Amendment to the Motion

Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels) - Motion to Approve – in the House of Lords at 4:15 pm on 6 December 2023.

Alert me about debates like this

Baroness Bennett of Manor Castle:

Moved by Baroness Bennett of Manor Castle

As an amendment to the motion in the name of Lord Johnson of Lainston, 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.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

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.

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, John Penrose, 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.

Photo of Lord Geddes Lord Geddes Deputy Chairman of Committees, Deputy Speaker (Lords)

I was so fascinated by the noble Baroness’s speech.

Photo of Lord Fox Lord Fox Liberal Democrat Lords Spokesperson (Business)

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, Lord Callanan, has now left as I thought he was overseeing the realisation of his creature; of course, it was the noble Lord, Lord Callanan, 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?

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, Lord Callanan, 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, Lord Callanan, 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.

Photo of Baroness Noakes Baroness Noakes Conservative 4:45, 6 December 2023

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, Lord Collins of Highbury, 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.

Photo of Lord Cromwell Lord Cromwell Crossbench

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.

Photo of Baroness O'Grady of Upper Holloway Baroness O'Grady of Upper Holloway Labour

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, Lord Offord, 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, Boris Johnson, 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?

Photo of Lord Hendy Lord Hendy Labour

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”.

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.

Photo of Lord Sikka Lord Sikka Labour 5:00, 6 December 2023

My Lords, it is a pleasure to follow my noble friend Lord Hendy. 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.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee)

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.

Photo of Lord Johnson of Lainston Lord Johnson of Lainston Minister of State (Department for Business and Trade)

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, Lord Cromwell, 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, Lord Fox, 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.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

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.

Photo of Lord Johnson of Lainston Lord Johnson of Lainston Minister of State (Department for Business and Trade)

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.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

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, Lord Hendy, 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.

I thought the comment from the noble Lord, Lord Sikka, 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, Lord Cromwell, 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, Lord Cromwell, was clearly concerned about it. I have to commend the noble Lord, Lord Fox, 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.