With this it will be convenient to discuss the following:
“the provision of essential public services.”
Amendment 6, in clause 3, page 2, leave out lines 7 and 8.
Amendment 9, in clause 3, page 2, leave out lines 11 and 12 and insert—
‘(2D) In subsection (2B) “essential public services” means those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population.”
We have already touched on aspects of clause 3, but there is a more substantive debate to be had on it. As Committee members will know, the clause seeks to introduce a requirement that in “important public services”, 40% of those entitled to vote must vote in favour of industrial action, and that there must be a 50% turnout. In certain important public services, that will mean that if 50% of members participate in the ballot, 80% of those voting must vote in favour in order for a strike to take place. For example, if 500 members are balloted, at least 250 members must vote in the ballot and 200 must vote yes for industrial action to go ahead.
As I have said, if the Government were serious about increasing participation, whether in important public services or anywhere else, they would be taking the measures that we are proposing. I certainly believe, and I am sure my fellow Opposition Members would agree, that the Government’s real agenda is to prevent public sector workers in particular, on whom the legislation will have a significantly greater impact, from raising legitimate grievances and opposing changes to their pay, pensions and rights at work planned in this Parliament. One might even suspect that the Government had such plans in their agenda for the months ahead.
While politics are clearly at the heart of the Bill and this clause in particular, the Government have other legal obstacles to manoeuvre. As I outlined in the debate on the last clause, many legal experts believe that treating abstentions as “no” votes for industrial action is undemocratic and potentially illegal, and conflicts with international standards. International supervisory bodies such as the International Labour Organisation state that only votes cast should be taken into account.
The next hurdle for the Government will be of particular interest to noble Friends and Members in the other place when they read the debates we have had on the Floor of the House and in Committee. The Conservative manifesto in the 2015 general election referred to making provisions regarding only “essential public services”. That was also the specific term used in Her Majesty’s most Gracious Speech, delivered on 27 May 2015:
“My Government will bring forward legislation to reform trade unions and to protect essential public services against strikes.”
In a previous life, I was involved in drafting a line in Her Majesty’s speech. Obviously, it was subject to Her Majesty’s approval, and I am glad she delivered it. A great degree of rigour and attention is paid to the specific wording, so that Her Majesty feels confident with it and it reflects the Government’s intent very clearly. That is an important point.
“Essential” is the word used in International Labour Organisation conventions, and it has a very narrow legal definition. To quote an ILO general survey, the definition is restricted to services
“the interruption of which would endanger the life, personal safety or health of the whole or part of the population”.
Transport services, public transport, public education, port authorities, postal services and others all fall outside that category. Given that, I very much suspect—perhaps the Minister can enlighten us when he gets to his feet—that the Government realised that the legislation was poorly drafted and that using those words would leave it vulnerable to serious legal challenge, so they sought to row back, instead changing the wording to “important” public services, as we now see in the Bill. Disturbingly, those public services are to be defined by the Secretary of State in as yet unseen secondary legislation.
A number of categories of services are referred to in the clause using very broad terms, such as “health services”. There is
“education of those aged 17 and under”,
which we discussed in the devolution debate; I do not want to go over old ground, but that causes particular issues for differing education systems across the UK. “Fire services” are referred to, as are “transport services”—in a very general sense, and we have already heard how those are excluded from the ILO definition. There is
“the decommissioning of nuclear installations and management of radioactive waste and spent fuel”,
and “border security”.
Those provisions, alongside the consultation document, are so wide that they could apply to nearly every area of publicly funded activity. One might think that the Government have taken their chance not only to ensure that they can potentially avoid legal challenges—although I think this could still be subject to one—but to draw the definition as wide as possible so that everybody would be forced into the 40% threshold. What assessment has the Minister made of whether it is predicted that the other place will still feel bound by the Salisbury convention, given that the clause clearly breaches a Conservative manifesto commitment, let alone the specific text that was in the Gracious Speech?
What assessment has the Minister made of the effect that the proposals will have on women? We have discussed that at length already, but TUC research suggests that nearly three quarters—73%—of trade union members working in important public services, as defined by the Government, are women. I imagine that Committee members will vote on the proposals shortly; does the Minister think it is appropriate that they do not yet know for certain to whom they will apply? We have to take our responsibilities as legislators in this place very seriously. We do not know what this secondary legislation is, but the Government are again saying, “Trust us, trust us. We’ll be all right. We’re going to put this stuff down and you’ll be fine with it.” That is not acceptable. The Bill has been scheduled for some time; the Government have had plenty of time to introduce the regulations and they have not. What we know for certain, as I said, is that the proposals will impact on public policy areas that are wholly devolved, and that will have the implications we have discussed.
At this stage, it is also important to challenge one particular myth that is being peddled by those in favour of the Bill. It is a particular favourite of the hon. Member for Uxbridge and South Ruislip (Boris Johnson) who, on Second Reading, suggested that unions are required to meet a 75% threshold in Germany. For the record, that is not accurate. Some German trade unions have adopted rules requiring 75% support for industrial action among members, but those are decisions taken by the union within its own democratic structures, not imposed by the state.
Does my hon. Friend agree that many trade unions in this country also have internal procedures whereby they will ask for a higher threshold on certain ballots for strike action in order to make sure that the result is overwhelming, and well beyond what is legally required?
I agree absolutely. I think that sits alongside the comments made by the hon. Member for Glasgow South West that the unions want to have a high turnout and that they want to be able to have as much confidence as possible among their members, because of the fact they cannot sanction members for not taking part in the industrial action as agreed. It is important to look at the German example, because statutory thresholds, as proposed by the UK Government, would actually be unconstitutional in Germany. We heard about international comparisons in the oral evidence, and the Bill, in so many respects—this is yet another one—puts us in a very serious place in terms of the international league of whether these measures restrict or infringe on long-established rights. Therefore, we will oppose the clause, because we think it is ill thought out, partisan, open to serious legal challenge, breaches the devolution settlement and will not do anything to better industrial relations.
Amendment 4 is a probing amendment that provides that the 40% threshold should only apply to those who are normally engaged “solely” in the provision of important public services or ancillary activities. We need to discuss this very important issue, and I hope that the Minister can enlighten us on it. The amendment is designed to highlight the problems that unions will face when trying to determine whether the 40% threshold applies. It is not clear whether individuals who spend only part of their time providing important public services will be covered by the 40% yes vote requirement.
Let us take, for example, education unions planning to ballot staff in a school with a sixth form, where they might be involved in the provision of education to young people of different ages. Trade union officials will find it very difficult to assess whether staff who teach both pupils aged under 17 and those in years 12 and 13 are “normally engaged” in providing “important public services”. That will be particularly problematic where teachers’ work schedules vary during the academic year. It is just one of the many implementation problems that I do not think the Government can have seriously thought through if they intend to proceed with the Bill as drafted.
Amendment 5 is also designed to encourage debate. It provides that the 40% yes vote requirement should apply to those employed in the provision of “essential public services” rather than “important public services”. As I have said, the Government’s proposed restrictions extend well beyond the definition of “essential services” recognised by the ILO. The Government claim that the proposed thresholds are justifiable because they do not introduce a complete ban—some would beg to differ—on the right to strike in “important public services”. They therefore argue that the ILO standards do not apply.
However, the Employment Lawyers Association warned the Government against introducing thresholds to services not covered by the ILO definition of “essential services” in its response to the BIS consultation on balloting thresholds. The response continued:
“ELA cautions that if the provisions”— in the Bill and any accompanying regulations—
“are not drawn as narrowly as possible then the Government runs the risk of a challenge on the basis that the imposition of the raised thresholds infringes Article 11 of the European Convention on Human Rights. Any restrictions on the right to strike must not be greater than necessary to pursue a legitimate aim and…necessary in a democratic society.”
That is why it is important that we look at the ILO definition. It is very tightly defined, referring to public safety and so on. It is very clearly defined in terms of where things would be problematic. The Government are going well beyond that boundary. The ILO has criticised Governments who have introduced thresholds for industrial action ballots. The ILO committee on freedom of association has concluded:
“The requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises.”
The ILO has called on Governments who have imposed statutory thresholds to amend their national laws to bring them into closer conformity with the principles of freedom of association. Dare I make some international comparisons? The countries that it has gone after include Bulgaria, Honduras and Nigeria. Does this country really want to be in that territory? Not only are we going well beyond what a near neighbour in the EU—Germany—believes would be unconstitutional, but we will be putting ourselves in the league of countries that are being criticised by the ILO, such as Bulgaria, Honduras and Nigeria. That simply is not good enough.
I come now to amendment 6. The 40% yes vote requirement will apply not only to individuals directly involved in the delivery of important public services, but to individuals normally engaged in
“activities that are ancillary to the provision of important public services.”
As a result, hundreds of thousands of union members working in large parts of the private services sector are likely to be caught by the 40% threshold. The amendment would therefore delete the reference to ancillary activities. Again, it will be very hard to define and identify who is involved in such activities. The Government are clearly trying to apply the provision as widely as possible and certainly well beyond what the ILO would expect.
Further to amendment 5, amendment 9 would define essential public services in line with the ILO definition. We want the wording to mean
“services the interruption of which would endanger the life, personal safety or health of the whole or part of the population”.
We have some very serious issues for the Minister to explain. He needs to explain how these passages will be implemented. When we look at international legal comparisons, the potential impact of the measure, the breach that I referred to and the risk of legal challenge, we are experiencing many of the same challenges as we discussed under the last clause, and I hope that the Minister can explain his position.
We have heard numerous submissions in evidence to the Committee, both oral and in writing, that the Government’s definition of “important public services” is at odds with the definition of essential services used in international law, but if we go outside the legal technicality of this broad definition, there are many practical considerations to assess when it comes to important public services and I do not see that the Government have put any thought into those practicalities on the basis of the Bill as drafted.
First, knowing who is deemed to be an important public servant is not as easy as it may seem. The neat categories defined by the Bill might look simple on paper, but they are far less clear in practice and in workplaces up and down the country. My hon. Friend gave us an example about education establishments covering people who are under 16 and those who are over 16. How will that work in practice? How will this legislation work in a sixth-form college with a mix of students, where a teacher could be teaching at a number of levels and with different age groups?
The situation is further muddied by the order-making powers contained within these clauses, which mean that when we come to vote we still will not know what specific roles in each of the six sectors that are in the clause are covered. We are told that the 40% double threshold will apply to private companies supplying public services. It is ironic that the Government have been so desperate to reduce the public sector and outsource these services to private companies so that shareholders can profit, yet when it comes to a trade union dispute, the Government are desperate to bring them back into the public sector setting so that they can impose the double threshold on them. Will the provisions apply to private sector companies that provide goods and services to so-called important public services as ancillary services? Can the Minister tell us whether, for example, private sector commercial provision of school meals to state schools would be caught by clause 3?
Nuclear decommissioning has been included in the Bill, yet this is a heavily unionised sector with a history of excellent industrial relations. Its inclusion seems excessive and counterproductive. There was a suggestion in the consultation published by the Department for Business, Innovation and Skills that management, cleaning and other support services would be included within the definition of important public services, because without them there could be an adverse impact on service provision. It is clear that there is potential within those order-making powers to allow more and more roles within these sectors to be deemed as “important” and therefore subject to the double threshold. We will end up with threshold creep.
Given everything that we have heard today and in the evidence sessions last week, it bears repeating that it is not legitimate—Amnesty and Liberty witnesses confirmed this—to restrict a fundamental right because it may inconvenience the public or businesses. Of course, no-one wants that to happen, but on every measure we have seen the public support the basic right to strike as a last resort, and these measures make that much more difficult for a large body of working people.
Finally, the logistical and organisational difficulties, alongside the potential for increased costs that this measure presents to trade unions that want to ballot their members, are significant. The industrial landscape after the Bill will mean that some sectors in the same trade union will have different rules applied to them. In some large disputes, unions may simultaneously need to ballot members in “important” and, for want of a better term, “less important” services around exactly the same issues. With the powers that the Government are awarding themselves, who is “important” within those defined sectors could change from ballot to ballot. Have the Government thought about these practicalities? This is all alongside the newly empowered and defined certification officer, who will have new resources to seek out and penalise unions for any mistake around balloting and then charge them for the luxury of that investigation.
The Bill in its entirety introduces swathes of red tape for trade unions and this definition is a key factor in that red tape. Far from simplifying or modernising industrial relations, the Bill will frustrate and complicate them. The clause will create a mess. Perhaps the Minister can tell us whether those who will have to clean up after it will be defined as ancillary services and subject to a double threshold too.
It is a pleasure to serve under your chairmanship once again, Sir Alan. I want to speak in support of the amendments in the names of my right hon. and hon. Friends concerning the differences between “essential” and “important” public services. I totally agree with the comments from my hon. Friend, who has outlined the problems very clearly.
As written, these clauses unworkable in practice. Everything I have said so far in this Committee has been about the practicalities of the Bill and that is really where I want to start today, but before doing that, I want to talk about the definition of essential public services. It is a well established, well trodden path: everybody understands what it is. The Conservative manifesto and Her Majesty’s Gracious Speech both talked about essential public services. During our consideration of the previous group of amendments, the Minister said, “Of course, we respect the mandate of the commitments made in manifestos.” If that is what he believes, this flies in the face of it and is an absolute contradiction, so I would like to hear his comments on that matter.
The TUC is a representative body of 52 trade unions, most of which are not affiliated to a political party, representing almost 6 million people—the TUC expresses the views of a substantial body of people. On pages 2 and 3 of its written evidence, the TUC mentions that the Employment Lawyers Association
“has warned the government against introducing thresholds to services not covered by the ILO definition of ‘essential services’.”
“The TUC is concerned that the Bill does not define ‘important public services’. Instead the government plans to specify which workers will be covered by 40 per cent threshold in regulations. MPs will therefore have limited opportunity to scrutinise and amend new legislation which restricts the democratic rights of millions of UK workers.”
In oral evidence, Dave Prentis, the general secretary of the largest public sector union, Unison, talked about life and limb cover; but in their oral evidence some of the people who support the Bill did not seem to understand either what life and limb cover is or that it even exists. Dave Prentis’s evidence is highly pertinent. Once again, I feel that the Government are heading blindly into legal action. Recklessly changing the definition will cause major problems and ultimately could restrict, by the back door, the right of workers in the private sector to take what I regard as legitimate strike or industrial action.
The public sector has changed out of all recognition over the past 20 years. It now has substantial organisations, whether in local government, the national health service or other areas. There is a melange of different constructs, whether they are outsourced by contracts, let by bidding, that contain clauses with which some of this legislation might clash, or whether they are in arm’s length management organisations. Will people in cleaning services, for example, be deemed as essential or important, or will they be deemed as not important? Different cleaning services in a hospital might be treated differently. Someone who cleans a reception area might be treated differently from someone who cleans operating theatres. All of those things will come into the mix at every stage of every different industrial dispute. The cost implications have not been thought through.
It would be much safer, and would practically avoid the risk of litigation, if we stuck to the term “essential public services.” The Conservative Government have a mandate for that from their manifesto commitment and from Her Majesty’s Gracious Speech. The term is well defined, unlike the alternative in the Bill, which will be incredibly difficult for MPs to scrutinise and will restrict the right of many people to take industrial action. Almost inevitably, the result will be litigation, which will cost taxpayers money. Every time the Government go to court when they have not thought proposals through—we saw many instances in the previous Parliament, particularly in the energy sector, where the Government lost cases—the cost of that litigation returns to the taxpayers, who fund Government court cases. I urge the Government to consider these proposals carefully. Although we disagree with the Bill’s substance, these amendments would at least make the clause workable. Also, I look forward to hearing the Minister’s comments on his party’s manifesto.
I thank hon. Members for their contributions. The amendments strike at the very heart of the Government’s objective in introducing a 40% threshold for strikes in important public services. I remind the Committee why we are introducing this measure. Nowhere is the impact of strike action more severe than when it takes place in important public services. The reason for that, and it is a thread that runs through all of the sectors listed as important public services, is that broadly—I accept it is not the case in every single detail—each of those services, as public services, operates as a monopoly in the lives of those who rely on it as users. That is not to say that, in time, people cannot put their children into a different school, secure an appointment with a consultant in a hospital trust outside the area in which they live, or find other ways to make the journey that they do every single morning and evening to and from work. It does mean, however, that when strikes happen, it is impossible for the vast majority of the British public who rely on those services to secure that alternative provision within public services. It goes without saying that the Border Force is itself a public monopoly—quite rightly so—and although nuclear decommissioning may involve contractors, thankfully we do not have competing nuclear commissioning regimes.
Where people and businesses rely on the services every day and where they have no choice of an alternative service provider, we believe that those services represent the important service sectors where the additional requirement of the 40% threshold is justified. That threshold ensures that strikes affecting services in those sectors can go ahead only when a reasonable level of support has been secured by the trade union. We are not banning strikes; the legislation is about making sure that enough members support the proposed action before it can go ahead.
The six sectors set out in the Bill as being subject to the 40% threshold have been chosen precisely because they are those where strike action has the potential to have the most far-reaching consequences for a significant number of people. Opposition Members discussed the difference between important services versus essential services. They are right that the ILO defines “essential services” and that that is an accepted definition, but it does so for the purposes of making it clear that it is therefore allowable to prohibit the right to strike in those services. The right to strike can be entirely prohibited in the sectors that the ILO has deemed to be essential, which include some but not all of the same sectors that we have listed—for example, firefighting services, the hospital sector, air traffic control, public or private prison services, electricity services, water supply services and telephone services.
No, not at the moment. I will make my argument, and then I will be happy to take as many interventions as hon. Members wish to make.
Because of the ILO's definition of essential public services as those where it is permissible to prohibit the right to strike we decided to clarify that clause 3 proposes not a prohibition or a strike ban but simply a threshold of support for a strike. That was intended to clarify that the services listed are not the same as those covered in ILO definition, but are important public services. To be clear, our manifesto named the four most important of those services to which clause 3 applies. We have an absolute manifesto mandate for the inclusion of fire, health, education and transport services. Since then, based on cross-government consultation, we have added border security and nuclear decommissioning. If Opposition Members want to argue that those two sectors are not important public services on which the public have good reason to rely, they are welcome to have a go. I accept that the sectors were not listed in our manifesto, but I feel pretty sure of what the public’s view will be of whether they should be included in the definition of “important public services”.
We will identify the people to whom the provisions will apply within the sectors in the regulations, and we have consulted properly on that. I suspect that Opposition Members would criticise us if we had just written in the Bill a precise breakdown of groups of employees within those sectors to whom the provision will apply without having consulted. We have consulted, and we received many responses. We will make clear proposals for who we expect to be covered by the provision before the Bill achieves Royal Assent.
I have consistently made it clear that it will be before the Bill receives Royal Assent. I cannot give the hon. Lady the precise timing. We do not know the precise timing of the Bill’s further parliamentary stages, because that is not entirely within our gift, but the regulations will come forward before the Bill receives Royal Assent.
The Minister has given a very convoluted explanation of why the wording was changed from “essential” to “important” public services, which does not bear scrutiny. Was it because he was worried that if he used the phrase “essential services”, it would be subject to legal challenge? On the point that my hon. Friend the Member for Cardiff Central has just made, will the Minister commit to publishing the regulations before the Bill leaves the Commons and goes to the other place? It is important that the public see them.
It is always interesting to describe an argument one disagrees with as “convoluted”. My argument was not convoluted; the hon. Gentleman just disagrees with it. His argument was not convoluted either; I just disagree with him. I have made clear when the regulations will be brought forward—before Royal Assent—and I do not think I need to say any more than that.
I turn to amendment 4. In the modern economy, many people work in roles that encompass several different tasks and responsibilities, so it is likely that some workers who contribute to the delivery of important public services do not do so for 100% of their time. None the less, if such workers were absent during strike action, their absence would undermine the service. For example, a deputy headteacher might teach for only part of their time, spending the rest of the time on planning and management. That is why the Government propose to include all those “normally engaged” in important public services within the scope of the 40% threshold. We believe that that phrase is easy to understand and correctly encompasses those whose absence would adversely impact the public service.
On amendment 6, we have included so-called ancillary workers in the scope of the 40% threshold because they are often central to the operation of the important public services cited. For example, while hospital cleaners and rescue centre call staff are not front-line surgeons or firefighters, their work is critical to ensuring that front-line staff can deliver the service. Their absence can make the difference between the ability to run a service and it shutting down during the period of strike.
As I said, the Government consulted on these issues over the summer, and we are currently analysing the responses. That will help us in preparing the regulations, and I will take all views into account as we develop the secondary legislation to implement the detail of the threshold. For those reasons, I ask the hon. Gentleman to withdraw amendment 4.
Although the Minister gave his explanation in funny terms, I find it unbelievable, quite frankly. It is a very convoluted reasoning. The reality is that the ILO defines essential services in a very restrictive way because the international legal consensus, and indeed the international human rights consensus, is that the right to strike and to freedom of association should be restricted only in very narrow cases. That is why it is a tight definition. It is intriguing that the Government have chosen to move away from that. They clearly want to expand the restrictions much more widely. I have already given the example of Germany, where such provisions would be unconstitutional.
I must take issue with the Minister’s unwillingness to give us a commitment on the publication of the regulations. He said that there was a consultation. Like all consultations on the Bill, it took only eight weeks rather than the usual 12. All the consultations were done over the summer to frustrate the input from sectors such as teaching, as many of the profession’s union members are away from school at that time. It is an odd situation, and a serious one for Parliament, that we are discussing severe restrictions on the exercise of people’s democratic rights, yet the Minister is saying, “Trust me. We’ll publish them. They’ll be all right. It’ll be fine.” The regulations should have been published alongside the Bill so that we could see what the Government intend. Is the Minister going to publish them 20 minutes before the Bill gets Royal Assent, if we ever get that far? That is simply not good enough, and I would like the Minister to consider publishing the draft regulations. We need to get some clearer intent before the Bill leaves the Commons, and certainly before it gets into the other place. For that reason I am keen to test the will of the Committee on amendment 5.
Is the hon. Gentleman as confused as I am? The hon. Member for Cardiff Central made a similar point about some of the services being covered under existing legislation, such as life and limb cover. I am beginning to wonder whether it is not just the Government witnesses who do not know about life and limb cover but the Government too.
In addition, does the hon. Gentleman not think that the 40% threshold is dangerous? The last time a Government introduced such a threshold they had a small majority and ended up out of power for 18 years. That might happen again.
That is an intriguing historical example. The hon. Gentleman’s point is a good one. Large parts of the legislation have not been thought through and appear to have been drafted by people who simply do not understand how trade unions operate in the modern workforce. The witnesses the Government called forward certainly did not know that. As my hon. Friends the Members for Cardiff Central and for Sunderland Central have made clear, there are serious practical implications. I would therefore like to press amendment 5 to a vote, with the clear message that we believe the Government should stick to their manifesto and to their own Queen’s Speech, and stick to the definition of essential services laid out by the ILO.
In the case of amendment 4, I beg to ask leave to withdraw the amendment.
Amendment proposed: 7, in clause 3, page 2, line 9, leave out
“were entitled to vote in the ballot”
“according to the trade union’s reasonable belief were employed by the employer in a trade dispute, and whom the union reasonably believed would be induced to take part in the industrial action,”.—(Stephen Doughty.)