Strikes (Minimum Service Levels) Bill - Committee (2nd Day) (Continued) – in the House of Lords at 5:30 pm on 23rd March 2023.
Moved by Lord Fox
37: The Schedule, page 5, line 35, leave out from “provision)” to end of line 37 and insert “is subject to the super affirmative procedure as set out in subsections (4A) to (4H).(4A) The Secretary of State must lay before Parliament—(a) a draft of the regulations, and(b) a document which explains the draft regulations.(4B) Where a draft of the regulations is laid before Parliament under subsection (4A), no statutory instrument containing the regulations may be laid before Parliament until after the expiry of the 30-day period.(4C) The Secretary of State must request a committee of either House of Parliament whose remit includes either the wider UK workforce and industrial relations, or the sector to which the regulations relate, to report on the draft regulations within the 30-day period. (4D) In preparing a draft statutory instrument containing the regulations, the Secretary of State must take account of—(a) any representations,(b) any resolution of either House of Parliament, and(c) any recommendations of a committee under subsection (4C),made within the 30-day period with regard to the draft regulations.(4E) If, after the 30-day period, the Secretary of State wishes to make regulations in the terms of the draft or a revised draft, they must lay before Parliament a statement—(a) stating whether any representations, resolutions or recommendations were made under subsection (4D),(b) giving details of any representations, resolutions or recommendations so made, and(c) explaining any changes made in any revised draft of the regulations.(4F) The Secretary of State may make a statutory instrument containing the regulations (whether or not revised) if, after the laying of the statement required under subsection (4E), a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(4G) In this section, references to “the 30-day period” in relation to any draft regulations is to the period of 30 days beginning with the day on which the original draft regulations were laid before Parliament.(4H) For the purposes of subsection (4G) no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.”Member’s explanatory statementThis amendment seeks to provide Parliament with the opportunity for enhanced scrutiny of the regulations made under this section.
My Lords, Amendment 43 in this group is also in my name. In a sense, this provides a more general debate, to which the noble Lord, Lord Collins, has given us an amuse-bouche.
Amendment 37 introduces a super-affirmative process, the need for which the noble Baroness, Lady Chakrabarti, referred to, although not in those same words. Those noble Lords who have participated in the same Bills as me will be familiar with this format, because I have brought it to several Bills—indeed, I am doing so concurrently. I did not invent this process, but I feel that it is a very good way of giving Parliament a sense of ownership and oversight of the sort of things that we are talking about today. It seeks to provide Parliament with the opportunity for extended scrutiny.
As the amendment sets out, it would takes 30 days, which is a reasonable amount of time, and would involve the relevant committee—it is difficult to know just now what that committee would be because the Government are moving the tables around, so we have kept it as “relevant” at this stage. The committee would make recommendations and, in preparing the draft statutory instrument containing the regulations, the Secretary of State must take account of what the committee has done and of any representations or resolutions that have come from either House. After the 30-day period, if the Secretary of State wished to make regulations, there would have to be some sense from the Government as to what had happened during the process of consultation. When the statutory instrument arrived, it would have to have approval in both Houses.
It seems to me that this is an entirely reasonable way of a Government acting in good faith. We have a problem with statutory instruments, in that they cannot be amended and are virtually never voted down by either of the larger parties when they are in opposition—which can sometimes be frustrating when I am sitting here. If the noble Baroness, Lady Noakes, was in her seat, I would pitch this as being a supportive way of giving Parliament some oversight of what is likely to be a relatively controversial process.
I turn to Amendment 43 in my name, and will reflect on the other amendments in the group. It is worth remembering that Clause 3 provides the power to make consequential provision—quite considerable power. It confers on the Secretary of State a regulation-making power to make further consequential amendments arising from the Bill; regulations that make consequential provisions that may amend, repeal and revoke an enactment passed either before this Act or later in the same Session as the Bill. It is an incredibly broad power, and it is absolutely clear, as we have seen from your Lordships’ committees, that this is something that concerns noble Lords.
The delegated powers memorandum sets out its justification for the Henry VIII powers. I am not going to read those out—I am sure the Minister will do that job for us. The Delegated Powers and Regulatory Reform Committee has been very clear in its verdict on the memorandum’s justification for the power: it is possible that not all the necessary consequential amendments have been identified in the Bill’s preparation. I think it is not just possible that they have not been identified, it is a certainty, given the lack of detail that we have before the Committee.
The problem is that the Government are taking an exceptional power either because they do not know what they want or because they do know what they want but do not know how to do it. This is a central problem with the Bill and these powers.
The DPRRC notes that even the Business Secretary at the time, Jacob Rees-Mogg, during the Committee stage of the debate in the Commons, characterised Clause 3 as
“almost so skeletal that we wonder if bits of the bones were stolen away by wild animals and taken and buried somewhere”.—[
It is a suitably florid phrase, as we have come to expect from Jacob Rees-Mogg MP. However, when someone of that political persuasion is convinced of the skeletal nature of this Bill, noble Lords opposite ought to be consumed with the same concerns. He specifically urged your Lordships to look at the clause and say that it is simply not something that we can pass into law as it is currently phrased. I did not think I would be standing here saying that I agree with Jacob Rees-Mogg, but I agree with him on this one. That can be used in evidence against me later.
Joking aside, the DPRRC’s report—I am not going to read it out verbatim because it has already been before your Lordships’ House—is damning about the powers that are contained in Clause 3. When the Minister writes his letter in response to this report, I hope it says he agrees with the DPRRC and that he takes on its recommendations when it comes to clipping the wings of this extremely undemocratic clause. I beg to move.
My Lords, I speak in support of this group of amendments, particularly Amendments 42 and 44, which, if agreed, would remove the unfettered power of the Secretary of State to amend, repeal or revoke primary legislation.
The strikes Bill is not a slight tinkering of existing legislation. What the Committee has before it is a far-reaching Bill. It is a draconian Bill which curtails the fundamental right to strike, weakens protections against unfair dismissal, violates ILO standards, and introduces the possibility of front-line workers facing dismissal for taking part in lawful industrial action. What we also have before us is a skeleton Bill, which until now has had little or no scrutiny—a Bill which has been rushed. It has been described as having Henry VIII clauses on supercharge and, as we have just heard, as a skeleton Bill lacking bones.
It is only 10 weeks since I had the privilege of making my maiden speech in support of two House of Lords committee reports which go to the core of our democracy: Democracy Denied? and Government by Diktat. In that debate, I spoke of the public’s growing distrust of our Parliament, not just in the devolved nations but throughout the UK. I acknowledged that the reasons for this were complex and that concern about the increasing use of statutory instruments was not something you would hear discussed in the pub or the supermarket, or even around the breakfast table. So why does it matter?
It matters because the processes of Parliament through which we govern are so important. They instil trust and confidence in our democracy. Secretaries of State who avoid parliamentary scrutiny call into question that very trust and confidence in our whole institution. It matters because global confidence in our economy is intrinsically bound up with confidence in our democratic traditions, and it matters because skeleton legislation could lead to the very government by diktat that noble Lords of all persuasions have set their stall against.
That is why the Bill we have before us today is so fundamentally flawed. It flies in the face of both those reports and, unless amended, it will give unfettered powers to the Secretary of State to revoke or amend primary legislation through regulation. That is why Amendments 42 and 44 are so important.
The Bill is deficient in so many respects. It is vindictive and divisive, and it does nothing to deal with the serious crises our public services are facing. The report of the Regulatory Policy Committee, which we have heard about, states that the Bill is not fit for purpose—a damning indictment by any standards. NHS Providers states that it will undermine partnership working in the NHS. The Joint Committee on Human Rights criticises the:
“Heavy-handed sanctions … compounded by vague rules”.
Comparisons made with other European countries simply do not stack up and have been roundly dismissed by those countries themselves. If the Bill becomes law, there is a real risk of contravening our international obligations. For me, it is simply unnecessary and harmful.
In the last few weeks we have seen public service workers, their unions and employers coming together to reach agreements, trying to help so many workers and their families who are suffering. Yes, it may have taken far too long, but both sides are now at the table, doing what they do best: talking, negotiating, reaching accommodations, finding ways forward and, most of all, working to restore relationships for the future. This Bill will damage all that good work. It is vindictive and malicious and it will set the scene for conflict and retaliation for the next decade, just at a time when there is light at the end of the tunnel.
I ask the Minister to accept Amendments 42 and 44. Failing that, I ask him to explain why he will not. More than that, I ask him to think again. Surely it is time for the Government to reconsider their position on the Bill and put it on the back burner, where it deserves to be.
My Lords, I support Amendments 37 and 43 in the name of the noble Lord, Lord Fox.
Many noble Lords have already commented on the Bill’s skeletal nature—I will not repeat their comments here. Amendment 43 would insert an invaluable safeguard, removing overreaching Secretary of State powers to amend, repeal or revoke primary legislation through secondary legislation. Liberty writes that, as it stands, Clause 3 is a “broad Henry VIII power”—we have heard that monarch referred to several times today; I fear I may refer to him again in a moment. It is also a prospective power that allows the Government to amend and revoke legislation not yet passed.
The delegated powers memorandum seeks to justify this power as a prudent provision to deal with any necessary consequential amendments identified in the Bill’s preparation. As the noble Lord, Lord Fox, reminded us, this means that the Government are taking this exceptional power either because they are not sure what they want to achieve or because they do not know how to get there. I do not believe either of those to be an adequate justification, and I am delighted to hear that Jacob Rees-Mogg may be of a similar opinion.
I enjoyed the remark of a noble and learned Lord earlier today that this is “Henry VIII on stilts”. It left me wondering whether I should be imagining the young Henry, fit and active, or the monarch in his latter—shall we say rather less athletic?—years. The older Henry would have crashed off his stilts to huge personal injury and embarrassment. I fear that the Bill, if enacted in its present form, without adequate parliamentary scrutiny of the exercise of these Henrician powers, will be an equally damaging and embarrassing moment in our nation’s governance.
Will the Minister please reflect on these probing amendments and come back to this House on Report with something more fit for the role and responsibilities of this kingdom’s Parliament in the reign of Charles III?
I will talk to our Amendments 42, 44 and 45; I also support Amendments 37 and 43. My noble friend Lord Prentis mentioned the debate we had on the reports from the Secondary Legislation Scrutiny Committee and the Delegated Powers Committee, Democracy Denied? and Government by Diktat. The two chairs of the committees at the time led the debate and reflected opinion across the House. The noble Lord, Lord Blencathra, said that this is a trend: these are not just technical statutory instruments but impinge on people’s fundamental freedoms. The noble Lord, Lord Hodgson, reminded us, and it has been repeated many times, that these are fundamental policy positions that can be debated and considered but not amended or revised. They cannot reflect all the things we have been talking about, particularly consultation.
I give warning to the Minister. We have heard the quotes from Jacob Rees-Mogg and his concerns about this. When we get to Report, I think we will hear deep concern about the Bill from across the House, irrespective of where we might stand on the political spectrum. We are all united in this House about the dangers that this sort of skeleton Bill could lead to. Jacob Rees-Mogg is not just saying that because he does not trust the Conservative Government—I have no doubt that he does not trust future Governments with future powers, which is what these clauses are about. As the right reverend Prelate said, this is not just about powers to amend primary legislation. It is also saying, “We might not get it right, so we have to think about future legislative powers”. It is an amazing grab, which I do not think the House will put up with. It is really important that we reflect on these things.
I am always conscious of what the noble Lord, Lord Lisvane, said, and have repeated it on numerous occasions. When we come to fundamental policy issues, let us have a debate about it and take into account all the considerations. In the old days, we would even have a Green Paper—a radical idea—and then a White Paper. Then we would have a debate about the proposed legislation. We might not like the proposals, but we would be aware and at least we would have had a fundamental discussion. Here, we do not know what minimum service levels are, what powers Ministers are going to take, or the impact it will have on fundamental rights or even on primary legislation. Again, it is about a grab for power.
My noble friend Lady Donaghy said, “Gis a power”. I will keep repeating that; it is really quite useful, because it sums up where this Government have reached. They have run out of ideas and policies; they now just want to resort to narrative that they think will have appeal. I think they have even got that wrong, because I do not think the public will follow the narrative the Minister keeps repeating today. I think the people know who is responsible and how they want it resolved. We have seen it resolved in the health service and elsewhere. Our concern here is that this is an unacceptable power grab.
My Lords, as I set out in the previous group, which the noble Lord, Lord Fox, described as the amuse-bouche grouping, there are already sufficient checks and balances built into the legislation before any regulations can be made. These include the need to carry out consultations with key stakeholders, including employers, employees, relevant trade unions and their members, who are all encouraged to participate in the consultations—we have some of the regulations out for consultation at the moment—and have their say in setting minimum service levels before they come into effect.
Parliament, including Select Committees, will also have an opportunity to contribute to the consultation and scrutinise the regulations. The Government firmly believe that this is the right approach. It ensures that a wide range of views can be gathered. Parliament can scrutinise regulations without significantly delaying the implementation of MSLs and therefore extending the disproportionate impact that strikes can have on the public.
Amendments 42 to 48 all seek to amend the provisions to make consequential amendments. The Government resist these amendments on the grounds that Clause 3 is a fairly standard clause, used regularly in primary legislation. Let me explain to the Committee what it is for. The power to amend primary legislation within the clause is a standard power with standard wording. Perhaps it will be helpful to give some examples of where it is on the statute book already. It is in Section 182 of the Health and Care Act 2022, Section 47 of the Corporate Insolvency and Governance Act 2020, Section 23 of the Bus Services Act 2017—I am sorry that the noble Baroness, Lady Randerson, is not here to hear that—and Section 66 of the Children and Social Work Act 2017. This power is not unique to legislation introduced under a Conservative Government. I say to the noble Lord, Lord Collins, that Section 51 of the Constitutional Reform and Governance Act 2010 also includes the same power. Additionally, the report, The Legislative Process: the Delegation of Powers, published by the Lords Select Committee on the Constitution in 2018, states:
“Delegating power to make provision for minor and technical matters is a necessary part of the legislative process … Delegated legislation, which is subject to less parliamentary scrutiny, should only be used to fill in the details.”
That is exactly what this power is intended for.
I remind noble Lords that the DPRRC did not draw attention to or raise concerns about this delegated power in its report published on
Amendment 48 seeks to remove the power for the Secretary of State to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd. The Government again resist this amendment on the grounds that the provisions of this Act will extend to England and Wales and Scotland. Employment rights and duties and industrial relations are reserved in respect of Scotland and Wales. Therefore, it is right that the Secretary of State has the power to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd, if required to ensure that the new legal framework operates in a coherent way across the entirety of Great Britain.
The disproportionate impacts that strikes can have are no less severe on people in Scotland or Wales than they are in England. They have every right to expect the Government to act to ensure that they can continue to access vital public services during strikes. The Government will of course engage with the devolved Administrations as appropriate. I have met devolved Ministers to discuss the Bill. Obviously, we will engage further if any consequential amendments are required to Acts of the Scottish Parliament or Welsh Assembly. As this clause is completely standard and has been introduced in several pieces of legislation, including by a previous Labour Government, I hope that noble Lords will feel able to withdraw or not move their unnecessary amendments.
Turning to Amendments 45 and 46, I believe that the intention of the noble Lord, Lord Collins, is to delay the commencement of regulations providing for minimum services until the Government have assessed the Bill’s impact on recruitment and retention in the public and private sectors, and the impact on those with protected characteristics. However, the amendments as drafted are to Clause 3, which provides a power to the Secretary of State to make consequential provision. Therefore, the amendments would delay commencement of regulations which make consequential amendments to other legislation.
Speaking to what I believe is the intended purpose of the amendment, I say that the Government resist it. As I have already set out in my response to the noble Lord, Lord Fox, the Secretary of State must consult on regulations, and they must be approved by both Houses before they can be made.
Impact assessments will be published for all subsequent regulations on minimum service levels and will, as always, contain a public sector equality duty assessment. I also draw noble Lords’ attention to the already published impact assessments for the Bill and currently ongoing consultations on establishing minimum service levels in ambulance, fire and rescue, and rail services, all of which contain public sector equality duty assessments. I hope that I have convinced noble Lords to withdraw and not move their amendments.
I thank noble Lords for their contributions to the debate on this group. I am particularly grateful to the right reverend Prelate the Bishop of Leeds for painting a picture of King Henry VIII strutting across the Field of the Cloth of Gold on a pair of stilts.
What an awful mistake to have made—I am very sorry and correct the right reverend Prelate’s territory. This is a serious group of amendments. The fact that it comes at the end of a day, and a long week, should not detract from that seriousness.
Listening to the Minister’s response, I was struck by the tone, which is: “This is a perfectly reasonable process. We are having a consultation and doing this and that. These people can contribute, and Parliament can contribute through the consultation”. It is for Parliament to make these decisions—not for the Government to do so, allowing Parliament to feed a little into the process.
The Minister has proposed the particular frame that we see in Clause 3 too many times. He went through a short list of Bills. I am aware of two of those, having participated in them, and I spoke against that power on both occasions. None of those is seven pages long and devoid of the detail required, but that is what the Bill is.
Surely all these other Bills consist of a bit more than two delegated powers. That is what this Bill is.
I am beginning to feel sorry for Henry VIII. He was born a King and born to rule. I am thinking more of Julius Caesar, who was supposed to be part of a republic and led to its demise so that it became an empire. How did he begin that process? It was by diktat, by becoming a dictator. Powers such as this pave the way for that.
I thank the noble Baroness, who has now introduced history; having failed geography, I will not enter into the history debate. She is completely correct: these powers are being taken for a Bill that is nothing. For the Minister to use the examples he did was completely inappropriate: they are different Bills of a different nature and scale.
We look forward to the Minister’s official response. I think he promised a letter on the DPRRC. I will study Hansard carefully on this. As the noble Lord, Lord Collins, put it, we will be doubly resolved that this issue cannot be left in Committee. We will certainly come back, unless the Minister’s letter turns out to be better than I normally expect. That said, as usual, I beg leave to withdraw.
Amendment 37 withdrawn.
Amendments 38 to 41 not moved.
Clause 2 agreed.
Amendments 42 to 48 not moved.
Clause 3 agreed.