Amendment to the Motion

Strikes (Minimum Service Levels: NHS Ambulance Services and the NHS Patient Transport Service) Regulations 2023 - Motion to Approve – in the House of Lords at 5:45 pm on 6 December 2023.

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Baroness Bennett of Manor Castle:

Moved by Baroness Bennett of Manor Castle

As an amendment to the motion in the name of Lord Markham, to leave out all the words after “that” and to insert “this House declines to approve the draft Strikes (Minimum Service Levels: NHS Ambulance Services and the NHS Patient Transport Service) Regulations 2023 because they expose trade unions to liability of up to £1 million, make trade unions act as enforcement agents on behalf of employers and His Majesty's Government, and will add strain to industrial relationships when the National Health Service needs to protect them.”

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

My Lords, in speaking after the noble Baroness, Lady Merron, I must respectfully disagree with and indeed correct her on one point. I do not now accept that your Lordships’ House does not have the responsibility, in exceptional circumstances that I have set out before, to act to stop statutory instruments that should not go through. However, your Lordships will be pleased to know that I will not rehearse all the arguments I referenced in my earlier speech.

I also correct the noble Baroness on her suggestion that there has to be a Labour Government to protect the rights of working people. We have to get rid of the Conservative Government, but other options are available. The see-saw of politics that we have had for the past century has not served this country well, and its people are increasingly aware of that fact.

I am aware of the desire to move quickly to a vote, so I will be brief, but I will pick up a point from the Minister. Again, it is important in this debate to reference the briefing from the Royal College of Nursing, which stresses that the regulations seek to make trade unions responsible for breaking their own strikes. As the Royal College of Nursing makes clear, the Government had claimed this is not about nurses, but there are nurses working for the services that we are now talking about. It seems so long ago that we were all standing on doorsteps clapping, cheering and banging pots for our nurses and other medical workers who were putting their lives on the line. Look where we are now.

The RCN briefing also makes the important point, as the Joint Committee on Human Rights noted, that the minimum service level requirements may impact more severely on certain protected groups—most obviously women in respect of nursing. This is a gendered attack on the freedom of members of the RCN. As the RCN says, and as others have said before, this whole approach makes strikes more likely, not less likely.

In a recent survey of RCN members, 83% of nursing staff said that the staffing levels on their most recent shift were not sufficient to meet the needs of patients safely and effectively. I, and I think all medical workers, strongly believe in minimum service levels. We need to have them every day, and the Government have not created a situation in which that is possible.

For the avoidance of doubt—we want to move on to other votes—I am not planning to divide the House on this but, in the meantime, to allow the debate, I beg to move.

Photo of Lord Allan of Hallam Lord Allan of Hallam Liberal Democrat Lords Spokesperson (Health)

My Lords, it is good that this instrument applies only to ambulance trusts in England. That is the last time I will use the word “good” in association with this statutory instrument, but it certainly reflects a lot of feedback, particularly by the noble and learned Lord, Lord Thomas of Cwmgiedd, and others, that we had during the debate on the primary legislation, when we felt we had to remind the Government that the health service is devolved and that it was inappropriate to seek to interfere too far. It was interesting to hear the Minister say that the Government have made an offer of assistance to the Governments in Wales and Scotland in respect of giving them these wonderful minimum service levels. I would love to be a fly on the wall for those conversations, which I am sure are very short.

I turn to the substance of the requirements. The people running local health services are like watchmakers looking after very complex mechanisms with many different moving parts. From time to time, we work with those professionals on health and care legislation that provides tools for them to tune and improve their services. What is before us today is not such an instrument but rather reflects that the Government have decided unilaterally to give local health authority managers a hammer, because that is what the Government think they need. Yet the feedback we have had from all those who work in the National Health Service, as cited by the noble Baroness, Lady Merron, is that they clearly believe that this is the wrong tool for the job. Given that feedback, it seems quite likely that many trusts will choose not to use the powers to issue work notices. If that is the case, perhaps little harm will ultimately have been done other than wasting parliamentary time on creating the law and the regulations.

But there is a worrying scenario, which we explored during the legislative process, that was not sufficiently addressed—where trusts that do not want to issue work notices nevertheless feel compelled to use them for legal reasons. I would like the Minister to come back to this today and provide some more compelling assurances. If an ambulance trust, after the passing of these regulations, wishes not to use this mechanism but instead to negotiate voluntary agreements, as the Minister said that he would like them to do, will it truly be free to make that choice? If politicians want to urge trusts to use the hammer of work notices that they have given them, that is one thing. They can deal with the political pressure. But if, by declining to use these notices, they will expose themselves to new legal risks, that is much more problematic. Trusts may then feel that they have to use the hammer, even where they believe it will cause more damage, because they cannot risk being sued for not doing so. Can the Minister give a clear guarantee that his department has looked into this thoroughly and determined that trusts will continue to be able to use their best judgment on what will cause least harm to the communities they serve?

Where a trust has exercised its judgment not to issue work notices and things go wrong, as inevitably may happen from time to time, for a variety of reasons, we need to know that the trust will not face action either from the department or from any other third party. Absent that assurance, the safe option may be to issue the work notices, for the trust to take the hammer to the watch, whether or not it thinks it is a good idea. This is the crucial point. If we are to believe the Minister’s reassuring words, that this will still create the scope for trusts to negotiate voluntary agreements and they will not have to issue these work notices, we need to know that the department has looked at this and can give us that kind of copper-bottomed guarantee, rather than simply saying it will not be a problem.

Photo of Lord Woodley Lord Woodley Labour

My Lords, I declare an interest as a former leader of Unite the Union, which represents ambulance workers and other NHS staff up and down our country. My noble friend Lady Merron has powerfully laid out the arguments against the draconian regulations we are considering today. I will emphasise three points in the short time that I have now.

First, these regulations are entirely unnecessary. Trade unions already agree life and limb cover during strike action—noble Lords know that. These arrangements work well, giving confidence and flexibility if workers are needed to leave the picket line to respond to emergencies. We have always done that. Central to the NHS disputes over the past year are the unsafe staffing levels due to poor pay and retention. Why are the Government so keen on minimum staffing levels on strike days but do not care what happens when staff are not striking?

Secondly, these regulations will simply poison industrial relations between employers and workers, as all the impact assessments have shown us. When you deprive somebody of their ability to strike after a ballot, how can you be surprised when this causes widespread anger and resentment? Without being able to take effective strike action, workers will of course seek new ways to put pressure on employers, including work to rule and overtime bans. With all good faith gone, disputes will drag on and become even more bitter. Forcing workers to cross their own picket lines, with unions made to take so-called reasonable steps to enforce this, is undoubtedly a recipe for disaster. Mark my words: when the first worker is sacked for refusing to cross their picket line, there will be a major escalation of industrial action. Is that what the Government really want?

Finally, these measures are just the latest in a long line of union-busting legislation from this Government. It is a disgrace that they continue to attack workers’ rights when they promised an employment Bill to make Britain the best place to work in Europe. Instead, they are trying again to repeal the ban on using agency staff to break strikes, despite the High Court ruling that said it was unfair, unlawful and irrational.

In this place, we are privileged to be able to hold the Government to account and to help protect people from greed and exploitation. I urge noble Lords to stand up for the hard-pressed workers of this country, already suffering from a cost of living catastrophe not of their making, and to vote down these vindictive, destructive and, above all, counterproductive measures.

Photo of Lord Prentis of Leeds Lord Prentis of Leeds Labour

My Lords, I speak in support of the amendment put forward by the noble Baroness, Lady Merron. As recently as 20 July this year, this House debated a report from our Public Services Committee, very aptly entitled Emergency Healthcare: A National Emergency. The report found the emergency healthcare workforce to be under unprecedented strain, facing significant challenges and shortages, low job satisfaction and retention rates. Ambulance staff were described as overwhelmed, fatigued and depleted. Many stated that they were suffering from work-related stress, covering for 3,000 job vacancies in the ambulance service alone.

The report concluded:

“Without concerted action to address the emergency in the system”, many of the emergency healthcare workforce

“will leave the health service”.

The report is reinforced by the Government’s own delivery plan for recovering emergency services, also published this year. The government plan states that this is the

“most testing time in NHS history”, which is, in its words, taking its

“toll on staff, who … work in an increasingly tough environment”.

Our ambulance services are struggling to cope. If we are to restore service to the levels that we all want, never in the history of our NHS has partnership, which has thrived in our health service for more than 75 years, been more important. The Government, employers and unions should be working together to pick the emergency healthcare workforce off the ground and to improve ways of working and service delivery for the benefit of patients.

These draft regulations on the ambulance service have the ability to undermine all that. They have the ability to escalate tensions and worsen industrial relations at the very time when there has never been a greater need for the Government to enhance social partnership working within the ambulance service.

The Government are ignoring NHS Employers, which made it clear that it did not want the legislation. As my noble friend Lady Merron pointed out, NHS Providers told the Government that it would be a further challenge to industrial relations at the very time when the NHS needs to protect them. The Government are also ignoring their own impact assessment, which showed how unworkable the statutory instrument would be. The assessment referred to stakeholders who thought that

“the issuing of work notices would be challenging and time-consuming”.

It also referred to the difficulty of

“consulting with a number of unions” and

“communicating with workers, who may disagree”— the list goes on.

This legislation has all the hallmarks of the worst form of skeleton legislation, as criticised by our Secondary Legislation Scrutiny Committee. It was a Bill so devoid of content that it left the operation of the law to Ministers. The consultation process gave the impression to the world that the Government had recognised—even praised—the joint arrangements already in place. Now, however, the draft regulations relating to ambulance services have set the bar so high that many could not be achieved on a normal working day, let alone in the current circumstances.

It has often been said that, in this country, we have among the most draconian restrictions in the western world on workers legally withdrawing their labour. For ambulance workers, paramedics, nurses and control room staff, taking industrial action is the last resort. For many, the action taken in the past year was the first in their working lives. For many, pummelled by a pandemic and hammered by the cost of just living, it was a cry for help. Now, however, if the Government have their way, some will face the possibility of dismissal for taking lawful industrial action. Ministers of all political parties have always wanted to look tough on striking public service workers; it is par for the course. However, this legislation and these draft regulations can do so much damage without, in the words of NHS Providers,

“providing a useful alternative approach to managing service provision during periods of strike action”— its words, not mine.

The statutory instrument on ambulances rides rough- shod over all the arrangements jointly agreed in every ambulance trust to protect patient safety. It has a real ability to undermine the social partnership working built up over half a century, which is so essential if we are to implement successfully the long-awaited NHS long-term workforce plan and restore the health of our nation. It is for these reasons that I ask this House to support the amendment on ambulances and NHS transport put forward by my noble friend Lady Merron.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee) 6:00, 6 December 2023

I thank the Minister very much and welcome the fact that, although this legislation extends to Wales and Scotland, it applies to neither of them. This is a welcome change of mind; I hope that it will be carried through in other pieces of legislation or other instruments contemplated that relate to both education and the NHS.

I want to add one further observation, if I may, in support of what the noble Baroness, Lady Merron, said. We can of course pass instruments of this kind after the Government have gone out to consult, and they can say with some force that they have had some views, but doing it that way diminishes the status of our democracy. This is the place where the debate should take place. On a contentious issue—this is very contentious—we ought to have the argument here so that people know that it is open. I very much hope that a means can be found when we get to the more contentious areas of education and staffing levels in the other aspects of the NHS—perhaps on other matters, too—so that we have a mechanism for a meaningful debate in this Chamber for the strength and the health of our democracy, which is under such pressure from some who think that their voices do not count.

Photo of Lord Rooker Lord Rooker Labour

My Lords, I came in today to break the habit of a lifetime—I have been in the House for more than 20 years, half of them as a Minister—because I proposed to vote against the first two Motions. I was going to support the first two fatal amendments. I felt deprived that I did not have the opportunity to do that—I am still going to make my points, mind you.

These are steps too far. I do not think that we should pussyfoot around. We know that, earlier in the year, the Government rejected the report on the Bill from the Delegated Powers Committee. There are times when this House should not simply fall into line with this Tory Government; this is one of them. I am reminded in some ways that, very sadly, we are missing today the contribution of the late Lord Judge who, earlier this year—on more than one occasion—made it clear from those Benches that we need to use the powers available to this House when we need to be firm. There were a couple of debates on it. In my view, this is such a time.

In answer to the Lib Dem Benches, we know that the health service bosses are not independent—we know that from the pay review bodies—so it is fairly obvious what will happen. I realise about the so-called conventions but they are between Labour and the Conservatives. There is no rule in the Statutory Instruments Act 1946 about not voting against a statutory instrument in either House; it is just the convention that we do not do it. We fear now that, if we do it to them, they will do it to us. In fact, the Tories have done it more to Labour than Labour have to the Tories so I am not going to take any lectures about conventions from this Government, who have breached, systematically ignored and torn up many of the conventions that rule our constitution. I will not rely on the use of fatal amendments by the noble Lord, Lord Strathclyde, either.

One area will suffice as an example: electoral law. I am in favour of ID cards but the identity system was deliberately designed to reduce voting. Rees-Mogg admitted when he was the Leader of the other place that they had got it wrong: they fully intended to get fewer people in polling stations. The Government have neutered the Electoral Commission as the guardian of free and fair elections and, this past month, they changed the finances of elections, all without any consultation and with no Speaker’s Conference whatever. That is part of the constitution and the conventions on the way we do things. We do not have to follow the conventions: if a thing is bad enough, vote against it.

Paragraph 41 of the Secondary Legislation Scrutiny Committee report on these regulations—this committee reports to this House, having been set up by the House to look at these issues—says:

“The Department of Health and Social Care’s … consultation document acknowledged that, during past strikes, emergency provision has been delivered through voluntary arrangements”.

So why are we doing this? Why are we picking on ambulance workers? It is not needed. If there were any evidence of flagrant abuse and the voluntary system not working, believe you me, your Lordships would know about it. That is the reality. Therefore, on this one, if anybody called the vote—although it has now been denied—I would be happy to vote against the SI.

I cannot quote much from my experience. When you lose the opportunities of the other place to be in contact with constituents and with people’s daily lives, it is different; it is different when you stop representing people simply because you are in this place. However, I will give one example from my personal experience. Four years ago this month, a few days before Christmas, I was carted really late one Saturday night from Hereford County Hospital, which had spent four years stopping me going over to the dark side, to Worcester Royal, to have my first chemotherapy as an in-patient. The weather was atrocious; the main roads were blocked. The driver of the ambulance said to me, “I’d better warn you now: it might be a bit rough—I’ve got to go down some country lanes”. We passed three upturned cars due to the weather. When I got through it all, I wrote to the chief executive and said, “You’d better put a note on the chitties of those two people who looked after me in that ambulance that night”. It was absolutely horrendous.

I now think that people like that who do this job cannot be trusted to deliver emergency services when there is a dispute—disputes deliberately created by the Government anyway for political reasons. The reality is that I am prepared to vote against this SI, above the others—I am not saying anything about the other two. We have evidence from our own committee that it is not needed, and I have my own bit of personal experience. I thought, “Why pick on the ambulance workers?” If there were an opportunity, I would vote against the SI; I may not have the opportunity, therefore I will obviously support the regret amendment. However, I much regret that I may not be able to vote for the fatal amendment.

Noble Lords:

Minister!

Photo of Lord Markham Lord Markham The Parliamentary Under-Secretary for Health and Social Care

I thank noble Lords. In keeping with other comments, I will be brief in my response. We genuinely see a situation where, as the noble Baroness, Lady Bennett, said, we all agree that we want minimum service levels every day. As the noble Lord, Lord Collins, said in the previous debate, no one is against minimum service levels. All we are talking about here are the tactics to how we achieve that. I also totally agree with the point made by the noble Baroness, Lady Merron, that using the language of conciliation has to be the right approach in disputes. However, all these SIs are designed to do is to provide that safety net. To address the point of the noble Lord, Lord Rooker, there have been other circumstances where there was a genuine concern that strikes would not enable those minimum service levels to be fulfilled. That is what we are talking about today.

In response to the point made by the noble Lord, Lord Allan, I agree that it will be up to the ambulance’s trust, or the other trust when we come to other parts, to use its best judgment on how to achieve those minimum service levels. It is at management level, but it is then our job as the Government to hold them to account. Clearly, if during these strike actions the trust was not achieving minimum service levels, and there were certain standards which put patient safety at risk, in those circumstances I would be expected, as would any Minister, to ask the relevant trust why that was the case and perhaps to reconsider, because its judgment call did not bear fruit on that occasion. This is all about trying to give the trust part of the toolkit to ensure what we all want, which is minimum service levels. We are not compelling it; we are giving it the choice to do it. We hope that it is never needed but we believe it is an important part of the toolkit.

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

My Lords, I note that no Tory Back-Benchers are speaking in favour of the Government in this part of the debate. I note also the comments made by the noble Lord, Lord Rooker, who came at it in a different way to how I did. The House is again and again butting against the question “If not now, when?” We have the power to act. Not acting is as much of a choice as acting is. I am sorry to disappoint the noble Lord, Lord Rooker, but I am aware of the time and the pressure to move on to more votes, so I beg leave to withdraw the amendment.

Baroness Bennett of Manor Castle’s amendment to the Motion withdrawn.