perhaps when he replies he can explain what happens in the event of a significant number of those people going off sick.
I will not add any more, as I am sure there will be plenty from the Benches of His Majesty’s Opposition.
My Lords, I support these amendments and want to complement and supplement the contribution of my noble friend Lord Hendy. As he said, these amendments deal with the fundamental issue of protecting trade unions from being forced to act against their own interests during a legally authorised dispute.
Like my noble friend, I find one of the most appalling parts of this skeletal Bill the requirement for trade unions
“to take reasonable steps to ensure” members comply with a notice to strike-break. Ensuring compliance is the role of the trade unions, according to the Bill. What on earth does that mean in practice? There is nothing in the Bill to guide us here. How can unions be expected to police their own members who, after all, are simply ordinary workers who voluntarily joined the union? They pay their subscriptions and expect their union to support their democratic decisions, especially during disputes.
How is compliance normally ensured? How does the state ensure that people comply with its laws, for example? Again, as my noble friend Lord Hendy said, it is by threat of sanction or some kind of punishment. Is that what is meant here? Are trade unions supposed to threaten their own members with some kind of punishment if they do not cross their own picket lines? It is ridiculous. It is certainly not clear in the Bill whether that is or is not the case. But you can bet one thing: the bosses will see it that way.
What if the bosses or, ultimately, the courts decide that this punishment is not harsh enough? What if it is decided that the union did not take so-called “reasonable steps” or threaten punishments harsh enough to ensure that its members complied with the employer’s work notice? What then? Well, the whole strike loses legal protection, as does the union. What does that mean? The Minister in the other place was very clear in his letter to the Joint Committee on Human Rights when he said that all workers would
“lose their automatic protection from dismissal for industrial action”.
In short, they could face the sack. There is no dispute about what was said in the other place.
However, the Minister justified this by comparing it to “balloting requirements” for unions—if they are not satisfied, the whole strike is unprotected. But, with the greatest respect, balloting requirements are black and white and very clear: it is in law and practice whether a union has satisfied them, and, if a union messes up, as unfortunately unions sometimes accidentally do, it admits it and reballots. But no members are put at risk; they are not threatened with discipline or the sack.
But “reasonable steps”, open as it is to interpretation, is not at all black and white, and with nothing in the Bill spelling out what is meant by this, the unions are flying blindfold while their members are held hostage to fortune. For example, what if a worker refuses to go to work because other members of their family are on strike? If a worker goes on the sick—not “is on the sick”, Minister—how can the union be held responsible in such circumstances? Not only can all workers on strike be fired, but the union itself could be fined vast sums of money and sued for damages, and all for not being ruthless enough in ensuring its own members’ compliance with a work notice designed to undermine its own legally balloted strike action. With the greatest respect, this is unacceptable, and all of us must fiercely resist it. This restriction strikes at the core of trade union activity and, together with the lack of clarity in the Bill on what counts as “reasonable steps”, it is therefore a breach of Article 11 of the European Convention on Human Rights, as my noble friend Lord Collins mentioned. I urge all Members to support these amendments.
I have another basic question for the Minister: what exactly is meant by “reasonable steps” to ensure compliance? Is it a stern word on the picket line, or down the pub? Maybe it is naming and shaming members who are nervous about strike-breaking—or is it simply the union disciplining workers if they do not comply? What is a reasonable step? We need clarity, or we are flying blindfold.
My Lords, this group gives me the opportunity to speak to the noble Baroness, Lady Noakes. Earlier, she encouraged the Committee to be constructive when we debated whether an amendment was probing or constructive. Given the gestures from the Minister from a sedentary position, it is clear that, even if the Bill passes, there is room to specify these reasonable steps and new duties upon trade unions. That is my attempt to meet the noble Baroness half way and be constructive about a Bill that I think is hugely disproportionate.
With the greatest respect to my noble friend who just spoke, these amendments do not just expose a breach of Article 11, on freedom of association; they quite possibly expose a breach of Article 9, on freedom of conscience. I am afraid there are no right reverend Prelates here at the moment, but it is as if we were to say to the bishops, “We live in a modern, diverse democracy, even though we have an established Church, but it is now your obligation to actively encourage divorce and abortion.” Clearly, that would be ludicrous, and it is equally ludicrous to be saying to trade unions not only that, as indicated in Amendment 34, they should try to make their members aware of the legislation and of work notices, but that they should ensure compliance as well. The Government are making employers in relation to these public services the policeman for the Government, but it is a step too far to make unions the policeman for the Government as well—not least in the context of disputes which will continue to be lawful under this proposed legislation, but just some people will have to go to work.
Hence, I commend in particular Amendments 34, 34A and 35, which highlight that knowledge is one thing but ensuring compliance is another. They demonstrate at length that unions should not be disciplining their members for not going to work, and that picketing has to remain perfectly lawful, not least because most workers, we hope, or many workers, will still be entitled to go on strike, notwithstanding the minimum service levels and the specific work notices. The Bill needs to specify what is reasonable and what is required of trade unions.
Does the noble Baroness agree that “reasonable steps” is a formulation used in a number of legislative formats? It has not been defined further on those occasions when it has been used in order to provide the flexibility to allow for the situation to be judged on its individual circumstances and, indeed, to allow for technological developments. What would have been reasonable, for example, in communication with affected workers 10 years ago could be quite different now. If we take the example of the duty to prevent bribery, “reasonable steps” is not defined in law and that is a virtue of the law, because it allows the situation to be judged at the time. That is why the Bill takes this pragmatic approach.
I totally agree, by the way, with the noble Baroness that there are areas of our common law in particular, and some statutes, where the inclusion of the adjective “reasonable” by itself will do the trick. I disagree that it is appropriate here because we are asking unions to do something that is inherently counterintuitive to their raison d’etre, which is to organise workers, in extremis, to go on strike. If one is saying to the union, “You are now having to push against the grain of your whole existence, the existence of your organisation, and your freedom of conscience and your association, which you are entitled to under the convention and the ILO”, and if one is pushing them in the opposite direction, one has to be very specific and proportionate about the nature of that totally counterintuitive duty.
If I can elaborate even further, it is not necessarily the issue of being counterintuitive or not; if there is a voluntary agreement, both parties enter into that voluntary agreement with good faith. So if, as we have discussed many times before, safety is genuinely at risk and there are life and limb agreements, unions and employers work incredibly closely together to secure the consent of individual workers, and issue them with what we call exemptions to go across that picket line. That can all happen. But as soon as you introduce the law and remove that requirement for agreement, why is it our responsibility to make this work? It is not our responsibility; it is the employer’s responsibility. You cannot have it both ways. If we are going to have a voluntary agreement, we will do our best to honour and make that voluntary agreement work. If the state intervenes and dictates to workers under threat of dismissal, it simply will not work.
My Lords, I am grateful to those who have contributed to the debate.
It should go without saying that, to achieve a minimum service level, employers, employees and trade unions all have a part to play, and the Bill makes clear what those respective roles are. As many Members have quoted, unions are required to take “reasonable steps” to ensure that the union members named in the work notice comply with the notice. If they do not, they will lose protection from legal claims.
In response to the noble Lord, Lord Woodley, I say that there are a range of steps that trade unions could take, and what is considered reasonable can depend, as my noble friend Lady Noakes made clear, on each specific situation. First and foremost, a trade union should not call a union member identified in a work notice as required to work on a particular day out on strike that day. The trade union could also encourage those individual members to comply with the work notice and make it clear in its general communication with workers that, where members are named in a work notice and therefore required to work on a particular day, they should work on that particular strike day.
Before turning to the individual amendments, I will respond to the question from the noble Lord, Lord Fox, about what would happen if a number of the workforce are sick on the day of the strike. As I indicated to the noble Lord from a sedentary position, the responsibility of the unions is to take “reasonable steps”, as it says in the Bill. If union members named in a work notice are off sick, it is not the responsibility of the trade unions to find other members to take their place; it is the responsibility of employers to ensure that enough work notices are issued to fulfil that minimum service level.
Amendments 34 and 34A seek to diminish the responsibility of unions to take reasonable steps to ensure that their members who are named on a work notice actually attend work rather than participating in strike action. These amendments would remove any obligation on the trade unions to notify their members of the need to comply with a work notice and not to take part in the strike, which, in my view, would reduce the likelihood that a minimum service level will be maintained or achieved. Therefore, the Government are unable to accept them.
Amendment 33 goes further and seeks to ensure that unions have no responsibility whatever for ensuring that their members comply if they have been named on a work notice. It also ensures that there are no consequences for failing to meet that responsibility. I submit that that is an attempt to disrupt the balance between the ability to strike and the rights and freedoms of others, and therefore the Government cannot accept the amendment.
If a union member does not cross a picket line when identified on a work notice, this will of course negatively affect the employer’s ability to achieve the minimum service level at all. The picket line is usually a critical place for a union to exercise persuasion over its members, and we have seen some egregious examples of that. However, the Bill and the achievement of minimum service levels would be substantially undermined if the union’s obligations did not extend to picketing, and therefore we cannot accept Amendment 35.
The responsibility of the union to take reasonable steps is a continuing one, because the impact on the public is the same if a minimum service level is not achieved, whether or not that results from picketing activities. Therefore, the Government cannot accept these amendments, which would significantly reduce the responsibilities of trade unions. Our view, which is reflected in the legislation, is that they need to play their part in ensuring that essential services continue during strikes. As always, we encourage unions to act responsibly and to fulfil their statutory duty that will be established by the Bill if it becomes law. I therefore hope that the noble Lord, Lord Collins, will withdraw his amendment.
The simple fact is that the Minister tries to keep repeating a narrative that the Government are on the side of the public and, somehow, the Opposition are not. Actually, that is not the case, and, as I said before, the public will not be fooled.
I am glad that the noble Lord, Lord Markham is here, because we had a discussion about the six sectors. There was a manifesto commitment on transport, but then that disappeared, especially when an impact assessment said that the law would not work and would prolong disputes, with greater impact on the public, so it is not worth doing. Now, we have had discussion about six sectors, a number of which have very strong voluntary agreements that work. Employers have told us that where people volunteer to do something, against their conscience, which is what we are talking about, it will be more effective. In the health service, NHS Providers is telling us that that is what it wants to do: it wants to ensure that people volunteer and that there are proper cover arrangements. What we are moving to here is compulsion, penalties and dismissal. It will have the complete opposite effect to what the Minister has said.
The problem about “reasonable steps”, as the noble Baroness, Lady Noakes, has said, is that it is often up to courts to define and interpret. It is used in our common law. I have been distressed at times at how courts have deemed something to be reasonable, especially in the context of trade unions. The Minister has given us an example, whereby the reasonable step is for the union to communicate—simply to communicate. If the union provides notices that there will be minimum service levels, that reasonable step should include a range of communications. The Minister therefore excludes the idea that there is a requirement to insist, to discipline or to take other measures that may be deemed reasonable.
I come back to a fundamental point. There is another issue here: unions are able to organise strikes, but not because they have constitutional right to do so in this country—they do not, sadly. That is the difference from European countries, where they do have that constitutional right and so the question of minimum service levels is something that is an exception to the constitutional right. The Minister talked about incentives in an earlier debate. Often, it is the statute that says that you must incentivise people to work in those circumstances and not to exercise their constitutional right to strike. We do not have that here.
It is extremely worrying that a properly constituted, legal strike could end up being deemed illegal because a court decides that a union did not take “reasonable steps” for a small minority of its members—well, possibly a small minority, but who knows? The problem is that we do not know what minimum service levels are in different circumstances; we do not know whether it is 20%, 30%, 40% or even—in the case of some of the emergencies that we have been talking about—100%.
This comes back to a fundamental constitutional position. This is a skeleton Bill that is asking Parliament to give Ministers powers that will impact hugely on rights that have been fought for over the last 120 years. I am certainly not happy with the Minister’s response. I have no doubt that he will continue with his narrative, but it does not provide the answers to these fundamental questions that we are searching for. Having said that, I beg leave to withdraw the amendment.
Amendment 33 withdrawn.
Amendments 34 to 36A not moved.