My Lords, maintaining services at our borders is essential to our security and prosperity as a nation. We depend on skilled professionals to ensure that, 24 hours a day, 365 days a year, our borders are strong and effective. The Government assess that, in the event of strike action by those charged with securing our borders, there are significant risks to the safety of our communities. Criminals may seek to take advantage of strike action to enter our country or to move illicit commodities through our ports and airports. People smugglers may seek to exploit gaps in our patrol activity to land illegal migrants on our shores.
We are focused on making the hard but necessary long-term decisions to deliver the change the country needs to put the United Kingdom on the right path for the future. It is for this reason that the Government have decided to include border security within the scope of the Strikes (Minimum Service Levels) Act 2023. These new regulations have two purposes: to make provision for minimum service levels in relation to strikes as respect to relevant border security services and to define those relevant border security services.
The regulations set out that border security should be provided at a level that means they are no less effective than if a strike were not taking place. The regulations also set out that passport services as are necessary in the interests of national security are provided as they would be if the strike were not taking place on that day. The relevant border services that must be provided are now defined as
“the examination of persons arriving in or leaving the UK; the examination of goods imported to or exported from the UK; the examination of goods entered for exportation or brought to any place in the UK for exportation; the patrol of … ports … the sea and other waters within the seaward limits of the territorial sea adjacent to the UK; the collection and dissemination of intelligence for these purposes; the direction and control of”
those engaged in providing those services; and such passport services as may be necessary for national security reasons.
As the employer for Border Force and HM Passport Office, it will be the Home Office that issues work notices to trade unions during strike action. A work notice is, to recap, a notice given in writing that identifies the members of the workforce who are required to work on a strike day and the work they are required to do to deliver the levels of service as set out in the minimum service regulations. It is important to note that the Act forbids an employer, when setting a work
notice, from having regard to whether an employee is a member of a trade union or has taken part in trade union activities or used their services in the past. The trade union must then take reasonable steps to ensure that members of theirs who have been identified in a work notice do not take strike action. If the union fails to take reasonable steps, it may lose its legal protection from damages, claims and injunctions. I will return to that at the end of my speech.
The regulations stipulate that border security services can be provided only by employees of the Home Office, which will mean those who already provide border security services or the relevant passport services required in the interests of national security. This means that we will no longer need to rely on outside resource to provide cover. In the past, we have used other civil servants working elsewhere and members of the Armed Forces. We acknowledge and appreciate the efforts of those who have provided cover previously, but this cannot be a long-term solution.
We recognise that restricting the ability to strike, even in the way we are proposing, means that we need to ensure that compensatory measures are in place. The Government are therefore committing that they will agree to engage in conciliation for national disputes in relation to border security, where the relevant unions agree that this would be helpful. This is a significant and appropriate commitment that balances the ability of workers to strike with the safeguarding of our borders.
I note the amendment tabled by the noble Lord, Lord Coaker. I respectfully say that we have responded to the recommendations of the Delegated Powers and Regulatory Reform Committee. Its 27th Report of Session 2022-23, which was published on 2 March 2023, made two recommendations on what became the Strikes (Minimum Services Levels) Act. The first was that
“the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels … is likely to be exercised”.
The second was that
“the House may wish to press the Minister to provide an explanation of how the power to define ‘relevant services’ … is likely to be exercised”.
I respectfully submit that both recommendations have now been addressed through the regulations and in this debate.
I also respectfully disagree that the regulations are too prohibitive. This brings me to the Motion tabled by the noble Baroness, Lady Bennett, and to the findings of the Secondary Legislation Scrutiny Committee in its 3rd Report of the Session 2023-24, published on 23 November 2023. As I have set out, we are bringing forward these regulations to establish a fair balance between the ability to strike and enabling people to go about their daily life in the confidence that on a strike day our borders will still be secure.
Our recent experience of industrial action saw staffing levels of around 70% to 75% being delivered by Border Force. This enabled Border Force to carry out the essential functions listed in the regulations. Our estimate of the impact on HM Passport Office is that around a dozen or so personnel may be required to work. We none
the less recognise that these new measures may mean that members of staff may not be able to strike. It is for that reason that we have made a commitment regarding conciliation, and I think this commitment is significant.
Turning to the question of trade unions’ liabilities, I would simply say that unions that continue to comply with trade union law are completely unaffected by this change, and therefore the issue of liability will not arise.
I call on Members of your Lordships’ House to reject the amendment tabled by the noble Lord, Lord Coaker, and the Motion tabled by the noble Baroness, Lady Bennett. I beg to move.