Lord Hendy (Lab)

I apologise to noble Lords for inflicting my voice on them again. The amendments in this group are intended to convert the ASCNB into a collective bargaining forum and achieve the purpose we have already discussed for the SSSNB. I mentioned earlier that there is some relevant international law. I propose now to deal with it. The UK is bound by the international treaty provisions it has ratified. That applies no matter the subject matter of the treaty obligation—whether it be trade, security, environment, labour, extradition or whatever. The obligation of conformity is not confined to the black letter of the treaty provision. It applies also to the decisions of the bodies on which the treaty has constitutionally bestowed the power of deciding whether or not a state is in compliance. If a state does not like the treaty provisions or decisions made under it, it has the right to denounce the treaty and cease to be bound by it. The great jurist Lord Bingham made state compliance with international obligations his eighth principle of the rule of law. He said in his seminal book on the subject that “the rule of law requires compliance by the state with its obligations in international law as in national law”. Consistently with this, the current Ministerial Code binding on British Ministers places on them an “overarching duty to comply with the law, including international law and treaty obligations”. The point was reinforced by the noble and learned Lord the Attorney-General in this House on 26 November 2024, when he said of compliance with international law: “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 point in a lecture to the Royal United Services Institute last week. The relevant international law is based on two legal instruments. The first is the ILO, which since its founding in 1919 has acknowledged collective bargaining as an instrument of social justice. The 1944 ILO Declaration of Philadelphia, part of the ILO constitution, recognises the obligation to further “the effective recognition of the right of collective bargaining”. The 1998 ILO Declaration on Fundamental Principles and Rights at Work reiterates that “all Members … have an obligation … from the very fact of membership in the Organization, to respect, to promote and to realize … the principles concerning the fundamental rights”, which include the effective recognition of the right to collective bargaining. ILO Convention 98, Right to Organise and Collective Bargaining Convention, 1949, was ratified by the United Kingdom almost 75 years ago on 20 June 1950. It is one of the fundamental conventions, binding, regardless of ratification, as a consequence of membership of the ILO. Article 4 imposes the following obligation on states: “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements”. The Government were recently reminded of that obligation by the decision earlier this year of the ILO tripartite Committee on Freedom of Association, on which the UK is represented, on a complaint against the UK arising out of the Supreme Court judgment in the case of Deliveroo in 2023. The committee had previously stated in the case of the United Kingdom that “whereas governments are not under a duty to enforce collective bargaining by compulsory means, they are under a duty to encourage and promote voluntary collective bargaining in good faith between the parties”. The Bill is the opportunity to fulfil that obligation. As yet, it does not. Turning from the global to the European, I refer to the European Social Charter of 1961. Article 6, headed “The Right to Bargain Collectively”, materially provides: “With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake … to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements”. The Parliamentary Assembly of the Council of Europe, on which a number of your Lordships sit, elects a supervisory body of jurists called the European Committee of Social Rights, which regularly includes eminent UK nominees, with the purpose of examining compliance by member states with the provisions of the charter which they have voluntarily ratified. Decisions of that committee are reported to the Committee of Ministers, which includes the UK Foreign Secretary. The European Committee of Social Rights has held of the obligation of states under Article 6.2 of the charter that “if the spontaneous development of collective bargaining is not sufficient, positive measures should be taken to facilitate and encourage the conclusion of collective agreements” and that “where only 30% of the total number of employees are covered by collective agreements, voluntary negotiations are not sufficiently promoted in practice”. The level of collective bargaining coverage in the UK is now significantly below 30% but, in any event, it is clear that spontaneous development of collective bargaining is not occurring in fields that desperately need it, such as social care. The duty on the UK to promote collective bargaining, at least in these sectors, is thus triggered. The committee has also held: “States Parties should not interfere in the freedom of trade unions to decide themselves which industrial relationships they wish to regulate in collective agreements”. That is a matter to which the ILO Committee on Freedom of Association has also turned: “It is for the parties concerned to decide on the subjects for negotiation … Matters which might be subject to collective bargaining include the type of agreement to be offered to employees or the type of industrial instrument to be negotiated in the future, as well as wages, benefits and allowances, working time, annual leave, selection criteria in case of redundancy, the coverage of the collective agreement, the granting of trade union facilities, including access to the workplace beyond what is provided for in legislation etc.; these matters should not be excluded from the scope of collective bargaining by law”. Yet in the subsectors of adult social care and school support staff, this Bill proposes to violate than principle. The subject matter which the two negotiating bodies are permitted to discuss is limited to that specified in the Bill, to which the Minister may unilaterally add. Indeed, as we have already discussed in relation to school support staff, their negotiating body is not permitted to discuss even the matters within its statutory remit, unless directed or expressly permitted by the Minister. Both the social rights committee and the ILO have made it clear that self-employed workers should not be excluded from collective bargaining machinery, a matter which we discussed earlier. I also draw attention to Article 6.3 of the charter, which I did not mention earlier. It requires that “conciliation, mediation and/or arbitration procedures must be introduced to facilitate the settlement of labour disputes”. The European Social Rights Committee has held that “recourse to arbitration should be voluntary (subject to the agreement of the parties) … All arbitration systems must be independent, and the outcome of arbitration may not be predetermined by pre-established criteria. Any form of compulsory recourse to arbitration is a violation of this provision”. Yet, under this Bill, the remit open to negotiating bodies does not permit them to agree any kind of dispute resolution procedure. Quite the contrary: as we have seen, the Minister has power to override both the agreement of the industrial parties or their disagreement, and to impose an outcome on them—in my view, a wholly impermissible form of compulsory arbitration. There is no disputing that the UK permits collective bargaining. However, the duty on states ratifying this provision of the charter, as the UK did on 11 July 1962, is not merely to permit; the duty is to promote collective bargaining machinery. It is true that we have legal recognition machinery in the 1992 Act, Schedule A1. However, there is no mechanism in UK law to establish or support sectoral collective bargaining. This Bill is the opportunity to establish that in the many sectors crying out for it, including social care. I turn to my amendments in this group. Amendment 181 would allow unions and employers to choose their own chair. Amendment 182 would restrict membership to persons nominated by unions and employers. Amendment 183 would restrict third parties to those agreed by unions and employers, and to ensure that they will be in a minority. Amendment 184 would allow discussion of Section 178 matters. Amendment 186 would add training and career progression dispute resolution machinery, discipline and grievance procedures, and anything else the unions and employers want to discuss, to the list of permitted topics. Amendment 187 would broaden the definition of social care worker to that in Section 20 (3) of the Courts and Criminal Justice Act 2015. Amendment 191 would substitute, where there is failure to agree, a dispute resolution machinery in place of the unilateral power of the Minister to substitute his decision. Amendments 193, 194, 198 and 199 mirror Amendment 192 from the noble Baroness, Lady Noakes, making the output of the process a minimum floor permitting subsequent or indeed prior agreements for more beneficial terms. Amendment 197 would bring in the self-employed, so the arguments are much the same as we have already covered. As your Lordships will have noted, I also seek to oppose Clause 51 standing part. It gives power to permit the Minister to disapply Section 178 to the adult social care body. I will not repeat the arguments. I beg to move.