Lord Hendy (Lab)

My Lords, it is now 10.22 pm, so I apologise for assaulting your Lordships’ ears with a series of amendments which also deal with the right to strike. Since time is precious, I have decided to focus on one amendment in particular and let the rest speak for themselves. I had hoped that my noble friend Lord Woodley would speak to his amendment on prison officers, but he is unavoidably not in his place. I will deal with that amendment when I get to it. I will focus on Amendment 240, which introduces six specific measures aimed at the restoration of statutory protection for secondary action. Again, I do not entertain a great deal of hope for this amendment—I am a realist—but I express my gratitude for the support of the noble Baroness, Lady Jones of Moulsecoomb, who has added her name to it; for a briefing from the British Medical Association; and for the support of unions, including ASLEF, the BMA, the Bakers, Food and Allied Workers Union, the Fire Brigades Union, the RMT and the University and College Union. Solidarity action is an inherent aspect of freedom of association and the right of workers to act for and on behalf of fellow workers, particularly fellow trade unionists. From 1906 to 1982, there was no legal distinction between solidarity action and other industrial action. The Conservative Government then introduced restrictions on certain kinds of secondary action, and in 1990 all statutory protection was withdrawn. The Labour Party strongly objected. In the parliamentary debates on the 1990 Bill, Tony Blair, then shadow Employment Minister, said in the other place: “The abolition of sympathy action is unreasonable, unjustified and way out of line with anything that happens anywhere else”. In relation to the proposal that all forms of sympathy and secondary action were to be forbidden, he said: “That proposition is so manifestly unfair and unreasonable … that it is fatal to any pretence of even-handedness in the Bill”. Compliance with international law is a duty incumbent on the state. Lord Bingham’s eighth principle of the rule of law is the obligation of the state and Ministers to comply with their international treaty obligations. In this House, last November, the noble and learned Lord the Attorney-General said of compliance with international law that: “We should all be immensely proud of it, and this Government will seek at every turn to comply with our obligations”.—[Official Report, 26/11/24; col. 680.] He developed the theme in a lecture to the Royal United Service Institute on 29 May this year in which he rejected “cherry picking” among international obligations. He continued, “The argument … that the UK can breach its international obligations when it is in the national interest to do so, is a radical departure from the UK’s constitutional tradition, which has long been that ministers are under a duty to comply with international law … states can leave the treaties they have signed and agreed on. But the integrity and force of the system requires that once a party, to an agreement, they abide by its rules — they don’t pick and mix”. It will be recalled that the Labour Party in 2021 adopted a Green Paper, Labour’s New Deal for Working People. It was integrated into Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People. It was explicitly referred to in the election manifesto and in the King’s Speech. The paper said: “The laws regulating industrial action should ensure that UK law complies in every respect with the international obligations ratified by the UK, including those of the International Labour Organization and the European Social Charter, as reiterated in the Trade and Cooperation Agreement with the European Union”. The UK has ratified ILO Convention 87, which protects the right to strike. Since 1989, the ILO committee of expert jurists has reviewed the UK’s legislative restrictions on secondary action and held them in violation of ILO Convention 87. The committee held that secondary action should be permitted in three situations. First, where it relates directly to the social and economic interests of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves. Secondly, in any event, a general prohibition of sympathy strikes could lead to abuse, and workers should be able to take such action, provided the initial strike they are supporting is itself lawful. And thirdly, furthermore, the restriction to disputes only between workers and their own employer “could make it impossible for unions to take effective action in situations where the ‘real’ employer with whom they were in dispute was able to take refuge behind one or more subsidiary companies who were technically the ‘employer’ of the workers concerned, but who lacked the capacity to take decisions which are capable of satisfactorily resolving the dispute”. That condemnation in 1989 has been repeated many times in the Committee of Experts’ observations on the United Kingdom, including in 1995, 1999, 2001, 2003, 2007, 2009, 2011 and 2013. The other ILO committee, the tripartite Committee on Freedom of Association, has also condemned the UK in this regard, holding that: “a ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association, the Committee once again requests the Government to take the necessary measures to ensure that sympathy strikes, as well as social and economic protest action, are protected under the law”. In November 2023, that committee reviewed the P&O Ferries scandal, and among other things, held that: “At the outset, the Committee recalls that a general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful … The Committee recalls that it had previously requested the UK Government to take the necessary measures to ensure that sympathy strikes were protected under the law … The Committee requests the Government to engage with the social partners to overcome challenges regarding the legislative prohibition on sympathy strikes, in conformity with freedom of association”. The request was ignored.