Moved by Lord Fox
1: The Schedule, page 3, line 31, at end insert—“(5) The powers conferred by this section must not be exercised unless a consultation on the potential impact of their use has been carried out, published, and reviewed by a committee of each House of Parliament whose remit includes either the wider UK workforce and industrial relations, or the sector to which the regulations in question relate.(6) Such consultations must—(a) be carried out by the Secretary of State and involve representatives of any relevant unions, employers and other interested parties,(b) include an assessment of the potential impact of the minimum service regulations on the rights of workers to strike, the effectiveness of the relevant services, and the impact on the wider public,(c) consider services in all categories listed in subsection (4), and(d) include reference to respective service levels outside of strike action.(7) The results of the consultation and the reviews by committees must be published in a report, and the Secretary of State must lay a copy of the report before Parliament.”Member’s explanatory statementThis amendment would require a consultation to be carried out and reviewed before the powers in section 234B can be used.
My Lords, I welcome the Minister to his chair.
Amendment 1 is in my name and that of the noble Lord, Lord Collins. This amendment is agnostic about what is thought about the legislation’s purpose; you might support its intentions or you might reject them, and there are groups coming up after this one that will give your Lordships a chance to have that debate. This amendment revolves around what you think of Parliament and its role in making important laws that affect people in a big way. I will explain that briefly.
The central focus of the Bill is to establish legally binding minimum service levels for a range of services, some of which are delivered via the state and some of which are delivered via private companies. You will hear arguments later about how this is designed to work, but suffice to say the key element of the Bill is what constitutes a minimum service level that should be expected during a strike. The nature and quantum of this is critical to determining how many workers are effectively compelled to go to work on a strike day. The service levels are critical, and yet Parliament is effectively sidelined in the process of their development.
In the Commons, that celebrated supporter of the labour movement, Jacob Rees-Mogg, called the Bill “badly written” and an
“extreme example of bad practice”.
He criticised the lack of detail and said that it should instead
“set out clearly what it is trying to achieve”.
“This Bill is almost so skeletal that we wonder if bits of the bones were stolen away by wild animals and taken and buried somewhere”.—[Official Report, Commons, 30/1/23; cols. 89-92.]
Your Lordships will have seen the less colourful response from the Delegated Powers and Regulatory Reform Committee, which makes a similar plea for more detail in this primary legislation.
Despite this being a Bill that deals with minimum service levels during strikes—that is what it says on the cover—there is nothing in it to say what those minimum service levels are, or indeed the nature of what a minimum service level is. That is left to the Secretary of State. The vital details will follow the enactment of the Bill, when the Secretary of State makes regulations. The DPRRC describes this as “small comfort to Parliament”. The Government say that the detail required to set the level of service for each relevant service is not appropriate for primary legislation. However, the DPRRC notes that
“the Memorandum does not explain why setting out any detail on the face of the Bill would be inappropriate. Parliament”— as we know—
“is not allergic to matters of detail, particularly where it relates to an important matter such as the right to strike”.
Instead, the process of adding flesh to this skeleton is left to as yet unspecified regulation. The additional irritant to the scrutiny of the Bill has been the absence of a coherent or comprehensive impact assessment.
This amendment seeks to bolster Parliament’s oversight. It would require a consultation to be carried out and reviewed before the powers in new Section 234B for the Secretary of State to specify minimum service levels can be used. The amendment would insert three new conditions. First, proposed new subsection (5) would mandate proper consultation on the potential impact of the use of minimum service levels to be carried out, published and reviewed by a committee of each House of Parliament. Next, proposed new subsection (6) would ensure that the consultation includes all those involved; covers the potential impact of the minimum service regulations on the rights of workers to strike and the effectiveness of relevant services, and the impact on the wider public; and takes into consideration service levels outside of strike days. Finally, the amendment would insert new subsection (7), which would ensure that the results of the consultation and the reviews by the committees are published in a report, and that the Secretary of State lays a copy of it before Parliament. The Minister will say that extensive consultation is under way, but it is non-binding and bypasses Parliament.
In conclusion, this is a modest amendment that in no way impedes the purpose of the Bill. It is about democratic process—something your Lordships have often had to defend. Amendment 1 seeks to bring Parliament back into this process at the expense of undemocratic executive action. I beg to move.
My Lords, very briefly, I support this amendment. It seems to me that we have seen Bill after Bill in which this Government have chosen to bypass Parliament and leave too many decisions to Secretaries of State. Therefore, for me, as a former member of the Delegated Powers and Regulatory Reform Committee, the most important aspect of this amendment is the requirement, following consultation, to present these matters to committees of both Houses of Parliament. I do not want to say any more; the case has been made very clearly. However, I would like it noted that I support this amendment very strongly.
My Lords, I too will be brief in strongly supporting this amendment. Whatever your Lordships’ views about the state of industrial relations in this country, we should all agree, across this House, that a rushed process which puts power over making laws into the hands of Ministers without proper parliamentary scrutiny and oversight is simply not right. I appeal to all Members of the House to support Amendment 1.
As the noble Lord, Lord Blencathra, said in the debate on his committee’s report,
“when laws are passed without proper parliamentary scrutiny, they cease to be just technical, as they threaten the rights and freedoms of the individual”.—[
That is absolutely true when it comes to this Bill. There is no clear understanding of the form that minimum service levels are likely to take or of the impact on workplace relations and services to the public.
I draw noble Lords’ attention to the excellent briefing from NHS Providers, which is responsible for managing the NHS and 1.4 million staff. It says that the Bill
“risks damaging relationships in the NHS between trust leaders and their staff, and between trust leaders and local union representatives at a particularly fraught time, without addressing any of the issues underlying current strike action or providing a useful alternative approach to managing service provision during periods of strike”.
We have heard that the impact assessment from the RPC found that the Bill was red-rated. Not only did the impact assessment for the predecessor legislation make the point that it could lead to more and longer strike action but the impact assessment for this Bill, which received a red rating, said that the impact assessment
“does not consider or discuss the rationale behind workers’ decisions to strike, or consider the actions short of striking that may be taken. The IA could have considered this”.
As the noble Lord said, this amendment seeks not to prolong, delay or frustrate but to ensure that Parliament has proper oversight and that there is proper consultation with all those involved before the statutory legislation and the statutory instruments are laid. I support the amendment.
My Lords, I apologise for keeping the House waiting for the start of the debate; the previous business finished much earlier than everyone expected.
I am grateful to those who have contributed to this debate, although clearly we have repeated a lot of what was discussed in previous debates. The House will be unsurprised to hear that my position is similar to what it was in Committee. As I did then, I resist this amendment relating to consultation requirements, parliamentary scrutiny and assessment of impacts of the legislation.
As I made clear in Committee, it is my firm view that sufficient checks and balances are already built into the legislation before regulations can be made. This includes the need to carry out consultations—indeed, we are undergoing consultations at the moment on some draft regulations—which, of course, relevant parliamentary committees are able to and almost certainly will contribute to, as well as the requirement that regulations must be approved by both Houses before they can be made. Impact assessments will also be published for all subsequent regulations on minimum service levels.
Key stakeholders, including employers, employees, members of the public, trade unions and their members are all encouraged to participate in the consultations—some of which, as I said, are live even now—and have their say in the setting of the appropriate minimum service levels, and all that will happen before the minimum service levels come into effect, and only then if they have been approved by Parliament.
I am therefore of the view that this approach is both appropriate and in line with the normal way in which secondary legislation is made. As such, the Government believe that the amendment adds unnecessary duplication into the process, and therefore I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, I thank both noble Lords for their support for this amendment. The Minister is right that much of this debate has been had before in Committee. He is also right when he describes this as the normal way. I am afraid it has become the normal way that this Government operate to shunt as much power as possible to the Secretary of State and marginalise Parliament as often and as broadly as they can. This is a highly skeletal Bill—it is almost impossible to get one that is smaller. For that reason, I would like to test the will of the House.
Ayes 221, Noes 197.