Lord Johnson of Lainston:

Moved by Lord Johnson of Lainston

That the draft Code of Practice laid before the House on 13 November be approved.

Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

My Lords, I beg to move that the draft Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels), as laid before the House on 13 November 2023, be approved. This code of practice, which I will refer to as the code for the remainder of this debate, provides important clarity on how trade unions can meet the legal requirement in the Trade Union and Labour Relations (Consolidation) Act 1992, as amended by the Strikes (Minimum Service Levels) Act 2023.

As noble Lords are aware, the 2023 Act enables regulations to be made specifying minimum service levels and the services they apply to. Where minimum service level regulations are in force, if a trade union gives the employer notice of a strike action, the employer can issue a work notice to the trade union ahead of the strike identifying the persons who are required to work and the work they are required to carry out to secure the minimum service level for that strike period. Trade unions should then take reasonable steps to ensure that their members who are identified in a work notice comply with that notice and do not take strike action during the periods in which they are required by the work notice to work.

During the passage of the Strikes (Minimum Service Levels) Bill, the Government committed to bringing forward a statutory code of practice to provide more detail on the reasonable steps that trade unions should take. In accordance with the 1992 Act, the Secretary of State consulted with ACAS on the draft statutory code and, on 25 August, published a draft code, enabling trade unions, employers and other interested parties to contribute their views. Careful consideration was given to those views and, as a result, important changes were made to the draft code. An updated draft code was laid in Parliament on 13 November.

Alongside the code, we have supplemented the more detailed provisions of the Act on work notices by publishing non-statutory guidance for employers—that is important—setting out the steps for employers to take. These include engaging with trade unions and workers when developing the process, consulting with the trade unions on the numbers required to work and the work they must do, and having regard to their views before issuing the work notice and notifying the workers.

The code before the House today sets out four reasonable steps that trade unions should take to meet the legal requirement under Section 234E of the 1992 Act. Although the code itself does not impose legal obligations, it is admissible in evidence and taken into account where a court or tribunal considers it relevant.

First, trade unions should identify workers who are its members in a work notice. Secondly, trade unions should send an individual communication, known as a compliance notice, to each member identified in a work notice to advise them not to strike during the periods in which they are required by the work notice to work as well as to encourage them to comply with the work notice. Thirdly, trade unions should instruct picket supervisors to use reasonable endeavours to ensure that picketers avoid, so far as is reasonably practicable, trying to persuade members who are identified in the work notice not to cross the picket line at times when they are required by the work notice to work. Finally, once a work notice is received by the union, trade unions should ensure that they do not do other things that undermine the steps they take to meet the reasonable steps requirement.

It is worth noting that the code being debated today reflects much of the feedback that we received in the consultation on the earlier draft. For example, the updated code no longer includes a step requiring trade unions to communicate with their wider membership who are called to strike. The Government have changed the language so that it no longer requires those on the picket line to encourage individuals identified in a work notice to attend work. Instead, it now makes clear that those on the picket should simply refrain from encouraging those identified on a work notice to strike where they are aware that this is the case.

Having explained the background to the code, I will now turn to the fatal and regret amendments that have been laid on this code by the noble Lord, Lord Collins of Highbury, and the noble Baroness, Lady Bennett of Manor Castle. I will start with the fatal amendment, much of the content of which was more properly for debate during the passage of the Bill. I have no intention of re-running the debates on the Act which Parliament passed earlier this year, but I do want to remind noble Lords of why it was brought forward.

The Government firmly believe that the ability to strike is an important part of industrial relations in the UK, but this must be proportionate. Over the past year, there has been significant disruption, with massive impacts on the public. Since August 2022, 4.5 million days have been lost due to labour disputes. As a result, people have been unable to access key services that they rely on. For example, 1.1 million appointments have been rescheduled by acute NHS trusts due to strike action, and nearly one in five people reported having their travel plans disrupted by rail strikes. When you start adding on the impact of strikes in schools and other key areas it becomes clear why the Government had to take action.

It is, of course, this legislation and not the code, which is often discussed, that introduced the requirement for trade unions to take reasonable steps. During the passage of the Bill, noble Lords on the Benches opposite repeatedly criticised the fact that trade unions would not, without further guidance, know what this means in practice. Indeed, both the TUC and the Joint Committee on Human Rights asked for greater clarity on what the Government considered this to mean. This is exactly what this code provides. It should help not only to avoid expensive litigation by giving unions clarity on their obligation but to protect them from the very liabilities that the noble Baroness raises in her fatal amendment. Without the code, the duty on trade unions still exists, but there is much greater uncertainty for trade unions over what it means.

Additionally, I reiterate the points made by the Government during the passage of the Bill that we are confident that the Strikes (Minimum Service Levels) Act is compatible with our international obligations, including the European Convention on Human Rights, and that minimum service levels can be a proportionate means of achieving the balance between the ability of workers to strike and the rights of the public to access certain services. Minimum service levels do not remove the ability of strikes to take place. They simply seek to ensure that there is a balance between the ability to strike with the rights and freedoms of the public. This code, by providing much greater legal clarity for trade unions, further supports compliance with Article 11. As set out during the passage of the Bill, most major European countries, including France, Spain and Italy, have had a minimum service level regime in place for many years. Even the ILO recognises that they can be an appropriate mechanism to balance the rights of the public with unions and their members.

I call on all noble Lords to reject the regret amendment that has been tabled by the noble Lord, Lord Collins. We are confident that the draft code is within the scope of the 1992 Act as amended by the Strikes (Minimum Service Levels) Act 2023. Section 234E and amended Section 219 are clear that a union that fails to take reasonable steps to ensure that all members identified in the work notice comply with the notice will lose its protection from certain liabilities in tort. The Government therefore consider that a code of practice that sets out the reasonable steps a union should take is within the scope of the Act. Furthermore, Section 203 of the 1992 Act provides that the Secretary of State may issue a code of practice containing such practical guidance as he or she thinks fit for the purpose of promoting the improvement of industrial relations.

I want to respond to a point raised by the Secondary Legislation Scrutiny Committee regarding the time until implementation and to thank it for its considerations and its report on the code. The Government believe that there is sufficient time for employers and unions to get to grips with the practical implementation of the strikes Act. Trade unions and other stakeholders were consulted on the draft code in August and have been able to see the updated code since it was laid in Parliament on 13 November. They have therefore had sufficient notice of the contents of the code and sufficient time to prepare before it is expected to come into effect. Delaying commencement of the code would delay minimum service levels being implemented, meaning that strikes could continue to have disproportionate and harmful impacts on the lives and livelihoods of the general public for longer.

The code under consideration in the Chamber today has been designed to address the concerns raised in this House and the repeated requests for clarity by providing assurance for trade unions on the reasonable streps that they should take. If this code is approved by Parliament, it will be issued and brought into effect by the Secretary of State in accordance with the procedure set out in Section 204 of the 1992 Act. The Government’s intention is for the code to be in effect before regulations implementing minimum service levels come into force. To achieve this, the Government are planning for the code to come into effect very shortly after the commencement order relating to it is laid. I hope that your Lordships will support this code. I beg to move.

My Lords, this House, by quite large majorities, gave the elected Chamber the opportunity to think again on this legislation—and, unusually, more than once. The reason, quite simply, is that no one really knows what this law will mean. Trade unions do not know what reasonable steps they will need to take to protect the right to strike. Even Ministers —and I am glad to see the noble Lord, Lord Callanan, in the Chamber—could not make up their mind on what it means. Kevin Hollinrake, the Minister, told the Commons on 22 May 2023:

“The reality is that nobody will be sacked as a result of the legislation”.—[Official Report, Commons, 22/5/23; col. 103.]

That is what he told the elected Chamber. However, the noble Lord, Lord Callanan, told this House that workers who receive a work notice will lose protection from dismissal. The code states that the compliance notice should contain a comment stating that the two notices should be received from the employer and that if the member receives both, they

“must carry out the work during the strike or could be subject to disciplinary proceedings which could include dismissal”.

The Minister talked of minimum service levels in Europe. Nobody is against minimum service levels; when it comes to life and limb, they are essential. But in every European country, they work and are applied because they are determined by voluntary agreement. People consent and co-operate; as soon as you remove that consent, you are in trouble. That is why so many employers are so against what the Government are proposing.

We remain very clear in our view that the Strikes (Minimum Service Levels) Act is fundamentally unworkable and places undue limitations on an individual’s freedom of association. Let me be very clear to the noble Baroness, Lady Bennett of Manor Castle; the only democratic way to get rid of this bad legislation is to campaign for a Labour Government. We have promised to repeal this legislation when we get into government, and we stand by that pledge. I am sure the noble Baroness will agree that the implementation of that pledge should not be frustrated by an unelected Chamber.

As the noble Lord, Lord Callanan, knows very well, it was only late in the day that the Government committed to a statutory code of practice. That was because this House scrutinised that legislation and pushed this Government into trying to make it clearer what the reasonable steps should be for a trade union. It was this House that resulted in that change, and I am glad the Government heard and responded.

Of course, as the noble Lord said, following consultation, the Government did make some changes to the draft code; they have removed the requirements to communicate with the wider membership, as he says, and the duty on a picket supervisor has changed from a positive one to attend work to a negative one of ensuring that picketers avoid trying to persuade members on a work notice not to work.

However, the code imposes significant new duties on trade unions well beyond the scope of the Act, rather than simply providing guidance about the law. It also places trade unions in the position of policing members on behalf of an employer, acting with the authority of the state. The code contains nine—I repeat, nine—separate pieces of information that unions should include in a compliance notice, with those named in the work notice clearly and conspicuously.

The fact is that the code fails miserably to explain the legal issues with necessary accuracy. It states that unions are advised to tell members that they should receive from the employer a statement that the member is an identified worker who must comply with the notice given to the union. But, as the noble Lord said, there is no obligation under the Act for an employer to communicate with the workers named in the work notice. They need do so only if they want to keep open the option of dismissing them for not attending work.

What we do know—I will be very brief on this point—is that the slightest transgression in an industrial action ballot can lead to some employers seeking injunctions, even though the practical effect of that transgression is nil, so there is a concern that any deviation from the template contained in the code will invite legal challenges from some employers. As the TUC said in its excellent briefing, that would almost certainly lead some employers to seek to legally challenge unions. I hope the Minister will respond to that. Does he agree with that point of view? Does he think that such satellite litigation will aid the resolution of industrial disputes? Can he really explain the rationale for including a pro forma template on top of the guidance contained in paragraph 26?

Unfortunately, and sadly, that is not the only way in which the code could instigate a legal challenge. There are plenty of areas in the code that appear to allow for challenges, and that is something that we really need to think about. It comes back to the Minister’s original point on Report, which was that it will be for the courts to decide what is a reasonable step. Everyone in this House thought, “That isn’t really appropriate. Is that going to lead to the settlement of disputes? Clearly not”.

One of the letters that the Secretary of State has had was from the Joint Committee on Human Rights. I hope the Minister will address its letter of 24 November today. It raised a number of issues on the code, stating that it

“does nothing to reduce the impact of minimum service levels imposed through Regulations on trade unions, requiring them to actively encourage their own members to break their own strike”.

I hope the Minister will address today the four specific questions posed to the Secretary of State on the impact on Article 11 workers’ rights of these regulations.

The fact is that, as my amendment states, the code and the associated regulations will exacerbate conflict in the workplace. The code contains so much uncertainty that we are sure to see more legal action, which I am confident will entrench and prolong disputes, thereby causing more harm to workers, employers and, just as importantly, the public.