Hansard Report: Lord John Hendy (Lab) on the Queens Speech – Employment Rights, January 9th 2020

Lord John Hendy QC

My Lords, I will make two points on the proposed employment Bill and three on the proposed restrictions on the right to strike on the railways. I declare an interest as having spent 40 years in practice at the Bar, doing many cases for trade unions and their members.

First, the employment Bill is said to “protect and enhance workers’ rights as the UK leaves the EU, making Britain the best place in the world to work”, a phrase repeated by the Minister in opening this debate. Will the employment Bill guarantee full non-regression of existing EU-derived workers’ rights and dynamic alignment with any future improvements to EU workers’ rights? I understood that was the Conservative Party’s position in the recent election; its manifesto states that the UK’s future relationship with the EU will “Raise standards in areas like workers’ rights”.

If either protection is denied to Britain’s 32.7 million workers then, by definition, they will enjoy fewer rights in the future than their European counterparts. That will refute the promise to make Britain the best place in the world to work and make clear the nature of the Government’s commitment to those working-class voters who lent them their votes in the last election.

Secondly, there is the Oliver Twist clause. The employment Bill proposes to introduce a right “for all workers to request a more predictable contract”.

While a right to make a request might have afforded Oliver Twist some comfort in the workhouse, it will be purely rhetorical in the modern workplace. What is  ​required here is a correlative duty on the part of the employer to concede the more predictable contract sought, so far as is reasonably practicable. If there is no agreement, the matter must be determined by an employment tribunal. I trust that the proposed Bill will contain such a provision to give some content to an otherwise empty right.

What is more remarkable about this Oliver Twist provision is the glaring omission of any reference to the EU directive on transparent and predictable working conditions which came into effect last summer. The directive is precisely on point, yet mention of it is omitted. Why? Can it be that the Government have decided that, far from raising standards in areas such as workers’ rights, their intention is to deny British workers these modest EU rights even before Brexit is finalised?

I turn to the proposal to further restrict the right to strike. Only four years ago, the Trade Union Act 2016 added further obstacles to strike action in relation to “important public services”, which included passenger railway services. Yet now railway workers, successors in title to those who were penalised in the Taff Vale judgment in 1901, face yet more restrictions on their right to strike, on the footing that they are engaged in an essential public service—uniquely, it seems, since no other workers have been so designated.

I will add three points to those made by my noble friend Lord Griffiths of Burry Port this morning. First, the International Labour Organization has made it clear that railways are not an essential public service in international labour law, so it is illegitimate to restrict the right to industrial action on that ground. This proposition has recently been adopted as binding by the European Court of Human Rights in Ognevenko v Russia, which reiterated that the right to strike is protected by Article 11 of the convention in a case which concerned a ban on strikes on the Russian railways. The Government will have to think carefully whether the certificate of conformity with the convention can be given to this legislation, unless, having exited the EU, they propose to repeal the Human Rights Act and de-ratify the European convention. Is that their intention?

Secondly, the proposal is for a minimum service agreement to establish what is required. How do the Government envisage such agreement being reached? In circumstances where the union and the employer have failed to agree the underlying industrial dispute, what chance is there of agreeing a minimum service provision during a strike? Will the Government specify a disputes procedure—perhaps concluding in binding arbitration—if the parties fail to agree the minimum service agreement? If the Government believe that the parties can be induced to reach a minimum service agreement, why not provide such an inducement to resolve the industrial dispute?

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