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.
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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.