House of Commons
Prayers
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John McDonnell (Hayes and Harlington) (Lab)
I beg to move, That the House sit in private.
Question put forthwith (Standing Order No. 163).
Question negatived.
Lawful Industrial Action (Minor Errors) Bill
13:21 - The House divided: - Ayes: 87 / Noes: 27 -
John McDonnell (Hayes and Harlington) (Lab)
I beg to move, That the Bill be now read a Second time.
This measure is the first private Member’s Bill of the new Parliament, and several other excellent Bills, which I mainly support, are also listed for today. The previous Parliament lost the confidence of the nation as a result of the expenses scandal, but also through the way in which we dealt with our business. Private Members’ Bills were used almost as toys, and talked out when there was real legislation to be made. I hope that in the new Parliament, with so many new Members, we will treat private Members’ Bills differently—in the right manner for addressing serious issues, with proper discussion. On that basis, I urge all Members to consider matters carefully this morning and allow a Division on the Second Reading of each Bill so that the will of the House can be tested. If there are disagreements, they can be ironed out in Committee and then at our final opportunity on Report.
John McDonnell
One of the techniques for delaying Bills was intervention after intervention. I am no longer willing to participate in that charade. I will take two or three interventions, but it negates the purpose of the House if we allow interventions that simply delay proper democratic decision making.
John McDonnell
I understand the hon. Gentleman’s point. He has intervened very thoughtfully several times in debates on legislation. I hope that we can structure our business co-operatively to allow debate on all measures on Second Reading. Putting away childish toys and the puerile behaviour that has occurred when considering private Members’ Bills in the past would show that we had learned some lessons from the previous Parliament and be a sign of maturity.
The Bill deals with trade union rights and the rights of employers. The measure is extremely small—a couple of clauses—but it could have a significant impact on restoring basic civil liberties and changing the climate of industrial relations in this country. Private Members’ Bills are intended for such small reforms. I shall give some background and speak for a short time; then we can hopefully have a proper debate and move to a Division.
Trade unions have existed in this country for more than two centuries. Statements from every political party in the House support and respect the role of trade unions in representing their members. One of their main roles is collective bargaining on behalf of their members on pay, conditions at work, health and safety and other matters.
However, part of collective bargaining is also unions’ ability to take industrial action when negotiations fail. That can take many forms: work to rule, an overtime ban and, yes, on occasions, when everything goes wrong, as a very last resort, the right to withdraw the labour of trade unionists. There is no explicit right to strike in British legislation—there never has been. If a trade union induces its members to take industrial action, it is still a tort in civil law and can therefore be injuncted against.
However, since the Taff Vale judgment and the trade union legislation in 1906, trade unions gained immunity from legal action being taken against them for tort, which was usually the breaking of a contract. That legislation lasted in its general form until the 1980s. However, in the 1980s and 1990s, 10 successive pieces of legislation attached conditions to that immunity. I was around at the time and heard the debates in this House, and I have looked over them again. The Conservative Government’s stated intention at that time was to ensure and secure the democratic rights of individual trade unionists to participate in decisions on industrial action and to be heard.
That was the intention of the original legislation. It meant that a union was protected in law only if it first conducted a secret postal ballot that was independently scrutinised. Other conditions were added later, including that the employer be notified in detail of the balloting procedure and who was to be balloted, and notified of the outcome. The employer was then to be given a period of notice before any industrial action.
As I said, there were 10 pieces of trade union legislation in the ’80s and ’90s that apply conditions to that immunity. For employer and trade union alike, that created a complex and extremely arduous process that trade unions had to abide by if they wished to take industrial action. The code of practice on industrial ballots and notice to employers was developed—it is dear to every trade unionist’s heart—and approved by the House in 1990. It was revised in ’91 and again in ’94, and added to in 2000. The code statutorily required trade unions to provide, for example, the exact number of trade union members who were to be balloted, details of their workplaces and the categories of those to be balloted. It also required the union to keep meticulous records of the members’ addresses, jobs and workplaces.
That is complicated in itself, but over time, with different industrial practices, particularly the sub-division of companies, outsourcing and privatisation, it became increasingly so. There is now a requirement to produce a matrix of information, which is onerous and complex. Nevertheless, unions have sought to abide by the code, as best they can, to ensure that they retain their immunity. The legislation even goes into the details of what will be written on the ballot paper and how the result is reported. Failure to satisfy any of the conditions renders the union open to injunction.
The House realised that it was increasing the complexity of the legislation, that people are fallible and that mistakes would be made. Therefore, section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992 provided that a trade union that failed to comply with the specific requirements would still be protected if there were a small, accidental mistake in the balloting procedure or a failure of another sort that was unlikely to affect the result of the ballot. If for those reasons the trade union failed to comply with the specific requirements, it would still be protected and have immunity.
That was a reasonable decision by this House. The problem is that it has not worked in practice as was intended. I do not think the wishes of the House have been translated to the real world, because of a series of legal actions. Legislators thought they were providing protection from accidental, minor error, but that has not happened. In fact, in a succession of court cases, a minority of employers have used minor errors in the balloting or notification process to secure injunctions and prevent the implementation of the majority decision of the trade union. Those judgments have resulted in a lack of clarity about whether a mistake is accidental or minor. The scope of the exceptions is also unclear: do exceptions include balloting but exclude the notice procedure? There is also a degree of uncertainty about whether a particular error, no matter how minor, affects the overall outcome of the ballot.
Lord Chief Justice Lord Judge picked up the irony that legislation enacted in this House to ensure and protect the democratic right of individual trade unionists to vote and participate in decisions on industrial action is now used to prevent the democratic wishes of those people being respected. That extraordinary irony has occurred as a result of those individual decisions. The judgments frustrate the democratic process that this House thought it was installing and strengthening within trade union legislation.
There are many examples, but I shall provide only a few, based on cases that I have had some involvement in. We have briefings on them from the TUC and the individual unions. By the way, this was one of the key issues debated at the TUC conference this year—representatives of all political parties were present—and unanimously, the TUC supported the promotion of the Bill to create a better climate of industrial relations.
One dispute that has soured industrial relations in this country occurred in my constituency—Unite v. British Airways. In December 2009, Unite undertook a ballot for strike action. There were 12,000 workers and the turnout was 80%, which is greater than the turnout of electors for any Member of this House. Some 92.5% of those who voted did so in favour of industrial action. An injunction was granted on the grounds that during the balloting period, 811 union members were offered and took redundancy. The employer sought and gained an injunction because it successfully argued that those 811 people should not have participated in the ballot, even though the union was not to know which of its members would take redundancy, and even though 811 votes had no material effect on the ballot. At that stage of the dispute, I genuinely thought we could achieve a negotiated settlement, but the injunction set us right back to square one. It alienated all those who participated and exacerbated the situation.
Let me give another example. EDF energy injuncted the National Union of Rail, Maritime and Transport Workers in 2009. The RMT was in negotiations about a small number of its members in three separate workplaces. They were listed on the union’s books as “engineers/technicians”. The union had been in negotiations with the employer on wages and conditions, job evaluations and a range of other issues. There had been dialogue with the employer for a period of time, so it was clear who the negotiations were about and the employer clearly understood. However, the employer gained an injunction because the RMT listed the workers as “engineers/technicians” and the employer said that although it listed engineers, it did not have a “technicians” category—people doing those jobs were characterised as fitters and other grades.
EDF won an injunction, but that only exacerbated the situation. I do not know of a case in which a re-ballot following an injunction has not resulted in a greater majority for industrial action. Parliament legislated to give, secure and enhance trade unionists’ democratic rights, but it also legislated to try to improve the industrial relations climate in this country.
Some of the examples are quite staggering and it is difficult to see how they were justified in court, but they were. Let me cite that of Metrobus v. Unite in 2009. Some 90% of those working for Metrobus who were balloted by Unite voted in favour of industrial action. Such ballots are usually undertaken by the Electoral Reform Society, and the ballot result was sent to the union, but there was some delay in passing the result from the union to the employer. From reading the judgment, it looks as though the result went to the office but by the time it got handed to an official it was gone 5 o’clock, so it was not sent to the employer that night. So it was 20 hours later that it was sent to the employer.
The employer then sought and gained an injunction on the basis that the notice was not provided promptly enough. It was a 20-hour delay. At best, from the close of the ballot to when the employer received it, no more than two and a half days had passed. To be frank, that is how long it takes to deliver a letter first-class virtually, but the injunction was granted. Part of the decision of the court was based on the fact that the union had not put at the bottom of the paper that the information it had on its members was contained on its computer register and it was classified. A phone call from the employer to the union could have solved that one—“Where did you get this information? Where is this list?” It is the norm to put down that information, particularly so that it can be checked against the computer data.
I want to mention one final case: British Airways v. Unite, again in my constituency. The High Court granted an injunction on the second ballot because Unite had not reported the full result. There were two grounds for the decision: first, United had not mentioned in an e-mail sent round or on the website that there were 11 spoilt ballot papers out of 12,000. The union received the notice at 3.59 pm. By 4.45 pm, the report was given to union representatives, who put copies on the notice boards of the crew report centres—where the crew assemble as they go on duty—within 30 minutes. They were made available in union offices and posted on displays on stands outside the offices in my constituency and in other airports. Representatives handed members the report in the crew areas. A press release was put on the website, and text messages and e-mails were sent to every member. People who work for BA are required to use their computer every day to get their rosters; it is a job requirement. The cabin crew were informed. Yet the company gained an injunction, because it was decided that the union had not fulfilled its responsibility to engage in active communication. I do not know what more it could have done.
There was real anger in my constituency about this injunction. Some of the employees concerned had never been on strike in their lives. I had people in my office in tears, including young women who had never before been involved in industrial action. They could not believe what was happening to them. They thought that the vote was a democratic process and that, regardless of whether they voted yes or no, their wishes would be respected, but they were not. There was some good news though: the union went to the Court of Appeal and only by majority—the court was split—was it decided that the union had complied with the communication requirements.
Lord Chief Justice Lord Judge commented on the irony of an employer relying on the provisions designed to protect trade union members in order to circumvent their wishes. It is extraordinary. Lord Neuberger dissented, but Lady Justice Smith argued— rightly, I believe—that the relevant legislation was not intended
“to create a series of traps or hurdles for the union to negotiate”,
but
“to ensure a fair, open and democratic ballot.”
She also introduced the concept that, where there is substantial compliance with the provisions of the legislation, the decision should be appropriate and judged accordingly. The problem was, however, that the judgment was split, and we have no idea what the next judgment will be. Such judgments rely on the individual decisions of individual judges, who often allow an injunction to be made, dragging us into the appeals process. That is destroying the industrial relations climate in certain sections of our industrial base.
As Lady Justice Smith said, unfortunately the relevant labour legislation sets traps and hurdles that were never intended by the House. I have introduced my Bill to give clarity to the original decision and intention of the House when it passed that legislation, and to restore the provision that the House thought it was implementing in the real world. The Bill does not seek to alter the core trade union obligations. A union organising an industrial ballot would still have to comply with the requirements to give seven days’ notice of a ballot, for it to be independently organised and scrutinised, to inform members and employers of the result and to give seven days’ notice of industrial action.
My Bill does not propose changes to the requirements of each of these stages; it simply addresses the consequences of technical and minor non-compliance with any of the stages of the process. It would bring our law that bit further into compliance and consistency with the UK’s obligations under the European convention on human rights, the International Labour Organisation’s standards and other domestic law. For example, under electoral law, under which we have all been elected, minor errors and even crimes that do not affect the overall result are disregarded.
The Bill would amend section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992 to allow for small, accidental failures in respect of the requirements to give notice of ballots and industrial action, to give notice of its result to employers and members, and in respect of the ballot itself. It would complete the intention of the original legislation and covers the gaps interpreted by the courts. Such failures would be disregarded where there has been substantial compliance with the process itself, and the employer would be able to establish substantial compliance because of the level of information that would still be required to be given to the employer and the members themselves.
Minor errors would also be disregarded where the failure
“is unlikely to affect…the result of the ballot”—
exactly as was intended by the House—
“or (in the case of a notice) a reasonable recipient’s understanding of the…notice.”
So the latter provision applies where a reasonable person can be expected to understand what was written on the notice before them. Where a union claims substantial compliance, the burden will be placed on the employer to prove non-compliance. That is not an onerous task, because during the interlocutory process the employer only has to demonstrate that there is a serious issue to be tried. It does not have to prove that something has gone wrong; it just has to say that there is an issue worthy of being tried and heard before the court.
Finally, I stress that the Bill would not lessen the obligations on trade unions seeking to organise industrial action, but would merely apply where there are small, accidental failures, particularly on notification and balloting. There would be no decrease in the amount of information to be provided to the employers, so it would not make it easier or harder for them to plan for industrial action. It would bring industrial action legislation into a consistent relationship with electoral law and practices generally, and more into compliance with ILO standards and the standards, rules and regulations set by the European Court of Human Rights. This is a minor Bill that could have significant implications in improving the climate of industrial relations in this country at a time when it is most needed, and I commend it to the House. This small private Member’s Bill would allow courts to interpret the will of the House as originally intended, and I hope that it gains the support of all parties.
Mr David Nuttall (Bury North) (Con)
May I thank you, Mr Speaker, for calling me to speak in this Second Reading debate? It is a great honour and privilege to have the opportunity to speak on this first Friday sitting of this new Parliament. Indeed, not only is this the first Friday, but I am the very first speaker to be called other than the promoter of this, the very first private Member’s Bill, of the many the House will no doubt consider, not only in this Session, but throughout this Parliament.
I should start by declaring an interest, in that I am the president of CAW—Conservatives at Work, which is the new name for Conservative Trade Unionists—for the north-west region. To be fair, it is some years since the name was changed, from the CTU, as it was back in the 1980s, to Conservatives at Work. The name was changed to reflect the fact that the organisation accepted not only members of a trade union. Indeed, there were many other members who had never been members of a trade union, but who were nevertheless interested in industrial matters and industrial relations generally. I have never been a member of a trade union myself, although—[Interruption.]
Mr Speaker
Order. There is a lot of chattering taking place. Whether Members are yet captivated by the hon. Gentleman’s speech I do not know, but they should certainly give themselves the chance. We need a more orderly atmosphere; this is rather unconventional. I call Mr David Nuttall, who I feel sure will shortly address the Bill.
Mr Nuttall
I will indeed, Sir, but I feel it important that I should declare my interest.
Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
Is it the hon. Gentleman’s intention to talk out this Bill? Are we going back to the old tactics, or is he being constructive?
Mr Nuttall
I intend to take interventions, as is the normal custom in this House. I have no intention to speak at great length, but I look at it like this: the public out there expect the other side of the argument to be fairly put, and that is what I intend to do, because I am not persuaded that the Bill is merely a technical measure. Nobody would have gone to the time and trouble of bringing this matter before the House if it was such a trivial matter. It is not trivial; it proposes to change the law of the land. It deserves careful analysis and detailed examination, and that is what is going to happen on the Floor of the House this morning.
To return to the CTU, let us not forget that there are many members of trade unions who are not paid-up members of the Labour party. There are many who are members of the Conservative party, of the Liberal Democrats—I am sorry to see that they are not present in great number on the Government Benches this morning, although I hope that they will be here before too long—the Scottish National party or Plaid Cymru. There are also many—they may well be the majority—who are members of no party at all. I therefore do not regard this issue as a particularly party political matter; rather, it concerns good industrial relations.
For 16 years I was an employer. I ran a small solicitor’s practice, and in the end I was responsible, along with my partners, for employing 40-odd people, so I know quite a bit about employing people. I know a lot about keeping staff happy, and I know how important it is that there are good relations between an employer and an employee. Members of the CAW wanted to work with their trade unions to help their employers be successful. It is rarely the case that an employer can be successful if their employees are withdrawing their labour. The result is invariably that the company and the employees both lose out, and in the long run that is of no great benefit to either.
In the 16 years that I was running the firm, we never had any problems with the unions. To be fair, there was no unionisation, but they were free—[Interruption.] I always said that if any of the staff wanted to join a union, they were entirely free to do so. However, without being too immodest, I like to think that the fact that there was no unionisation was perhaps because we tried to be good employers and because the staff did not feel it necessary to join a union. They were quite free to do so, but as far as I can recall, none of them ever decided to withdraw their labour.
Let me declare a further interest, in that my brother is a merchant seaman. As will become apparent later, when I consider some of the detailed provisions in the Bill, that is particularly relevant, as the Bill seeks to amend subsections (2A), (2B) and (2C) of section 230 of the Trade Union and Labour Relations (Consolidation) Act 1992.
Philip Davies (Shipley) (Con)
Does my hon. Friend not think it strange that the Labour Government, who were in office for 13 years, made changes to the 1992 Act in 1999 and 2004, and yet on both occasions, when they were reviewing and amending the legislation, decided to leave those provisions intact? They thereby indicated that they thought that they were perfectly sensible. Now that Labour Members are in opposition, after 13 years of being in government, is it not bizarre that they seem to think that those provisions are no longer appropriate?
Mr Nuttall
My hon. Friend is quite right. I will have something to say on that later, although I should point out now that section 232B, entitled “Small accidental failures to be disregarded”, which the Bill seeks to amend, was actually introduced by the Labour Government, through the Employment Relations Act 1999. We can therefore safely assume that this measure, which was not originally in the 1992 Act, was one that the Labour Government wanted included in that Act.
Subsections (2A), (2B) and (2C) of section 230 of the 1992 Act contain special provisions relating to the requirements that are applicable to merchant seamen—who have special requirements owing to the nature of their work—who are also members of a trade union.
I genuinely congratulate the hon. Member for Hayes and Harlington on his perseverance with this measure. On Thursday 23 November 2006, almost four years ago, he came 16th out of the 20 successful Members in the ballot in that Session. He then decided to introduce the Trade Union Rights and Freedoms Bill, which was part of a campaign being pursued by the unions following the Trades Union Congress of 2005, which had passed a motion calling for a trade union freedom Bill in the wake of the dispute between Gate Gourmet and its catering staff at Heathrow airport. Members will note a common thread involving Heathrow airport and airport matters. One of the principal provisions of the trade unions’ motion was the simplification of the complex regulations on notices and ballots, which restrict the ability of unions to organise industrial action when a clear majority of members have voted in support. I do not agree that the regulations are necessarily complex.
The hon. Gentleman introduced his Bill on 13 December 2006, and it was scheduled for Second Reading on 2 March 2007 but, unfortunately for him, there was insufficient time for it to be considered. It was not given a Second Reading and it subsequently fell. I should add that the introduction of that Bill was followed by early-day motion 532, which stated:
“That this House recognises that free and independent trade unions are a force for good in UK society around the world and are vital to democracy; welcomes the positive role modern unions play in providing protection for working people and winning fairness at work; notes the 1906 Trades Disputes Act granted unions the legal freedom to take industrial action; regrets that successive anti-union legislation has meant that trade union rights are now weaker than those introduced by the 1906 Trades Disputes Act”—
I do not know whether that was a critical attack on Labour’s own 1999 and 2004 legislation. The motion went on to say that it
“therefore welcomes and supports the TUC campaign for a Trade Union Freedom Bill whose principles include better protection for workers, such as those sacked by Gate Gourmet in 2005, the simplification of ballot procedures and to allow limited supportive action, following a ballot, in specific circumstances; and therefore urges the Government to bring forward legislation to address these proposals.”
The motion was moderately successful, unlike some that attract only—
Mr Speaker
Order. The hon. Gentleman has now been on his feet for 15 minutes. I understand that he wanted, very properly, to declare his interests, and a modest preamble in situations of this kind is understandable, but I must gently say to the hon. Gentleman, who is a new Member, that this is not an occasion for a general discourse on the merits or demerits of trade unions or for the discussion of the Trade Union Rights and Freedoms Bill, which is not before the House this morning. It is the occasion for a focus on the specific content of the Bill before the House, which contains two clauses. I feel sure that the hon. Gentleman will now deal with those matters and remain focused on them for the remainder of his speech.
Mr Bone
I am genuinely undecided about how to vote today. I want to know whether the Bill has been introduced purely because of the ridiculous action that British Airways took, or whether there is a more general problem. I hope that this will come out in the debate. I do not think that we should make law based on one case, and I want to know whether there is a genuine problem.
Mr Nuttall
I thank my hon. Friend for his intervention, and I agree that this is important. I shall look at the case law shortly.
I shall turn to the detail of the Bill very shortly, Mr Speaker. The early-day motion was signed by 133 Members, including the previous Member for Bury North. The hon. Member for Hayes and Harlington is to be commended for his determination in bringing this Bill before us today.
The House must not take the Bill lightly. It contains just two clauses—one is substantive, the other deals with the short title and details of the commencement provisions—and there is a real danger that, because of its brevity, many Members might think that it is a trivial matter that can be disregarded. We should not take it lightly, however. There is a danger that, because its title contains the word “lawful” and, in parentheses, the words “minor errors”, we could be lulled into a false sense of security. Those words might suggest that it is a trivial piece of legislation that will merely tidy up some long-forgotten legislation that contained one or two technical errors, but nothing could be further from the truth.
Andrew Bridgen (North West Leicestershire) (Con)
Does my hon. Friend agree that the Bill is in fact a Trojan horse, out of which could spring lots of legislation that could lead to making the UK economy far less competitive, damaging industrial relations and the potential for growth in the economy in the difficult times ahead?
Mr Nuttall
My hon. Friend is absolutely right. There is a real danger that the Bill could be a Trojan horse. It could easily take us into new territory. It could also take us back to a previous era that many people outside the House thought they had seen the last of.
Philip Davies
My hon. Friend has a legal background, and I do not. The case being made by Labour Members seems to be that they do not think that judges should interpret the law, and that the law should be clear and straightforward. The Bill seems to be throwing us out of the frying pan into the fire, however, because it says that a judge has to accept a ballot if there has been “substantial compliance” with the provision in question. Can my hon. Friend tell me, in legal terms, whether there is a legal definition of “substantial compliance”? For example, would 51% compliance count as “substantial”, or would it need to be 60% or 80%? Or are we going to go straight back to having judges deciding what is substantial and what is not?
Mr Nuttall
My hon. Friend is broadly right. The Bill seeks to move the law from a situation in which the courts are asked to consider whether something is a small, accidental failure that should be disregarded to one in which they consider whether there has been “substantial compliance” with the law. I will come to that point in a moment.
I was just saying that I do not think that we should be lulled into a false sense of security simply because the title of the Bill refers to “minor errors”. The Bill is, I believe, worthy of comprehensive analysis and scrutiny if only because our constituents would rightly expect it. This Bill will not affect trade unionists alone; it will affect everybody and the lives of everybody affected will be blighted. One can only assume that the thrust of this proposed legislation is to make it easier for trade unions to organise strike action. That will affect—it will potentially affect; it could affect—every family in this country. That is why I believe the Bill deserves somewhat more detailed scrutiny. I appreciate that I am a new Member, so I might gloss over or miss things that others with longer service might not. They will be better placed than me to give it the examination that I think the Bill deserves.
Philip Davies
My hon. Friend made a good point when he said that the Bill’s title refers to “minor errors”. I believe that the Network Rail v. RMT case was cited in support of this Bill, but does my hon. Friend agree that balloting people from 11 signal boxes that did not exist, some of which had been shut down 44 years ago and one of which, on the union’s own admission, had burned down hardly constitutes a “minor error”?
Mr Nuttall
My hon. Friend is right. My concern is that if this legislation were allowed to proceed in this form, that sort of slipshod behaviour might be allowed to continue in future. I submit that one reason why a line of cases has been brought before the courts is that employers have upheld the will of this House and have sought to secure full compliance with what was originally intended. I stress again the importance of what was intended not by the 1992 Act but by the Employment Relations Act 1999, which was introduced by the Labour Government.
In his opening remarks, the hon. Member for Hayes and Harlington said—I agree with him—that we begin to understand the full effect of this proposal only by looking at the legal framework in which employees and employers operate. The starting point is the contract of employment itself. Under such a contract one individual, the employee, provides his or her services or labour for the benefit of another, the employer. In return, they are paid for the labour they provide. The work is manual labour in some cases or it could be “white collar” work, as we call it, or it could be providing expertise on a particular subject. It follows that withdrawal of that labour is a very serious matter and, unsurprisingly, the law attaches serious consequences if someone breaches that agreement, as it does with any other breach of contract,.
Henry Smith (Crawley) (Con)
Is it not the case that elections are held by other legal entities, such as public limited companies or national organisations, and are sometimes used for trustees and so forth? With those other legal entities, is it not the case that complete compliance with the law is necessary, rather than “substantial compliance”—whatever that vague term means legally?
Mr Nuttall
My hon. Friend is absolutely right. In most areas of the law, people are quite rightly expected to follow it to the letter. In the particular area of trade union law, the possibility of human error coming into the process is taken care of, I submit, by the provisions of section 232B of the 1992 Act, which specifically allows for minor, small, accidental failures to be completely “disregarded”. That raises the question of why on earth this Bill is being introduced at all, particularly following the decision of the Court of Appeal in the British Airways plc v. Unite case earlier this year. I accept that it was only a majority judgment, but it was nevertheless a judgment of the Court of Appeal, so it should be given time to bed down, as it put forward a fairly clear view of the law.
Andrew Bridgen
Can my hon. Friend think of any other aspect of the law where “substantial compliance” is considered sufficient?
Mr Nuttall
There are various areas of the law. We have a de minimis rule, for example, which covers cases where there has been a trivial or minor breach. The judges will often overlook such a trivial or minor error if it could be construed as complying with the de minimis exclusion for understandable human error.
Jacob Rees-Mogg (North East Somerset) (Con)
I thank my hon. Friend for giving way so graciously and so often and for elucidating so many points in this debate. Does he agree that it is only right that trade unions be held to the highest standard of accuracy in holding these ballots, because they get a special exemption from the contract law to which their members would otherwise be subject? As they are getting an exemption under the law, should they not be required to do things absolutely properly? Perhaps the Bill should be amended to tighten the regulations rather than to loosen them.
Mr Nuttall
My hon. Friend is absolutely right. I was about to come on to the history of how we arrived at where we are today, albeit briefly as I do not want to go too far back. It is important to remember that a couple of hundred years ago it was completely illegal for workers to join together at all. We have now happily moved on, but there is perhaps a case for tightening trade union legislation, and I believe that a number of other matters could be more usefully included in the Bill. I assume that people in the trade union movement want to see it prosper, go forward and make itself ready for the 21st century.
Charlie Elphicke (Dover) (Con)
Does my hon. Friend think that now is the time to be passing legislation to make it easier to strike, when we need to pull ourselves out of this massive recession the country has had to face, thanks to the shambolic economic policies of the Labour Government? At another time in the future, when the country is perhaps doing better—
Charlie Elphicke
It is not nonsense; it is accurate. It was Labour Members who caused the recession and now they are trying to make it easier to strike. That is not a fiscally responsible thing to do.
Mr Nuttall
I thank my hon. Friend for that intervention, which highlights the real danger. He strikes to the heart of the matter, because as the nation tries to emerge from the recession, we need to do everything we can to put dynamism back into British business. The last thing that we want is a return to the dark days of the 1970s, and the problems of the 1980s, when the news headlines were dominated by industrial unrest and strife. If those days returned, the economic competitiveness of British business would be damaged, and that would be good neither for this country nor for trade unions in general.
Philip Davies
I want to drag my hon. Friend back to the point made by my hon. Friend the Member for North West Leicestershire (Andrew Bridgen) about the Bill’s terminology of substantial compliance. Does he agree that it would be interesting if Labour Members accepted substantial compliance as the basis for legislation generally? For example, in the case of a major health and safety problem at work, would their presumption be that the employer should face no sanction if that employer had displayed substantial compliance throughout the rest of the year. Does my hon. Friend agree that the concept of substantial compliance might have merit after all?
Mr Nuttall
I am sure, Madam Deputy Speaker, that Mr Speaker is most upset that he has not been able to stay and listen to the rest of this interesting debate, but he will be able to read it later.
I thank my hon. Friend the Member for Shipley (Philip Davies), who raises an interesting question. The point was made earlier that the provision might be a Trojan horse. If we go down the path of referring to matters as substantially complied with, or saying that, taken together, there has been substantial compliance, there is a danger that it leaves open a gaping hole. What is not substantially compliant? What should we do if someone complies with their health and safety policy for 51 weeks, but not in the other week? Such an approach does not make sense. During detailed examination of clause 1(3), I shall consider whether the Bill takes us any further forward.
Andrew Bridgen
Does my hon. Friend agree that the problem is not just with substantial compliance some of the time, but with the fact that some groups will be allowed substantial compliance, whereas other groups will have to adhere to complete compliance all the time?
Mr Nuttall
My hon. Friend is right. I can well understand those who comply with the law for all of the time not being too happy about other groups being allowed to comply with the law for only part of the time. The rest of the time they can say, “Well, we have substantially complied with the law.” What should we do with a burglar who said, “Well, I’ve been substantially compliant with the law for 364 days of the year, but today I happen to have fallen foul of the law”? Should we let him off? What absolute nonsense.
Any employee who breaches their contract of employment leaves themselves open to the risk of being found liable, under the law of tort, to their employer, for breach of contract. That applies whether the contract is for unskilled manual labour, skilled manual labour, or what is often termed white collar services. The liability applies equally to those organising industrial action, such as—but not necessarily exclusively—trade unions, because those concerned will seek to procure a breach of contract, which is a tort under English law. Under those circumstances, both individuals and trade unions risk incurring liability to the employer. I add that there is also a potential liability to third parties. In individual terms, the employee is also, of course, liable to be dismissed.
Only through the protection afforded by statute can employees and trade unions escape the consequences of their actions in withdrawing their labour and breaching the terms of their contract of employment. That was first accepted, as the hon. Member for Hayes and Harlington mentioned, as long ago as 1906 when the Trade Disputes Act was passed. Prior to that, the common law provided that trade unions were liable to claims for damages for inducing a breach of contract. The 1906 Act granted them immunities from those liabilities. As I mentioned in response to my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), 100 years earlier the Combination Acts of 1799 and 1800 made it illegal for workers to join together and press employers for shorter hours or increased pay. Those Acts remained on the statute book until 1824 when they were repealed, to be replaced by the Combination Act of 1825.
Philip Davies
Does my hon. Friend agree that when we consider what is fair and reasonable in such legislation, part of the equation that should be considered, and that appears to have been considered in cases such as British Airways v. Unite, is the impact of the strike action on the business and its customers? If, as in the case of Unite, there is an attempt to wreck Christmas holidays for over 12 days, which would have affected British Airways and its customers to a devastating extent, the highest possible standards must be expected of unions in such circumstances.
Madam Deputy Speaker (Dawn Primarolo)
Order. May I gently remind the hon. Gentleman about the remarks made at the beginning of this debate about a new way of debating in the House? He has been speaking for nearly 40 minutes. If he has set the scene, I would be grateful if he now dealt with the details of the Bill.
Mr Nuttall
Thank you, Madam Deputy Speaker. I will indeed. If I may, I will deal briefly with the intervention made on me, and then bring us up to date and consider the detail of the Bill.
Madam Deputy Speaker
Order. I hear what the hon. Gentleman says. He has set the scene, so he can deal with the intervention. However, I then expect him to address his remarks to the Bill.
Mr Nuttall
Thank you, Madam Deputy Speaker. I will indeed.
My hon. Friend the Member for Shipley (Philip Davies) is right about the devastating effect of industrial action such as that to which he referred. In the case in question, it looks as though the action was specifically arranged and organised to hurt people who had waited all year for their holiday. Therefore, it is not surprising that the law drawn up in 1999 should expect the highest standards of compliance. In view of what you have said, Madam Deputy Speaker, I will skip over the next portion of my remarks. Let us jump forward to the late 1970s. I think that this is relevant, because that was the time when trade union powers reached what could be described as their zenith.
Andrew Bridgen
Does my hon. Friend agree that the fact that Bill seeks to send industrial relations between employees and employers back to the late 1970s should come as no surprise, given that the new Leader of the Opposition seeks to swing the politics of the Labour party back to that time, and that the great consolation for Conservative Members is that Labour will therefore be out of government for a very long time?
Madam Deputy Speaker
Order.
Let me also remind the hon. Member for Bury North (Mr Nuttall), before he rises to reply to his hon. Friend’s intervention, that I have already told him very specifically that, having spoken for after 40 minutes, he should end his general remarks and begin to deal with the contents of the Bill. Before he replied to the earlier intervention, he assured me that he would do that, but he then broadened the debate. I should be grateful if, in replying to the intervention from the hon. Member for North West Leicestershire (Andrew Bridgen), he would refer directly to the Bill.
Mr Nuttall
I certainly will, Madam Deputy Speaker. To be fair, I think that I have already dealt with my hon. Friend’s point. I agree that there is a danger that that will happen if the Bill is allowed to proceed in its current form. However, I think it relevant to point out briefly—very briefly, and for the good of the trade union movement—that trade union membership has halved since the 1980s, from 13 million to 6.5 million. I fear that if the Bill were allowed to proceed and a further period of industrial unrest were to follow, there could well be a further decline, perhaps—although it is not for me to say—a terminal decline in union membership.
Let me now do what you have rightly asked me to do, Madam Deputy Speaker, and turn to the detail of the Bill.
Charlie Elphicke
Given that the Court of Appeal reversed the injunction in the British Airways case, does my hon. Friend think that the Bill is necessary at all?
Mr Nuttall
No, I do not. We have not yet had time to see the details of the Court of Appeal’s decision in the case of British Airways plc v. Unite. The court’s judgment, which was quoted by the hon. Member for Hayes and Harlington, was quite clear in regard to the effectiveness of the law.
There has been such a long line of cases of this kind, and it is interesting to note that time and again they have involved the same union: Unite. One would think that by now Unite, and the people whom it employs to conduct the ballots, would have learned how to do it, but apparently not. The Master of the Rolls recognised that. Delivering his dissenting judgment in the Court of Appeal, he said that he agreed with Mr Justice McCombe, who had delivered the earlier judgment in the Queen’s bench division. He said that he did
“not consider that the Union has a good prospect of establishing at trial that it complied with section 231. On the contrary, I would not regard its prospects as promising.”
He reached the conclusion that
“the requirements of section 231 seem…at least as at present advised, to be unnecessarily prescriptive and strict, particularly insofar as they can be relied on by the employer and particularly in a case such as this… Having fallen foul of the technical rules of the 1992 Act in a ballot a few months earlier, the Union might have been expected to take particular care over complying with all those rules in what was effectively a rerun of that ballot.”
So there we have it: the Master of the Rolls saying in terms that the union had had one chance, and had got it wrong. A few months later it did effectively the same thing, and got it wrong again. My hon. Friend the Member for Dover (Charlie Elphicke) is quite right.
Let me now return to the detail of clause 1, which seeks to amend section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992. Subsection (2) would add the words “or notice”. Previously compliance had been required only if a ballot had been held, but sections 226 to 230 require notice to be given to the employer as well. Section 226A requires the notice to be given
“not later than the seventh day before the opening day of the ballot”,
and to be
“received by every person who it is reasonable for the union to believe”
should receive it.
In considering whether this is a sensible provision, I ask myself why notice should not be given to all the other people who would be affected. I would consider it sensible for the Bill to require it to be given not just to the employer, but to others who would be affected by the union’s actions, such as post office and railway users’ groups. Section 226 states that it would help the employer to be able to make plans and bring information to the attention of some of his employees, because other employees might be seriously affected if half their colleagues walked out on strike. It is entirely right that there should be compliance—full compliance—with the requirement for notice to be given.
Andrew Bridgen
Compliance with the notice period is essential because, as my hon. Friend has pointed out, there are suppliers downstream and users upstream of the business who need to be informed of potential industrial action.
Mr Nuttall
Indeed. The time is needed so that other people—not just other employees—can be notified. Deliveries may need to be stopped, and customers may be waiting for those deliveries.
There is a strong argument for increasing the notice period. Section 226A(1)(a) requires only seven days’ notice, which is not very long. It will include a weekend, so there will be only five working days. That is not a long time in which to make all the necessary preparations, especially when the company involved has never experienced a strike before and does not know what to do. There will be a lot to be done in those seven days. There is a lot of merit in the argument that the period should be extended to 14 or 28 days, so that people know where they stand if a union starts to take industrial action.
Charlie Elphicke
My understanding—correct me if I am wrong—is that the substantial compliance provision would allow for exemption from section 234A of the 1992 Act, which deals with the notice to employers of industrial action. Does my hon. Friend think that substantial compliance might be a notice sent in the post but not delivered? Is that substantial compliance or not? Should not an employer receive actual notice and have some certainty about that?
Mr Nuttall
My hon. Friend makes an interesting point, which we will look at in more detail when I look at the next paragraph of the subsection. The problem with the Bill is that it not only introduces the novel concept of substantial compliance, but extends the scope of the 1992 Act to cover not just the ballot but the notice provision. Therefore, it is doing two things at the same time. Incidentally, the provision also extends the number of sections to which the exemption applies, which we will look at later.
May I move on to subsection (1)(b) of section 232B, which states that the failure will be disregarded if
“the failure is accidental and on a scale which is unlikely to affect the result of the ballot”.
It seems that, when the 1992 Act was amended, the then Labour Government knew exactly what they were doing. They were providing for minor errors to be discounted. In section 232B, they specifically allowed for a failure which is
“accidental and on a scale which is unlikely to affect the result of the ballot or, as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the ballot”.
That seems to be straightforward and simple to understand.
Philip Davies
It may be straightforward to someone as intelligent as my hon. Friend, but may I ask him to clarify the matter for those of us who do not have his intellectual capacity? Does the law as it stands say that the failure would be disregarded if it were, “accidental and does not affect the ballot” or does it say that it would be disregarded if it were “accidental or does not affect the ballot”? If the problem in the vote were not accidental, presumably it would not matter if it made any difference, because the union would have to meet both tests: the failure would have to be accidental and not make any difference. Can he clarify whether both tests have to be met at the moment?
Mr Nuttall
I thank my hon. Friend for that intervention. The position is more complex perhaps than I originally intimated. Section 232B(2)(b) says that, in relation to a ballot, if there is a failure or there are failures in respect of a provision mentioned in subsection (2) or other provisions, and the failure or failures are accidental and on a scale that is unlikely to affect the result of the ballot, those can be disregarded. It is worthy of note that the section already makes provision not just for a single failure but for failures, so it already provides for more than one failure. There could be several failures and the law accepts that at the moment. It accepts that there could be multiple failures and the existing legislation would still potentially allow those to be disregarded by the courts, as happened in the case that has been so often referred to this morning—the case of British Airways plc v. Unite. There were a number of errors. The Court of Appeal, by a majority, decided to allow the appeal and discharged the injunction that had been obtained at first instance by the court.
Andrew Bridgen
Does my hon. Friend agree that the Bill effectively will give special rights, privileges and concessions to unions that are not given to any other groups in this country?
Mr Nuttall
My hon. Friend is right. The concept that is introduced by the proposed amendment to section 232B of “substantial compliance” is a novel concept. I have not heard in the opening remarks in the debate about any other legislation where that is referred to, and therein lies quite a major problem with this legislation.
I turn to the crux of my argument.
Philip Davies
This appears to get down to the nitty-gritty of what is accidental. It seems to me from the judge's summing up that Unite got it wrong in its dispute with BA. The judge said that he thought that
“it therefore seems clear that the union was aware, or certainly ought to have been, that the figures provided to BA in the ballot notice included a substantial number of those who were shortly to leave on voluntary redundancy, and therefore included members who the union could not reasonably have believed would be entitled to vote in the ballot.”
In that case, the mistakes might have been minor, according to the interpretation of the hon. Member for Hayes and Harlington (John McDonnell), but they certainly could not have been accidental if the union was balloting people whom the judge ruled it should have known, or did know, were not entitled to vote.
Mr Nuttall
My hon. Friend makes a valid point. One of the problems with the interpretation of the clause relates to what is accidental and what is not. I submit that we are going to have exactly the same problem if we change the law and introduce the concept of substantial compliance. We are not any further forward than we were.
Henry Smith
Does my hon. Friend think it in order that the House should legislate to allow for incompetence, whether accidental or deliberate?
Mr Nuttall
I thank my hon. Friend for his intervention. I certainly do not think that it is appropriate that the House should legislate for incompetence, and effectively that is what this Bill is leading towards. It is effectively saying that there could be 70%, 60% or 80% compliance with the law and that would be okay. I might be wrong, but I am of the opinion that members of the public outside this House rightly expect a trade union, or indeed, as my hon. Friend the Member for North West Leicestershire said, any other group, to comply with the law to a much higher degree.
I think the degree of compliance should be 98% or 99%, which was the intention in 1999 when the then Labour Government introduced section 232B providing for small accidental failure to be disregarded. The new provision refers to
“the failure…or the failures taken together”,
so it mirrors the current situation in that duplicate failures would be permitted. It also states that
“there has been substantial compliance with the provision or provisions in question”
and
“on a scale which is unlikely to affect (in the case of a ballot) the result of the ballot or…a reasonable recipient’s understanding of the effect of the notice”.
The problem is that that provision takes us no further forward. Employers are just as likely to say, “Well, has there been substantial compliance or not?” It is not clear, so we are no better off than if we were to ask whether there had been a minor or accidental failure. Therefore, this provision will prove to be a treasure trove for lawyers.
Philip Davies
Given that the purpose of the Bill is to try to avoid any misunderstandings, does my hon. Friend agree that it would have been more helpful if the hon. Member for Hayes and Harlington had included a definition of substantial compliance? If he had, we might have avoided some of these problems.
Mr Nuttall
My hon. Friend is right. One of the defects of the Bill is that there is no definition of what constitutes substantial compliance under the law; we have no idea at all about that.
The current law is particularly detailed, however. For example, section 226A of the 1992 Act requires that a union must give notice
“not later than the seventh day before the opening day of the ballot”
to
“every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.”
All sorts of questions arise, such as what happens if someone is set to become an employee but is not working on the day? They will never have a chance to vote; are they to be included or not? I do not want to address all these questions today. I simply put that one as an example of the problems that will arise if the Bill is enacted.
Henry Smith
Does my hon. Friend agree that that is precisely why the 1999 and 2004 legislation introduced by the previous Government—to whom I do not give credit for very much—did not allow for substantial compliance? The point my hon. Friend makes illustrates precisely why they saw the sense in not allowing for that.
Mr Nuttall
My hon. Friend hits the nail on the head. Back in 1999 there was a new Labour Government with a substantial parliamentary majority, and they could very easily have introduced a measure along the lines of the Bill, but they did not do so because it is a bit of a dog’s breakfast. It is not clear what substantial compliance means; there is no definition in the Bill and our attention has not been drawn to any previous case law or to any academic analysis of what would or would not constitute substantial compliance.
Andrew Bridgen
Is not the crux of the matter that if substantial compliance had been fully defined in the Bill, that would merely move the legal argument on to the question of whether actions might or might not be likely to affect the ballot?
Mr Nuttall
My hon. Friend is right. Whether or not something may or not result in the ballot being affected is a very moot point indeed, and it could exercise the courts for a very long time.
I think there is a danger that the lawyers are sitting out there rubbing their hands with glee, because when they see the Bill they must think, “Marvellous! We’ve almost run our course in respect of the 1992 and 1999 legislation, which has been to the Court of Appeal, but we are now going to move back to square one and start again. We can spend hour after hour in the Queen’s bench division and then the Court of Appeal.” The issues will not be dealt with in, say, Uxbridge county court.
Philip Davies
Returning to the point made by my hon. Friend the Member for Dover (Charlie Elphicke), is there not an irony here in that the hon. Member for Hayes and Harlington has introduced the Bill to benefit his friends in the trade unions and they have got a Court of Appeal decision that is favourable to them that they could presumably use in further cases as case law, yet he wants to scrap that judgment, which eventually found in their favour, to introduce a new element to the law that is uncertain? If the hon. Gentleman wants to help his friends in the trade unions, should he not leave the law as it stands with this clear verdict from the Court of Appeal, rather than try to introduce a new Bill that introduces new uncertainty? He is not even helping the people his Bill is designed to help.
Mr Nuttall
Absolutely. My hon. Friend is right that there is a real danger that this Bill will not only move industrial relations back three decades, but will move the analysis of the case law back to square one—back to 1992 or 1999. We will be starting with a blank page, and the lawyers will be able to say, “Well, here we are. All past judgments are out of the window because there is now a new piece of legislation.” All the previous cases that have been cited this morning will, effectively, be made redundant because the measure that has been tested before the courts on several occasions will no longer be on the statute book, and we will be faced with a new measure that has never been tested before the courts. It will not be long before an employer is required to put the matter to the courts for a decision and, as I said, these are not matters that could be dealt with in a county court. They would inevitably have to be dealt with in the High Court. They would then be appealed to the Court of Appeal for civil cases, and who knows whether they would go on to the Supreme Court. They would be lengthy and expensive actions, and I submit that we would be no further forward in having clarity in the law—which, after all, is why we are here in Parliament. We thought we had nearly got there in the case of British Airways v. Unite earlier in the year. If we now go back to square one, we will be no further forward.
Philip Davies
I am pleased my hon. Friend agrees with me about that. However, has not the hon. Member for Hayes and Harlington reasonably identified that the crux of the BA case is the definition of accidental? It was the judge’s view that in this case accidental did not mean unintentional—that there was not enough to satisfy the demands of the law. If the hon. Gentleman wants to deal with the BA problem, to which he referred at length in his speech, would he not be better off just amending the law to give a definition of accidental, rather than going back to the drawing board and introducing a completely new concept altogether?
Mr Nuttall
My hon. Friend is right, because rather than deal with the matters raised in the judgment, such as the definition of “accidental”, the Bill seeks to introduce a novel concept of whether there has been “substantial compliance” with something.
I shall now deal with the next subsection, if Madam Deputy Speaker will allow me. Subsection (5) deals with the burden of proof. The existing legislation under section 232B of the 1992 Act contains no subsection (5), so this would be a new insertion into the original provision. Subsection (5) states:
“In any proceedings in which reliance is placed on this section, any failure to comply with a provision mentioned in subsection (2) is to be treated as meeting the terms of subsection (1)(b) unless the contrary is proved.”
In simple terms, that means that the burden of proof is being placed completely on the employer, who will have to prove this novel concept of what constitutes “substantial compliance”. As has been said this morning, that arrangement is entirely the wrong way round. It is and has always been incumbent on the trade unions to show that they are complying with the requirements of the law, because it, unusually, exempts them from the liabilities that otherwise exist under British law.
Brandon Lewis (Great Yarmouth) (Con)
Does my hon. Friend agree that the problem with having the onus on the companies and the employers is that that imposes a huge responsibility and potential cost on them in tough economic times, because they will have to try to prove something and get information to which they do not have easy access? That is why the onus in the Bill is completely the wrong way round and why the onus should remain on the unions.
Mr Nuttall
My hon. Friend is absolutely right about that point, although I had not thought of it, because employers face having to start delving into matters into which they will probably never have delved and that could be, as he says, a very expensive and time-consuming business. It would be far better for employers to get on and deal with the job that they are there to do, which is to try to run their businesses and companies profitably.
Subsection (5) deals with the burden of proof and makes it the job of the employer to prove that there has been a failure of “substantial compliance”; it puts the burden of proof on the employer. I submit that it is the job of the trade union to prove that it has complied with the rules. I sometimes refer to this as the 51:49 rule, because proving something on the civil standard of the balance of probability means that on a 51:49 balance it is more likely than not to have occurred. I believe that I am right in saying that we were told during the opening remarks of the hon. Member for Hayes and Harlington that proving this was not difficult, but if that is the case, it is not difficult for the trade unions to prove that they have substantially complied with whatever provision they are alleged not to have complied with. As we have said, what does or does not constitute substantial compliance is a matter of great debate. For example, has there been substantial compliance where a notice has been sent but not in the right form or where it has been partially or badly photocopied?
Charlie Elphicke
Will not the reversal of the burden of proof and the introduction of this wholly uncertain new test be very counter-productive, because we have such strong and well-understood case law and precedent in this area that this approach might damage the position of trade unions?
Mr Nuttall
There is a real danger of that. One of the reasons why it would be wrong for us to pass this Bill in its current form is that it would damage the standing of the trade unions. There is a real risk that they will find it more difficult to recruit new members if they are seen to be moving back to the 1970s, and if there is such a return, there is a real risk that our economic competitiveness will be damaged. Before I deal with which groups might be affected by this measure—it is important that we examine that and consider who will be affected outside this House if the Bill is allowed to pass into law—I shall address the requirements of subsection (5). Placing the burden of proof on the employer would be a major change and such a provision was not in the previous legislation. I have heard no good reason this morning why it would be a sensible way to proceed.
Clause 2, which deals with the short title of the Bill and commencement, is relatively uncontroversial. However, it might be suggested that the period of one month before the legislation comes into force is not sufficient. Clause 2(3) contains a fairly unusual provision. It states:
“This Act applies in relation to industrial action taking place (or proposed to take place) on or after the day on which it comes into force.”
That leaves the definition of what “proposed to take place” means open to some doubt.
Jacob Rees-Mogg
Does my hon. Friend agree that the clause is particularly dangerous, because it allows errors that have been made, which may or may not have been considered to be substantial before, to be reconsidered after the fact? It is most unsuitable to legislate in that way, so the clause is one of the worst in the Bill.
Mr Nuttall
My hon. Friend is quite right. It is slipped in at the very end, in the last couple of lines of a clause that might otherwise be uncontroversial and remain unconsidered. I might have overlooked it, were it not for the fact that in parentheses, it says
“or proposed to take place”.
That changes the whole ballpark of the meaning of the clause. One could understand if action were actually taking place—that would be quite understandable, and we can see whether someone is on strike or not—but where there is a requirement to consider whether it is proposed to take place, who makes the proposal? Is it someone who has proposed action in a branch meeting? Should it be proposed at a national level? Should there have been a ballot? Should there have been notification? How far down the line does it have to have gone before it is regarded as an proposed action? What happens if one union member has proposed it to his mate? Is that regarded as a proposal for action? The whole Bill is a minefield; it is a treasure trove for lawyers and I submit that in its current form it will do nothing to help trade unions and industrial relations in this country.
Before we go further, we should consider the groups that will be affected by this Bill. Principally, four groups will be affected. The first group is the trade union members. Some members might have their views excluded because, if one assumes that the thrust of the Bill is to make it easier for mistakes to be made—that is what we are talking about; we are making it easier for people to be missed out—there will be a greater likelihood that ordinary trade union members will not have their views taken into account. They will quite rightly ask why they are being denied a say, and they are certainly a group that we should have in the forefront of our minds when we are deliberating on which way we should vote on this Bill.
The second group is the trade union members who are consulted. Regardless of whether they are consulted in support of or against any particular proposed industrial action, there is a real danger that their hard-earned moneys, which are paid over as union subscriptions and union dues, will be wasted and lost in the pockets of the lawyers and in payment of court fees while day after day is spent debating in the courts the merits and demerits of the Bill.
The third group is the employers. Where is the line to be drawn? The law already allows small accidental failures to be disregarded and it is reasonable to assume that the Bill is seeking to relax those provisions. It does prompt the question of what degree of error is now to be disregarded. I would ask the House to accept that as the current description is “small”, the proposed disregard must by definition be a level higher than “small”. The question is what degree of disregard is greater than “small”. Is it, for example, “quite small”, but not “small”? Is it “little”, but not “small”? Is it “modest”, but not “small”? Perhaps it is not “quite small”, “little” or “modest”, but in fact—I suspect that this is where the law is intended to go—quite a major failure. We are moving towards “substantial compliance” allowing for quite major failures of the law and allowing fairly major breaches of the law to be disregarded. That cannot be right.
Brandon Lewis
A couple of issues come to mind. Does my hon. Friend agree that as well as moving employers into a position where the onus would be on them, so they could be seen as aggravating the situation by doing research into any potential disregards, there is also the chance—as he has said—that although what is currently seen as being small is hard to define, if it is in law it has the ability to grow even once it has been refined? What we see as small in one case might become larger and larger as time goes on. The value of members who are unable to use their vote and are not given the opportunity because of an accident or mistake is devalued, rather like constituencies in which we have more people with less value to their vote.
Mr Nuttall
My hon. Friend makes a reasonable point. One difficulty in defining a small or minor error is the size of the electorate. Something that could be regarded as a small error that could be safely disregarded in one trade union would not be appropriate as a matter to be disregarded in another trade union. Even when a conclusion has been reached in proceedings that might at first sight result in apparent settlement of the law, that is not necessarily the case if the union involved is the size of Unite rather than the size of the garment workers’ union, which might have nowhere near the same number of members. This is an important issue that will affect employers and the law will not be clear even after the Bill is passed.
Andrew Bridgen
Perhaps I could bring to my hon. Friend’s attention another complication that might not have been considered of the possible implications of this Bill. If we move the burden of proof from the unions to the employers regarding substantial compliance with the provisions and the phrase
“on a scale…unlikely to affect”,
does my hon. Friend agree that there could be a field day for the lawyers when employers, perhaps reasonably, claim that the unions have not complied fully by providing them with the information they need to decide whether there has been substantial compliance with the Bill or whether any errors are on a scale unlikely to affect the Bill’s provisions? Would that not therefore require further legislation to give employers the rights to obtain the information from the unions in a reasonable, timely and full fashion? That is yet another field day for the lawyers and, yet again, will fail to achieve the aims of the Bill.
Mr Nuttall
My hon. Friend is quite right. That is a point that I did not consider fully—I apologise for that—when going through clause 1(3). There is a risk that that subsection, taken together with subsection (5), will mean that the employer now has the problem—it will be a problem—of bringing before the courts evidence that there has been substantial compliance or non-compliance. All the evidence might well be in the hands of the trade unions, and it will be very difficult for an employer to be able to satisfy a court and, under this Bill, they would have that responsibility. Employers would have that burden placed on them. How on earth can they be expected to fulfil and meet that requirement when the information is in the hands of the trade unions? As my hon. Friend reasonably and rightly says, it would perhaps be more understandable for there to be a provision in the Bill to require the information that the court needed to be handed over so that there could be no doubt that there was a full requirement for the trade unions to hand over to the employer all the relevant information to enable the employer to submit an action to the court. Without that information, the employer would have no reasonable basis on which to instruct their solicitor, and there would be no way for a solicitor to instruct counsel, because they would not have the facts and figures to enable them to make their case.
Charlie Elphicke
My hon. Friend is making a technical and detailed speech, but do I understand his case correctly? Is it that the Bill will create uncertainty for trade unions and employers, and that it will benefit lawyers and result in a massive wodge of cash for them? That is just what happened when the previous Government handed over all coal compensation cases to a bunch of lawyers. Surely that is unacceptable.
Mr Nuttall
My hon. Friend makes a good, reasonable point. The law would not be clarified in any way by the Bill, but there is a real danger, as I have pointed out, that it would take us back to the situation we faced in the 1970s and 1980s. Much of the case law would be made redundant, and we would face yet more legal actions—
Madam Deputy Speaker
I know that the hon. Gentleman wants to make a number of points on the Bill, but he is repeating himself; he has come back to those points on a number of occasions. Perhaps he could carry on with the rest of his comments, rather than telling the hon. Member for Dover (Charlie Elphicke) what he has already said.
Philip Davies
Although my hon. Friend the Member for Dover is right, the category of person that appears to be in danger of being ignored in this debate is not the trade unions or employers but the paying public—the customers. At the end of the day, it is they who are most inconvenienced by all the strike action. Does my hon. Friend the Member for Bury North (Mr Nuttall) accept that if the Bill were to have a Second Reading today, it is not the impact on trade unions or employers that should be at the forefront of our mind, important though that is, but the impact on the customer and the paying public?
Mr Nuttall
My hon. Friend is quite right. He has perhaps anticipated my fourth point. I was about to say that fourthly, and perhaps most importantly, there is the question of the paying public, who would be the ones most affected by the changes. I am concerned that if the law is changed, we will see a return to the dark days of the 1970s. I am concerned for my constituents in Bury North—for the working mum who is forced to make last-minute arrangements for child care because teachers have gone on strike; for the small business man who is waiting for a customer’s cheque to arrive, and who faces the ruin of his business because the postmen have gone on strike; for the taxi driver who needs to renew his licence, and faces the loss of his livelihood because he is preventing from renewing it because the officials in the town hall are on strike. I could go on and on; there are so many categories affected. Earlier, we touched on the family who save for, and look forward all year to, the one holiday that they have, and who are then denied the opportunity to go because one small group of workers has withdrawn its labour and gone on strike.
The law as it stands cannot be that difficult to comply with. The 2009 “Annual Abstract of Statistics” issued by the Office for National Statistics has details of how many working days were lost through labour disputes by industry in 2009. It shows that in transport, storage and communications, 657,000 working days were lost. In public administration and defence, 325,000 working days were lost. The figure was 31,000 in education; 16,000 in manufacturing; 5,000 in health and social work; 4,000 in other community, social and personal services; 2,000 in construction; and 2,000 in other industries and services. So it is not impossible to comply with the law as it stands. All those industrial disputes were able to proceed, quite lawfully, under current legislation.
Let me conclude by saying that the Bill risks taking the trade union movement back to the 1970s and ’80s. I submit that it represents a huge missed opportunity to modernise the trade union movement. It tries to simplify existing legislation, but it runs the risk of creating new uncertainties. It introduces the concept of “substantial compliance”; and, as I say, lawyers must be rubbing their hands with glee at the thought of spending more time in court. Those words would have to be tested in the courts, because we know nothing of what they actually mean.
The Bill does nothing about the underlying problem that it seeks to solve. It does nothing to help the trade unions, or those engaged by them, to conduct the ballot in accordance with the letter of the law. After all, the issue is the will of Parliament and ultimately, therefore, the will of the people. The level of compliance is set where it is because that is where the public want it to be. For the sake of hard-working families who fear having their everyday lives disrupted by a return to the disastrous days of some three decades ago, we should not allow the Bill to proceed.
Having considered the merits and principles of the Bill, I am not persuaded that it is a sensible way forward. I am not convinced that the changes it seeks to make would, in any way, shape or form, improve on the existing law. Indeed, I would respectfully submit that the provisions would introduce a whole new area of uncertainty into trade union law, and that would be bad not just for the trade unions and employers, but for our economy. In short, it would be bad for Britain. For all those reasons, I propose voting against the Bill, and I urge the whole House to do likewise.
Nia Griffith (Llanelli) (Lab)
I congratulate my hon. Friend the Member for Hayes and Harlington (John McDonnell) on securing this debate on his Bill. He is renowned for his determination in campaigning on issues such as the one that we are discussing.
The overwhelming majority of employers, as well as trade union leaders and their members, working in a wide range of contexts and within different structures, recognise that good employer-employee relations are crucial in an increasingly competitive world. They recognise the importance of good communications and clarity in respect of negotiating structures. They recognise the need to exercise responsibility and show restraint. Indeed, during the economic downturn, trade unions and employers have made some very difficult and responsible decisions; employees have accepted pay freezes or agreed to work fewer hours, with a subsequent drop in take-home pay, to avoid redundancies and keep their companies in business.
On a more optimistic note, only last week we heard a very good news story: Jaguar Land Rover and the trade unions reached a landmark deal which will mean a multi-million pound investment in the Jaguar Land Rover business here in the UK, securing the future of the three plants at Castle Bromwich, Solihull and Halewood, creating 5,000 new jobs and safeguarding up to 50,000 jobs in the supply chain, including jobs in my constituency, Llanelli, where there is a ThyssenKrupp Tallent plant that supplies components to Jaguar Land Rover. This would not have been possible without the brave leadership of Unite, leading a ground-breaking change and flexibility agreement.
Indeed, day and day out, behind the scenes and away from the glare of publicity, trade union leaders and employers negotiate and reach agreement. They see industrial action as the last resort. They understand the importance of a properly conducted ballot in enabling employees to express their views before taking strike action.
The Opposition recognise the importance of legislation in providing a proper framework in which to work, and during our time in office we introduced several measures to improve rights at work and to help to provide security at work. On trade union protection, that means that every worker now has the right to be a member of a trade union and to be represented in grievance and disciplinary hearings. It means that if a majority of workers in a workplace want it, employers have to recognise a trade union. More than 1,000 new trade union recognition deals have been signed since 1999. We also improved protection against unfair dismissal, with protection now kicking in after 12 months in a job instead of two years, and the maximum compensation has risen from £12,000 to £66,200.
The Opposition are committed to ensuring that trade unions operate within a strong legal framework. That means ensuring that strikes cannot take place without a properly conducted ballot, but the way in which the law has developed in recent cases is undermining the intention of the 1992 Act. In recent years, employers have successfully challenged ballots, not because there was any doubt about the view of the majority of those balloted, but because of minor technical non-compliance that had no impact on the result. It has created a lawyers’ charter, with the main beneficiaries being lawyers. It has encouraged employers to seek legal loopholes rather than get on with the real business of negotiating. The current situation is unsatisfactory and is undermining confidence in the law among trade union members. If trade unionists believe that the law is being used wrongly to stop lawful and democratically agreed activity, it is likely to lead to very considerable frustration and to encourage unofficial action, actions organised over the internet, and wild-cat strikes outside the law and outside democracy. That will help nobody.
In the recent BA dispute, one judge pointed out that the purpose of the legislation
“is not to create a series of traps or hurdles for the union to negotiate”,
but
“to ensure a fair, open and democratic ballot.”
The Appeal Court overturned an injunction that had been granted to the employer on the grounds that the requirements for strike ballots had been interpreted too narrowly. There is a clear need to restore the original intention of the 1992 Act, together with a minor extension to the original legislation to cover the sections relevant to the requirement to give notice to an employer before a ballot is held and to give notice before industrial action commences. This Bill provides an important opportunity for Parliament to consider these issues.
There may be more than one way to achieve the Bill’s objective. Although the Opposition recognise the need to restore the original intention of the 1992 Act, we cannot today endorse the particular legal mechanism proposed in this Bill. It would reverse the onus of responsibility to prove that the ballot would not have affected the result by placing the onus on the employer. I am very clear that an alternative would be to ensure that trade unions could establish clearly that minor errors that would not have affected the outcome of the ballot would not be the basis for legal action.
Although I am grateful to my hon. Friend for providing the opportunity for Parliament to debate this issue, further careful consideration should be given to the best way forward. It is of course the Government who must take responsibility for participating fully in—indeed leading—this debate. The law that both sides defend today was introduced by a Conservative Government. It is that law, working properly, that should be at the heart of the law governing lawful strikes. The Government must share the desire to ensure that we do not see any growth of illegal, undemocratic or unofficial strike action. I hope the Minister will indicate the Government’s willingness to respond positively to the issues raised today. Today we are discussing a private Member’s Bill, and it should be in the hands of the House to decide whether it should make progress.
Charlie Elphicke (Dover) (Con)
It is not my intention to speak at great length or to filibuster the Bill, but it does need legislative scrutiny. I take issue with the hon. Member for Hayes and Harlington (John McDonnell) who suggests that any desire to scrutinise, examine or otherwise consider this Bill is somehow reprehensible or wrong. After all, the Opposition spend most of their time doing that to Bills, and when we put pressure on them they roundly criticise us for not allowing proper scrutiny. It is right that this House should scrutinise Bills.
The new intake may be new, but we are not naive. We have been sent here to scrutinise legislation and to clean up politics. For many of us in the new intake, the behaviour of previous Parliaments and the disgraceful abuse of expenses were unacceptable, inappropriate and wrong. The disrespect to this House—including its symbols—by Members of the previous Parliament was inexcusable, inappropriate and wrong. To bring before this House a private Member’s Bill that is obviously controversial and highly partisan in nature is an outrageous and disgraceful thing to do. This day should be for legislation that will pass with the support of both sides of the House. It is wholly wrong and inappropriate to waste the time of this House by bringing before it legislation that will divide it. There are other issues that we could have been discussing today on which the House is united and agreed. I say to the hon. Gentleman that it is inappropriate, inexcusable and wholly wrong to do this to this House and the other Members who have legislation to be considered today. We could have been passing useful law today, but I do not think that that will happen. We could have been talking about matters that unite us, but for which there is too little parliamentary time.
I especially condemn the hon. Gentleman because not only does his Bill lack support on this side of the House, but—as we have just heard from the hon. Member for Llanelli (Nia Griffith)—it lacks support on his side of the House.
Mr Nuttall
That point is important. When I made my brief comments, I was not aware of Opposition Front Benchers’ stance, but I am not surprised because the Labour Government introduced the provisions in 1999 and therefore it is to be expected that Labour Front Benchers will stand by what they said. The provisions have stood the test of time and no one has sought to change them before now.
Charlie Elphicke
I agree with my hon. Friend, who makes a powerful point. The Bill is highly technical and seeks to change things that seem technical, but it has the support of no major party in the House. The Bill is also highly controversial in that it seeks to extend the right to strike, but in reality would extend only uncertainty and the getting of money by our legal friends—I used to be one, I regret to confess. We should not proceed in that way.
As a member of the new intake, I was driven to be here today at the request of several constituents, who wrote to me. One letter stated:
“John McDonnell’s Lawful Industrial Action (Minor Errors) Bill will have its Second Reading in the House of Commons on 22 October and I urge you to attend Parliament to ensure this takes place.
The Bill has been introduced in response to a raft of recent cases where courts have ruled”
as we have heard, and I will revert to that shortly. The letter goes on:
“These cases have meant British law now imposes fetters on unions in relation to ballots which are unprecedented in Europe”.
That piqued my interest. I thought that I had to respond to my constituent because, unlike Members of Parliament in former times, I believe in writing back to my constituents and taking an interest in that in which they wish me to take an interest. I am nothing if not a servant of my constituents.
I therefore read the Bill and the explanatory notes. Paragraph 6 of the explanatory notes, which, I believe, the hon. Member for Hayes and Harlington wrote, states:
“A number of recent judicial decisions have revealed a degree of uncertainty on the scope and application of section 232B—for example, in the meaning of ‘accidental’ in subsection (1)(b). The cases have also highlighted, among other things, that the section does not apply to errors, however minor, in the giving of notice under section 226A or 234A. It remains unclear where the burden of proof lies in the event of a dispute as to whether an error involves loss of the protection of section 219.”
Yet, as we have heard in the debate, the Bill creates a new uncertainty. Those provisions of trade union law have been in place for the past two decades and more, and they are well understood by the courts and the legal system.
Will introducing the new test of “substantial compliance” help the unions? I do not think so. It will help create uncertainty and it will help lawyers, but it will not help the trade unions. I say that as someone who is broadly a supporter of trade unions and their legitimate right to use their economic power to withdraw their labour if that is the collective democratic will. As a supporter in principle of the right to strike, I think that the Bill is wrong because it creates a new uncertainty where certainty had been garnered over time. As a supporter of trade unions, I think that the measure’s aim is wrongful; as a supporter of employers, I do not believe that their time should be taken up in instructing lawyers and coping with new uncertainty. They need some certainly for their business planning.
Is the Bill necessary? Paragraph 7 of the explanatory notes states:
“In May 2010 an interim injunction was granted by McCombe J in British Airways plc v. UNITE the Union on the basis of alleged failure to comply with the provisions of section 231 of the 1992 Act regarding information about the result of a ballot. The Court of Appeal… reversed that decision.”
It threw out the injunction. The explanatory notes continue:
“Smith LJ stated that ‘it appears to me very likely that the judge at trial would hold that there had been substantial compliance’”.
The explanatory notes cite a case as the mischief that necessitated the Bill, when it actually proves the opposite. Paragraph 7 goes on to say that in paragraph 149 of the judgment, Lord Justice Smith
“observed: ‘I consider that the policy of this part of the Act is not to create a series of traps or hurdles for the Union to negotiate. It is to ensure fair dealing between employer and Union and to ensure a fair, open and democratic ballot’… However, the other two members of the Court reached their decision on different grounds.”
The hon. Gentleman’s case is that a mysterious uncertainty remains over the effect of insubstantial errors on the operation of the ballot and notice provisions, but I think there is no such uncertainty. It seems to me that the Court of Appeal ruled fairly and squarely in favour of discharging that injunction. The mischief cited as a reason for introducing the Bill seems, when one gives it close examination and reads it with some degree of care, not to be a mischief at all.
Jacob Rees-Mogg
I would be extremely grateful if my hon. Friend, as a lawyer, explained to us whether the Court of Appeal’s decision is precedent-setting for future judgments.
Charlie Elphicke
My hon. Friend is absolutely right. Court of Appeal decisions, by our system of precedent, bind future decisions of that court and all lower courts. As I am sure he knows, only the Supreme Court can change and overrule a precedent. That is highly unlikely, and highly unusual in cases such as BA v. Unite.
Mr Nuttall
One real danger of the Bill is that the current set of established legal precedents would effectively become worthless. We would be back to square one, because new section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992 has not been considered by the courts.
Charlie Elphicke
I completely agree with my hon. Friend, who makes a strong, powerful point. The situation is that the hon. Member for Hayes and Harlington alleges an uncertainty that seems not to exist.
The Bill would seem on the one hand to reverse the burden of proof, and on the other to introduce a concept of substantial compliance that creates even more uncertainty. As a former lawyer, I know that the concept “substantial” is relatively well understood: it normally means 80:20. However, substantial compliance in the context of the Bill creates a further question. What is 80:20 in terms of compliance?
Mr Nuttall
Is my hon. Friend suggesting that 20% of members need not be consulted? Would that be regarded as substantial compliance under the Bill? That would be outrageous.
Charlie Elphicke
My hon. Friend makes a good point. What does substantial compliance mean? I am not sure. The hon. Member for Hayes and Harlington really should have drafted the Bill properly to include a proper definition of substantial compliance. That might at least have earned Labour party support, if not necessarily Conservative support. If before laying the Bill without any discussion he had worked with the Government, it might have been less controversial. He could have worked with his own party to produce something that could achieve the kind of consensus that there should be for private Members’ Bills.
Andrew Bridgen
The salient point is on substantial compliance. Imagine if in canvassing our constituents we were to “substantially comply” with a ballot by delivering papers only to the 80% of people we thought likely to vote in the direction we wanted. Would that be substantial compliance or democracy?
Charlie Elphicke
My hon. Friend asks a fair question. Would it be okay to have substantial compliance in electoral law? I have received letters from the Electoral Commission threatening all manner of prosecution if I do not comply completely with absolutely everything. Should politicians and campaigners only “substantially comply”? Must an employer substantially comply when it comes to dismissing a member of staff? I do not think so. That is not how employment law works. The rules on compliance are strict, and rightly so.
Jacob Rees-Mogg
It is extremely generous of my hon. Friend to give way once again. The concept of substantial compliance is desperately worrying, because if in a Division of the House we had had only to be substantially compliant on an 80:20 basis, the result could almost always be reversed.
Charlie Elphicke
I thank my hon. Friend. He makes a fair point. There are many cases in which there should be full and proper compliance—for instance, in an investigation by an employer into staff misconduct. An employer seeking to dismiss a member of staff should comply fully with all the procedures under employment law and employment practices, and likewise a trade union wanting to strike should be fully compliant with the procedures for all the notifications and other regulations that go with it. That is the right way to do things. It is not good enough to say, “Employers’ behaviour has to be perfect”—and politicians nowadays, we learn belatedly, have to be perfect, or at least try to do the right thing most of the time—“but it is okay for trade unions broadly to do what they like and not to comply with anything.” That seems to be the thrust of the argument put by the hon. Member for Hayes and Harlington.
To return to my central point, the hon. Gentleman knows that his argument will never have the support of Government Members. He might one day garner the support of the Labour party, but it will never have our support. I enjoin him to reconsider whether he really wants to put this Bill to the House, given that there are so many uncontroversial Bills that we could, and should, be discussing and putting to the House on which there is broad agreement. He should withdraw it on the grounds that it is wholly inappropriate for a controversial private Member’s Bill to be put to the House in this way, killing a whole load of other business. He knows that we have no option or choice, because of our philosophy and viewpoint, other than to oppose the Bill. Even the Labour party leadership takes the view that the Bill should not be supported. I therefore invite him to consider withdrawing the Bill.
Philip Davies (Shipley) (Con)
It is a pleasure to participate in the debate. I congratulate the hon. Member for Hayes and Harlington (John McDonnell) on getting off the blocks more quickly than anybody else and having his private Member’s Bill debated on the first available day. I am probably slightly more generous than my hon. Friend the Member for Dover (Charlie Elphicke) in that, even though I do not agree with the Bill, I think that the hon. Gentleman is perfectly entitled to introduce legislation that he feels is important to him and his constituents. However, I share my hon. Friend’s frustration that that means that more worthwhile private Members’ Bills could be sidelined today. That is extremely unfortunate.
I would say in passing, Madam Deputy Speaker, that although it is good to see you in the Chair, it was a great pleasure to see Mr Speaker in the Chair for the start of the debate. Recently, it had got to the stage when the Speaker was rarely seen on a Friday for private Members’ Bills, but his appearance today shows how important such Bills are to Parliament. I hope that you, Madam Deputy Speaker, will pass on my thanks to him for giving Fridays the respect they deserve by attending the start of the debate.
I was disappointed that the hon. Member for Hayes and Harlington and his hon. Friend on the Front Bench, the hon. Member for Llanelli (Nia Griffith), decided to take a novel approach to debates in the House by not wanting to take interventions. The House of Commons is not a lecture theatre but a debating chamber, and often during debates and through interventions we can tease out the strengths and weaknesses of legislation. I hope, therefore, that that trend will not be repeated in future weeks and debates on private Members’ Bills. I found the opportunity to intervene, and the reply given was actually quite informative, so I say to the hon. Lady that taking interventions in a debate is to be commended, because it allows us to tease out the issues.
Mr Nuttall
Had interventions been taken, we might have got on a lot more quickly this morning, because we could have got answers to some of the questions I raised. Instead, we were left hanging in the air. Had the hon. Member for Hayes and Harlington (John McDonnell) taken one or two interventions, we would not be in this position, because he would have been able to deal with those matters straight away.
Philip Davies
I tend to agree with my hon. Friend. As it happens, I am a fan of the hon. Member for Hayes and Harlington, who is a great parliamentarian. However, it was rather uncharacteristic of him to make it abundantly clear at the start of his speech that he did not want to take any interventions. My hon. Friend pointed out that he had not provided a definition of substantial compliance in the Bill, which made it all the more unfortunate that the hon. Gentleman started by saying that he did not want to take any interventions, and woe betide anyone who tried to intervene—that was the gist of his starting point—because otherwise we might have been able to ask him what he thought substantial compliance meant. That might have shed some light on the matter.
Andrew Bridgen
Is not the reason why the hon. Member for Hayes and Harlington (John McDonnell) did not take any interventions in his opening statement that he did not have any answers to the interventions that were coming? As we have shown today, this Bill has more holes in it than a Swiss cheese.
Philip Davies
There may be an element of truth in what my hon. Friend says. The hon. Member for Hayes and Harlington tried to describe the Bill as a simple and non-contentious piece of legislation that, really, nobody could possibly quibble with, and it was helpful to him in presenting that case not to take any interventions, so that none of the flaws in the Bill could be exploited.
Nick de Bois (Enfield North) (Con)
Perhaps the hon. Member for Hayes and Harlington (John McDonnell) regarded his view—and his view alone—as substantive and sufficient grounds to go along with the Bill. I think we have demonstrated that that is not necessarily so wise.
Philip Davies
My hon. Friend is right. One of the things that I have learned in my short time in Parliament is that those on the Labour Benches tend to be very intolerant of anybody who holds a different opinion from theirs. I do not think that is particularly sensible in a parliamentary democracy.
It is a great pleasure to follow my hon. Friends the Members for Dover and for Bury North (Mr Nuttall), who both made tremendous contributions to this debate. I particularly want to commend my hon. Friend the Member for Bury North on his bravura performance in filleting the Bill and pointing out its many flaws, which hon. Members on both sides of the House were perhaps not aware of until he made his contribution. When I was first elected to this place, my mentor in Parliament was the late, great Eric Forth, the former Member for Bromley and Chislehurst. It is fair to say that he will be smiling down on us after the performance that my hon. Friend has given today, in the knowledge that his memory lives on in another guise. My hon. Friend should be extremely proud of the contribution that he has made to this debate.
As it happens, I perfectly understand the frustration felt by the hon. Member for Hayes and Harlington and his motivation for bringing the Bill forward. On the face of it, I understand why some trade unionists in the cases that he identified—he quoted a couple of cases that were illuminating, and I want to touch on that later—felt that although a substantial majority were in favour of strike action, they had been thwarted by their employers through the courts on a technicality. His Bill is an attempt to deal with that problem, and I certainly understand his motivation. However, I think that he is misguided, for a number of reasons, and I want to explain why.
I want to start by simply looking at the Bill from the hon. Gentleman’s perspective of wanting to do the best for his friends in the trade unions, by trying to enable them to pursue strike action more readily when they feel that it is in their interests to do so. The first reason is the one that my hon. Friends the Members for Dover and for Bury North both mentioned, which is the fact that we are now getting some clarity in the original law. Given that the hon. Gentleman has received a favourable verdict from the Court of Appeal, it seems bizarre that he should want to rip up the law that delivered that favourable judgment and start all over again. I hope that, when he sums up the debate, he will explain why he does not accept the favourable judgment of the Court of Appeal, and why he wants to start all over again, with all the uncertainty that that brings. I cannot see any logical reason for doing that. Perhaps his decision to introduce this private Member’s Bill was made before the Court of Appeal’s verdict, in which case perhaps he might wish to reflect on whether it is now surplus to his requirements.
I do not believe that the Bill addresses the frustrations of the trade unions. The problem in some previous cases has been the wording of the law, and its interpretation, but the law does not need to be completely ripped up. It simply needs clarification or very minor tweaking. My hon. Friend the Member for Bury North pointed out that the current legislation requires unions to provide employers with notice of ballots on industrial action, and to provide exact numbers, workplaces and categories of those to be balloted and their addresses. It also states that any errors must be
“accidental and taken together are on a scale which is unlikely to affect the result of the ballot”.
That is the law as it stands.
As we have rather helpfully teased out in the debate, the existing law does not state that the errors should be accidental or on a scale unlikely to affect the result of the ballot. I think that this is the point that the hon. Member for Hayes and Harlington was trying to make. He and the unions seem not to like the fact that the existing legislation provides for the fact that the errors must also be accidental. All the focus has been on the fact that mistakes were on a scale unlikely to affect the result of the ballot and that the strike action should have been allowed to continue on that basis alone. He did not seem to like the fact that court was also including the test of whether the mistakes were accidental, as the law currently requires. We can argue about whether that is a good idea, but I suggest that he would be far better off simply making a small amendment to the existing law, replacing the word “and” with the word “or”. That would appear to solve his problem.
I do not particularly agree that we should change the law in that way, because I believe that the current provision is a good one, but from the hon. Gentleman’s perspective, he needs only to make a very small change to deliver what he and his trade union want. It would be much more sensible and simple for him to go down that route.
Charlie Elphicke
Picking up on that point, I would not want the House to think that I intended any personal disrespect to the hon. Member for Hayes and Harlington (John McDonnell), who has brought the Bill to the House with the noblest of intentions. My frustration, as a new Member, is that we might lose the rest of today’s business because we cannot vote against this measure in the way that should be possible. I put it to my hon. Friend the Member for Shipley (Philip Davies) that the previous Government did not always listen to the hon. Member for Hayes and Harlington or give him the respect that he deserves, and I hope that the new Government will listen to his proposals in greater detail, and not simply knock them out of court, so that they can be adopted and bring new clarity and certainty to trade union law.
Philip Davies
I am grateful to my hon. Friend for his intervention. Anyone who knows him will know that he would never intend any discourtesy to anyone, and I had certainly taken that as read, but I am sure that the hon. Member for Hayes and Harlington will be grateful to him for that clarification. My hon. Friend certainly did not need to explain that to me, however; knowing him as I do, I know that he would never be discourteous to anyone on either side of the House.
There are simpler ways for the hon. Member for Hayes and Harlington to pursue his campaign, although I would not necessarily endorse them. Part of the hon. Gentleman’s frustration is not to do with the law as it stands. How could it be? As we have explored, the Court of Appeal agreed with his particular standpoint. He cannot therefore have any quibble with the law as it stands. I think the hon. Gentleman’s real quibble is with judges who grant injunctions and the basis on which they do so.
The hon. Member for Hayes and Harlington certainly needs no advice from me—neither does anybody else for that matter—and I am sure that he will not take it, but I am certainly prepared to give it to him free of charge. My suggestion is that he start a campaign around the whole issue of judicial injunctions. What tends to happen when people seek an injunction from a judge—not just in this case, but in other cases, and we often see it in libel or privacy law—is that everything happens very quickly. That is why people seek an injunction—because something is about to happen very quickly. It might be a strike action within a day or two, or a story being printed in a newspaper that is going to have very damaging effects on somebody’s reputation. That is why an injunction is sought at very short notice.
On what basis should a judge be able to grant an injunction? That is the issue. Let me deal with what happens when people seek injunctions. I feel rather nervous about making these points when I am surrounded by so many esteemed people from the legal profession. As a non-lawyer, however, let me clarify my observation of what happens. Because something is going to happen that could have a devastating effect—on a business, on customers or on somebody’s reputation—judges are, in effect, risk-averse. If something is about to happen—an article to be published, a strike to take place—and there is some uncertainty over the law, a judge cannot go back and change the law to stop it happening. What judges quite understandably do is to take a risk-averse view. They feel that the law might need some clarification and it is not entirely clear whether something is legal or illegal, so they adopt the risk-averse option of granting an injunction on the basis that a court can overturn the injunction later. If an injunction is not granted, something cannot be stopped from happening after it has happened. That is why I think the hon. Gentleman might want to pursue the whole area of injunctions and the level of proof or certainty judges need before they can grant them. I believe that that would help his side of the argument; it would certainly be more helpful than promoting this Bill.
Mr Nuttall
Let me explain why my hon. Friend’s point is a good one. When asked to grant an interlocutory injunction, the courts will by definition have to act very quickly, as he says. They do not have the time to consider all the evidence in detail, so if there is a prima facie case to grant an injunction, they will grant it—without looking into the merits of the case. My hon. Friend is quite right about that. This is perhaps the root cause of the Bill and the real concern that it addresses.
Philip Davies
I am sure that my hon. Friend is right. He got rather technical during the course of that intervention, at which point it went beyond my capabilities. The bit that I understood, however, I certainly agreed with. Knowing my hon. Friend as I do, I am sure that I would have agreed with the bits that I did not understand. I therefore commend whatever my hon. Friend said to the hon. Member for Hayes and Harlington who, having a greater intellectual capacity than me, will have understood everything that my hon. Friend said.
Charlie Elphicke
One oddity about injunctions is their application to Members of Parliament. They are very hard to enforce, given the freedom from civil arrest that we enjoy. Does my hon. Friend agree?
Philip Davies
I am being tempted by people who are more expert in the law than I am to comment on matters that they know far more about than I do. My hon. Friends can take it as read that I agree with them on any matter with regard to the law, because they are in a far better position to argue their case than I would be.
I am still warming to my theme of how the intentions of the hon. Member for Hayes and Harlington can better be advanced. His supporters in the trade union movement also take exception to the definition in legislation of “accidental”. We can all probably accept the definition of making a difference to the result. If a certain number of ballot papers were affected, all of which voted one way, but the result would not have changed, the wording in the current law of,
“on a scale unlikely to affect the result of the ballot”
is perfectly clear. From that starts the frustration.
The issue is the “accidental” point. If the hon. Gentleman attacked that problem, as he sees it, by instilling some definition of “accidental” in the Bill, his supporters might find that a more fruitful way forward. In the case of BA, which he quoted most during his speech, the judge, summing up his ruling to grant an injunction, said:
“I do not consider that there is evidence capable either of establishing that UNITE held a reasonable belief in the entitlement to vote of all its members, or enabling it to rely on an ‘accidental failure’ within section 232B.”
The point that Unite was making was that any failings in its ballot were unintentional, and that that met the definition of “accidental”. The judge said in his conclusion:
“In my judgment, an unintentional failure, as it was categorised by”—
Unite—
“in the circumstances of this case, cannot be regarded as an accidental failure within the meaning of that section, even applying a purposive construction to its provisions.”
Therefore, the problem for Unite was that it did not get over the first hurdle of “accidental”. The problem was not, as the hon. Gentleman said, in relation to the test of
“on a scale unlikely to affect the result of the ballot”—
the judge did not even get to that—but that, as far as the judge was concerned, Unite had not got over the “accidental” hurdle. The hon. Gentleman’s unhappiness with the existing legislation can be only with the definition of “accidental”. If he wishes to move things forward, from his perspective, I suggest that he do so by instilling a definition of “accidental” that meets his requirements.
Mr Nuttall
My hon. Friend makes the point, which was touched on earlier, that the way around the problem, with which the judge had to deal when considering the case, relates to the current provision’s use of the word “and”. If the Bill were to introduce the word “or”, one could easily understand the rationale for it.
Madam Deputy Speaker
Order. I think that the hon. Member for Shipley (Philip Davies) has already made that recommendation about how the Bill could be better drafted. We might be repeating the point.
Philip Davies
It is a red letter day for me, Madam Deputy Speaker, because I have just found out that you were listening to my speech.
Madam Deputy Speaker
Order. May I say, Mr Davies, that I listen to every Member of the House’s speech, and I particularly listen when you are speaking. As you are such an accomplished parliamentarian, it behoves the Chair to concentrate.
Philip Davies
You are very kind, Madam Deputy Speaker. It really is a red-letter day now. I shall put that in the literature I will distribute at the next election. However, what surprised me was not just that you were listening to my speech, but that anyone was listening to it. I am afraid that my experience is usually otherwise.
I hope that the hon. Member for Hayes and Harlington will accept at least some of my suggestions of alternative ways in which to promote his side of the argument.
Jacob Rees-Mogg
I too have been listening to my hon. Friend’s speech with great interest. Does he believe that the Bill could be amended in Committee, or does he think that we should vote it down and kill it off as early as possible?
Philip Davies
I am grateful to my hon. Friend. I hope that I shall have the pleasure of listening to his own speech today, because I enjoy his speeches immensely.
I intend to develop this point further, but my direct answer to my hon. Friend’s question is that I believe we should vote against the Bill. I do not think that any of my suggested alternatives could be incorporated into an amendment, because the Bill goes off at a tangent to them.
At the beginning of his speech, the hon. Member for Hayes and Harlington said that, although others might perceive flaws in the Bill, it should proceed straight to Committee, where any such flaws could be ironed out. That strikes me as an argument for never giving a Bill a Second Reading. As my hon. Friend the Member for Bury North helpfully pointed out, the Bill has two clauses, and given that both appear to contain flaws, I do not think that amending them in Committee is an option. We should try to vote them down and start again from scratch. The fact that I have given advice to the hon. Member for Hayes and Harlington does not mean that I would agree with any of the amendments that I have suggested should he introduce them; I merely think that they would help him to deliver what he wants to achieve.
In deciding whether to approve the Bill, we must also decide whether it is necessary. It was, I think, my hon. Friend the Member for Dover who suggested that it was a solution looking for a problem. I hope that when he sums up his argument, the hon. Member for Hayes and Harlington—with his court verdicts in the bag—will tell us what problems the Bill solves, because all the evidence that he gave earlier involved problems that have now been cleared up by the Court of Appeal. It would be helpful if he told us about any current problems of which he is aware, because it seems to me that the Bill is wholly unnecessary.
Charlie Elphicke
Does my hon. Friend agree that the errors in the Bill, although themselves minor, prevent us from supporting it today, and that we should enjoin the hon. Member for Hayes and Harlington to work positively with the Government to find a way of dealing with his concerns? That would enable the trade unions’ own concerns to be taken on board properly, would enable us to vote on them properly if it were found that the law needed to be changed, in Government time, and would ensure that account was taken of any merits in the hon. Gentleman’s argument. His Bill might then actually hit the statute book.
Philip Davies
I am sure that my hon. Friend is right. As it happens, I am content with the law as it stands. I shall be interested to hear what the Minister has to say. I do not know what he will say and I do not want to pre-empt it, but I hope he will say that the Government have no intention of changing the current law, because, as the court has ruled, it is perfectly adequate. I am sure that the Government will always work closely with any Member if they feel that an injustice needs to be corrected, but I am not sure that that is the case in this instance.
Mr Nuttall
On 21 June 2010, the BBC carried a report headlined “Government shuns call to change strike laws”. The report said the Government had indicated that there were “no plans” for alterations in the law on industrial action. That might help my hon. Friend. It will be interesting to see whether the Minister has changed that position.
Philip Davies
That is helpful and I am grateful to my hon. Friend for his intervention. Knowing the Minister as I do, I am sure that his position has not changed in the short time since then, because he is a very solid chap who would not change his mind so loosely and so quickly. Therefore, we need not worry about that, but we will listen with interest to what he says.
It is important to note that the original legislation that the Bill tries to change—the Trade Union and Labour Relations (Consolidation) Act 1992—gave protection to trade unions; it was not anti-trade union. Some of its provisions protect the rights of workers in a union that takes action, if necessary by striking, to defend and support their interests when reasonable notice is given and in contemplation or furtherance of a trade dispute. The Act protects the rights of workers to organise in or leave a union without suffering discrimination or detriment. It also defines trade unions and states that they are subject to legal rights and duties. It provides a framework for unions to engage in collective bargaining for better workplace or business standards with employers, so the thrust of the legislation already on the statute book should be welcomed by Opposition Members.
On the proposals of the hon. Member for Hayes and Harlington, the Institute of Employment Rights states that the purpose and effect of the Bill is to ensure that small accidental failures in ballots will be disregarded. I am not entirely sure that that is entirely the case, because my understanding of the existing legislation is that it does just that—it provides that small accidental failures in ballots will be disregarded. That is the wording of the existing legislation. The hon. Gentleman is trying to change it so that, so long as unions have demonstrated substantial compliance, such failures will be disregarded.
In passing, I wonder about the titles of Bills, because they often seem to contradict completely their supposed purpose. For example, the Equality Bill was about all sorts of things but it certainly was not about equality. The Bill that the previous Government introduced to restrict jury trial should have been called the “We think the public are thick Bill”. We should have some honesty about what Bills are trying to do. This Bill is called the Lawful Industrial Action (Minor Errors) Bill, but it seems that it is not trying to stop minor errors being taken into account, as the law already does that; it is trying to allow unions to be able to make some major errors in the ballot and have those disregarded, too. If the hon. Gentleman ignores all my earlier advice, which I am certain he will do, and brings back the Bill at another date, if he does not manage to get it through on this occasion, I will ask him for the sake of clarity to change the title to the Lawful Industrial Action (Major Errors) Bill because then we might have a better idea of what we are dealing with.
The Institute of Employment Rights also claims that minor errors in the information about the result of the ballot will be disregarded and forensic examination of procedures will end. That will worry people. The institute says that the forensic examination of procedures of unions carrying out their ballots will end and be replaced just with the concept of substantial compliance. I am not sure that the hon. Gentleman is renowned for having a laissez-faire attitude to things, but he certainly has a laissez-faire attitude to the running of ballots if he does not think that forensic examination of the procedures involved in the running of a strike ballot should be taken into account.
As we have heard, the burden of proof in injunctions will shift in that evidence will be required that substantial compliance has not taken place. How on earth can we expect the employer to carry out that burden-of-proof task of saying whether or not a union ballot was substantially compliant? Others have made that point, but it has to be emphasised because, clearly, only the union itself can demonstrate whether the ballot was substantially compliant. How on earth can the employer make that decision when they have had no control over the running of it and do not have the necessary information? In the speech of the hon. Member for Hayes and Harlington? I heard no explanation of how on earth an employer could be expected to do that. I suspect that that is because the hon. Gentleman knows that the employer could not possibly do it, and that therefore this is a tactic to ensure that the employer will never be able to stop any kind of strike action because they will never be in a position to do so. I hope that in his summing up the hon. Gentleman will give some examples of how he thinks employers would be able to demonstrate clearly that a ballot has not been substantially compliant.
Even though the original legislation was passed in 1992 by a Conservative Government—for the purposes that I have outlined—it was amended twice by the previous Labour Government, in 1999 and in 2004, and, as my hon. Friend the Member for Bury North (Mr Nuttall) made clear, the provisions the hon. Gentleman does not like were supported by his party when it was in government. I have not researched this, and I would not want to embarrass anybody in particular, but I certainly hope the hon. Gentleman did not at that time vote for those proposals in a Bill that he must have thought was completely unacceptable. It would be interesting to discover how many of the Members who voted for it in 1999 are today up in arms and complaining that this is an unacceptable piece of legislation, because they seem to be complaining about their own legislation.
The Labour Government amended the legislation twice, therefore: in 1999 and again five years later. They had acquired five years of evidence of the workings of the legislation before they changed it for the second time, yet they did not take the opportunity to introduce the change the hon. Gentleman proposes. I can only presume that they did not do so because they thought the legislation was working perfectly well, and I venture to suggest that the situation is the same now.
The unions also argued in their earlier court cases that the current legislation was contrary to article 11 of the European convention on human rights. I am not a lawyer—and I am certainly not a human rights lawyer as I do not like the Human Rights Act and I would like it to be scrapped—so I do not know whether the unions are right. However, if the hon. Gentleman thinks the existing legislation is incompatible with that convention, his union members can take their case to the European Court of Human Rights. If he is right, they are therefore already protected in law. If he and the unions are absolutely certain that it contravenes the European convention on human rights they do not need to change the law through this Bill as they can be safe in the knowledge that the convention, which we are signed up to and which is enshrined in our legislation through the Human Rights Act, is in place.
It needs to be made clear at the outset that this Bill has some vehement opponents, ranging from think- tanks and the esteemed Mayor of London to the CBI. I believe that it was my hon. Friend the Member for Dover who said we are relying on business to get us out of the financial mess that we are in. We need the private sector to be flourishing, so we should take note of what it says with great interest. All those opponents argue that the balance of power between trade unions and employers has shifted too much towards the unions over the past 13 years. That touches on a point made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who said that perhaps we ought to be looking not at giving further powers to the trade unions and shifting the balance even further towards them, but at whether or not there should be greater regulation of the industrial action that is causing so much damage to our economy. He asked whether we should be considering that, rather than making such action easier.
The points that the hon. Member for Hayes and Harlington made seemed to suggest that his Bill was based on two cases. I could mention other cases, but I do not wish to detain the House unduly by going through all of them at length, as that would be unnecessary. The two cases that his remarks concentrated on were Network Rail v. RMT and British Airways v. Unite. I just want to touch on those cases and the reasons why they are not a good basis on which to introduce this Bill.
Mr Nuttall
I just want to clarify things so that we are talking about the right judgment. There are two cases with the same title and the only way of differentiating them is by the name of the judge involved, so is the British Airways case that my hon. Friend is referring to the one dealt with by Mrs Justice Cox, which I believe was the first one, or the second case, which came before Mr Justice McCombe? Will my hon. Friend be discussing both cases or just one?
Philip Davies
I am grateful to my hon. Friend, who is, as ever, on the ball. He has just demonstrated to the House how knowledgeable he is on these matters and he rightly says that there are different cases. Either case makes the point, but I am sure that the House will be happy to benefit from his expertise on both if the need should arise and there is any further confusion. I believe I am right in saying—he will correct me if I am wrong—that in the case of Network Rail v. RMT the dispute was largely over safety. So far as I can tell, the case was not about an employment matter, because the signallers were not subject to any proposals for staff redundancies—it is not as if their jobs were being threatened—and the RMT was complaining about a safety issue.
The hon. Member for Hayes and Harlington gave the impression, to me at least, that these cases were clear-cut victories for the unions in terms of their recommendation for a strike and that there should be no impediment to that democratic process being applied. I have to take issue with that initial premise, because the result of the ballot in the case of Network Rail v. RMT was that 3,199 votes were cast, 1,705 of which were in favour of strike action and 1,481 of which were against, with 13 spoiled papers. Therefore, the majority was just 224. I do not know whether or not my hon. Friends would say the same, but I was not originally given the impression of that margin of victory in the speech made by the hon. Member for Hayes and Harlington. He seemed to imply that there had been an overwhelming vote for strike action.
Before we get on to the niceties of why the unions fell foul of the law and why it is right that they fell foul of the law, as it stands, we must take into account—I think that the law should take this into account—the effect of strike action, if it were to go ahead, on the employer, on the economy and on the general public. That should be a factor in determining whether an injunction is granted. If it is going to have a disproportionate effect, we would want the judiciary to be risk-adverse in deciding whether to grant an injunction.
According to Network Rail, the cost of the strike action would have totalled about £20 million. That is a substantial amount of money and it was perfectly right that a judge should insist that everything was done rightly and properly, all above board, before action with such a financial impact on a business—on the taxpayer, I might add—was proceeded with. In the court papers, Network Rail claimed—the RMT did not dispute this, so we can safely say that we are on firm ground—that the strike action would have had the effect of preventing 80% of all rail services in the UK from running. That would have had not only a devastating effect on Network Rail as an industry but a massive effect on many employers, businesses and people who rely on getting about by rail to fulfil their daily duties.
The hon. Member for Hayes and Harlington might think that the RMT had a perfectly legitimate complaint against Network Rail that Network Rail was being irresponsible. That might or might not be true, but I am not entirely sure what grudge the RMT has against businesses, commuters and shoppers up and down the country, who would have been negatively affected by that action. I am not entirely sure why they should be penalised for any actions by Network Rail that the hon. Gentleman disagrees with, but that is the impact that the strike action would have had. The RMT union did not dispute that in the court case. It is perfectly proper that a judge should consider the impact on other people when bearing in mind whether to grant an injunction. Network Rail made it clear that a strike would have caused immense damage to the economy, to businesses that depend on rail for freight or transport, to commuting workers and to a great many individual rail users.
Nick de Bois
I thank my hon. Friend for being so generous in giving way. In effect, we have a situation in which every cause will have an effect. My hon. Friend outlines admirably the fact that in this case, if the processes are not followed and a strike subsequently takes place, many people outside the immediate target of the strike action are affected. They have no recourse. They have nowhere to go. When I was running my company, we were in the unfortunate position of having to make a small number of redundancies. We had to go through—and rightly so—a strict but nevertheless somewhat burdensome process and, as a result of a minor technical error, there was the right for redress for those involved. It strikes me that in this situation, the process should be adhered to as strictly as possible because there is no form of redress for those outside the immediate consequences of the action. Does he agree?
Philip Davies
I very much agree with my hon. Friend. I know that he is a great advocate for rail commuters in his constituency—he has even had Westminster Hall debates on the problems that his commuters face. He is a great champion for his constituents and I agree with him. This is a very interesting point. If the hon. Member for Hayes and Harlington wants to make it easier to have strike action, perhaps, as a quid pro quo, he might consider what my hon. Friend the Member for Enfield North (Nick de Bois) says and introduce into his Bill a provision that some statutory consultation must take place with all affected parties before any strike action, so that people can understand the full consequences of that action. It might well be that when a union decides that it wants to go out on strike because of a grievance with a particular employer, it does not take into consideration the wider impact it will have on innocent third parties who are no part of the dispute at all. My hon. Friend makes a very good point—perhaps that is an anomaly that should be addressed in legislation. I hope that the Minister was listening carefully to his intervention, because he is in a far better position to do something about that than I am. It is certainly worth considering.
Mr Nuttall
I am not sure that my hon. Friend has picked up on exactly the right point. I thought that my hon. Friend the Member for Enfield North (Nick de Bois) was making the point that if the novel concept of substantial compliance is introduced with regard to the balloting procedure for industrial action by trade unions, surely it would be right, fair and sensible to introduce a similar provision in the legislation relating to redundancies. Has my hon. Friend the Member for Shipley (Philip Davies) had any representations on what the unions would think if that were the case—if an employer needed only to comply substantially with the law when making people redundant?
Philip Davies
My hon. Friend makes a good point. He turns the argument on its head: he says that rather than giving unions more arduous responsibilities so that they have to meet the same demands as employers, perhaps employers should be given the liberty to take the more flexible approach that the Labour party clearly wants to give to trade unions. Whichever way we consider it, it is perhaps unarguable that they should both be subject to the same treatment.
My hon. Friend is right to concentrate on substantial compliance, because it is, in many respects, a nonsensical concept to introduce into law. Virtually anybody could claim, when they flouted the law, that they were substantially compliant with it. If we extended the concept right across the criminal justice system, we would probably find that nobody could ever be found guilty of anything, because they could easily demonstrate that they were substantially compliant with the law—they had broken just one part of it. The hon. Member for Hayes and Harlington should go back to the drawing board and think again about whether he wants to introduce the concept of substantial compliance in law.
Let me come back to the point that I was making about the impact that the strikes would have had if they had gone ahead. Three million passengers and freight users would have been affected, and the strike would have coincided with the first day back at work after the Easter holidays. That would have had a devastating impact. It is true to say that Network Rail had a robust contingency plan in place, but this comes back to the point that my hon. Friend the Member for Bury North (Mr Nuttall) made about the importance of giving notice to employers, so that they have an opportunity to mitigate the worst impacts of strike action.
Even with that robust contingency plan in place, Network Rail could have run only approximately 4,500 trains on the day of the strike action; the normal figure is 24,000. We are talking about 20% of the service running, and 80% not running. Some of the most important lines into the capital would have run at just 11%. That would have had a devastating effect on the economy of the country, and it is right that judges take that into consideration.
Turning to why the injunction was granted by the courts, as my hon. Friend the Member for Bury North said, minor errors are already covered by the existing legislation. I have already outlined the relatively narrow margin of victory in the vote for strike action. Most people would consider some of the errors to be not minor at all; I think that some people would consider them to be rather more major. Network Rail successfully argued that there were serious errors made in the balloting of members. For example, 11 signal boxes that no longer exist were balloted, including East Usk in Newport, Gwent. The RMT balloted it to gather the votes of six registered voters, although it had burnt down in a previous year. That is not a minor error—it is quite a serious error.
Mr Nuttall
I have to come back to this point: bearing in mind that the Bill also seeks to transfer the burden of proof to the employer, if the union does not know where its own members are employed, it is a bit rich to turn the law around and expect employers to do the job that we are talking about. In the case that my hon. Friend mentions, even the trade union could not get its notices sent to the right place.
Philip Davies
That is a fair point, and one might legitimately ask the RMT how close it is to its members when it balloted a signal box that burnt down years ago. It does not give one much confidence that the union has a close working relationship with its members.
People may forgive the RMT for not knowing that the signal box at Pelham in Lincolnshire was demolished in 2008 or that the signal box at Ascot in Berkshire was closed in October 2009. People might ask how the union could be expected to know these things—although I would presume that it should know. However, it is surely difficult for it not to be aware that the signal box at Chalford in Gloucestershire closed down in 1966. One would have thought that the union would have been aware of that. Nor should it have overlooked the fact that the signal box at Northallerton in North Yorkshire closed in 1980. I personally think that those are rather serious errors, not the minor errors that the hon. Member for Hayes and Harlington suggests when he uses the case as a reason why the law should be changed.
The problems were not confined to signal boxes that were closed down 44 years ago. In 67 locations, the number of RMT members balloted exceeded the total number of employees. I do not know what the rate of union membership is among the staff of Network Rail, but I would be astonished if it were more than 100%. But that is what the RMT seems to think. A further 26 places, with up to 100 employees, were missed out completely, including the key signal box at Rugby. As we have heard, the difference in the vote between those who voted for strike action and those who voted against was 224. It is therefore difficult to argue that the examples that I have given—of the balloting of signal boxes that had burnt down or been closed, of ballot returns of more than 100% and of the failure to ballot some locations—were not material factors that should have been taken into consideration. Those are substantial errors that could have made a material difference to the result.
Jacob Rees-Mogg
It occurs to me that if the Bill were enacted and then used too widely, it would allow malevolent people to use it to push through something against the will of their members and then claim that only minor errors had been made. That would be a slippery slope.
Philip Davies
My hon. Friend is right, and we should guard against that. I do not think that the hon. Gentleman wants to exempt minor errors, which are already protected. He wants to exempt major errors from the scrutiny of the courts and we should be very wary of doing that.
In 12 locations, there were no operations staff and workers were clearly ineligible to vote—
Andrew Bridgen
I thank my hon. Friend for being so generous in giving way in this most interesting debate. Does he agree that the Bill is not merely a Trojan horse but a wolf in sheep’s clothing, and an attempt to legitimise electoral errors—I am being generous in calling them “errors”—that would disgrace a banana republic?
Philip Davies
My hon. Friend is right. That is why I am so disappointed that the hon. Member for Hayes and Harlington made it abundantly clear from the outset that he did not want to take interventions. He has left the impression—rightly or wrongly—that he was trying to portray a small change in the law to clear up a small anomaly, and that no one could argue with that because it was all common sense. However, when one gets to the nitty-gritty—
Mr Deputy Speaker (Mr Nigel Evans)
Ideally, I would like to hear from the Minister before I accept that motion. I understand, Mr Davies, that you have been entertaining the House for 59 minutes. It is a red letter day for all of us, and we are clearly gripped by everything that you are saying, but if you are now able to bring your remarks to a close so that the House can be informed of the Government’s position on the Bill, I would be extremely grateful.
Philip Davies
I think that that is a sensible way forward, because we all want to hear what the Minister has to say. I will toss away the Network Rail arguments if you will give me permission, Mr Deputy Speaker, to touch on the British Airways dispute, because the hon. Member for Hayes and Harlington spoke about that most of all.
The hon. Gentleman made it clear that the errors that were made may not have made a material difference to the result of the ballot in the BA dispute, but they were clearly not deemed accidental. We should have some protection in law for employers who face strike action by people who have not followed what the law requires of them. The law is not particularly onerous. As my hon. Friend the Member for Bury North said, many strikes take place throughout the country every year—far too many already happen. It is not difficult for people to take strike action. All we expect is that people fulfil their obligations under the law. In the BA v. Unite case, it is perfectly clear that the judge who granted the injunction felt that the errors were not accidental, that Unite should have known or did know about them, and that they should not be deemed minor.
I will conclude to follow your will, Mr Deputy Speaker. I am afraid that the House will have to miss out on the rest of my contribution. [Hon. Members: “Shame!”] I am very grateful to my hon. Friends. I urge all hon. Members not to consider only the simplistic side of the debate and the opportunity that the hon. Member for Hayes and Harlington offers to clear up a small technicality, but to bear in mind the massive impact that the Bill would have on employers and the paying public throughout the country—those who rely on our services. The Bill will be hugely damaging at best. However, even from the hon. Gentleman’s perspective, it is unnecessary and does nothing to help trade unions.
The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Mr Edward Davey)
I congratulate the hon. Member for Hayes and Harlington (John McDonnell) on coming first in the ballot for private Members’ Bills. The Bill gives us a chance to debate an important and topical subject—industrial action law. That issue is receiving wide attention in the media. As hon. Members know, some organisations, including the CBI and the Policy Exchange think-tank, are calling for that body of law to be strengthened, and we heard those voices loud and clear in the debate today. Of course, that is the exact opposite of the effect that the hon. Gentleman wants to achieve through the Bill.
It is not the first time in recent years that the hon. Gentleman has presented a private Member’s Bill. A couple of years ago, he tabled the Trade Union Rights and Freedoms Bill, which also centred on industrial action law. I commend him for his determination and consistency of purpose. He has a justified reputation in the House as a doughty defender of trade unions. His knowledgeable and often impassioned contributions to our debates show his deep commitment to that cause. That commitment does him credit, even though many in the House, including some of his hon. Friends, do not always share his views.
If my memory is correct, the last Bill the hon. Gentleman introduced included proposals for root-and-branch reform of strike law. For instance, it contained provisions to restore the lawfulness of secondary industrial action and to repeal the requirement on trade unions to provide notice to employers in advance of industrial action. He presents his current Bill as a modest measure in comparison—it is undoubtedly more modest than his previous Bill, which I suspect was rather closer to his heart and true beliefs than this one—yet modesty is often in the eye of the beholder. Saying that this Bill is more modest than his last does not make it so, despite its seductive title.
The Bill is admirably short—just two clauses. It works by changing section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992. However, as I shall demonstrate in my speech, the Bill is not so modest as it appears at first sight. In fact, it would have the effect of altering the applications of about 15 other sections of the 1992 Act. In some cases, it would significantly relax the procedures that trade unions must follow when organising industrial action—something which the previous Government considered and rejected.
In the hon. Gentleman’s opening remarks, he made one or two points that the House ought to consider more carefully. He argued that his Bill tries to achieve the original intention of section 232B by applying it to all 15 sections of the 1992 Act, but that is wrong. Section 232B is clearly drafted so that it applies to just four sections of the 1992 Act. Parliament did not therefore intend that it should apply as widely as he suggests, and it is important that hon. Members hear that argument.
The hon. Gentleman referred to a number of court cases, but it is worth reminding the House that in recent times, the trade unions have been the ones scoring wins in the courts—many of my hon. Friends referred to such cases. For example, the Court of Appeal ruling in BA plc v. Unite this year, to which my hon. Friend the Member for Dover (Charlie Elphicke) referred in some detail, found very strongly for Unite and rejected the employer’s argument. In Milford Haven Port Authority v. Unite, the Court of Appeal again found for the trade union. In a third case this year—Metrobus v. Unite—although the Court gave an injunction against the trade union, it dismissed many of the employer’s arguments with respect to notices, saying that the errors were small and should therefore not be considered.
The case law that has amassed this very year suggests that the concerns of the hon. Member for Hayes and Harlington are not based on what is true. I strongly urge Labour Members to think carefully about the fact that real case law developments are helping trade unions. The hon. Gentleman tried to argue that the Bill would reduce uncertainty and therefore that it would give greater clarity and assist the process. As many of my hon. Friends clearly demonstrated—particularly my hon. Friend the Member for Shipley (Philip Davies)—changing the “accidental” test in the current law and replacing it with a “substantial compliance” test would create uncertainty, because case law has clarified the law, which is in the unions’ interests. Therefore, some of the core arguments behind the Bill are flawed.
I congratulate my hon. Friend the Member for Bury North (Mr Nuttall) on his speech. Using his legal background, he forensically showed that the test of substantial compliance had extreme shortcomings, and said that it would result in some bizarre outcomes if applied more generally in law.
I welcome the hon. Member for Llanelli (Nia Griffith) to her new position as Opposition spokesperson and look forward to our debates, not only on this Bill but on the Postal Services Bill, on which no doubt we will spend some weeks in Committee. She rightly praised the actions of many unions, especially how, during the recession, they have engaged and worked with management in many firms—large and small—up and down the country to preserve and create jobs. I, too, would like to put on the record my praise for those unions and employers who have been prepared to work flexibly—in respect of family-friendly flexibility, pay cuts and reduced work hours—with management to prevent redundancies.
That sort of progressive trade unionism needs to be highlighted and pinpointed. I often think that it removes some of the passion from this debate by showing that many trade unions are committed to ensuring that our economy is vibrant and prosperous, and do not want to undermine firms’ ability to move on. I was pleased that the hon. Lady committed the Opposition Front-Bench team at least to the framework of industrial relations law, as Labour did time and time again when in government. I was also pleased that she made it clear that her Front-Bench team will not be supporting the Bill today. She made one argument against it: she clearly opposes the part of the Bill that reverses the onus of responsibility and puts it on employers. That is one argument against it, but, as I will seek to show in due course, there are others on which the House should reflect carefully.
On the wider industrial relations context in which we should view the Bill, I want to comment on an intervention made by the hon. Member for North East Somerset (Jacob Rees-Mogg) that went to the heart of the matters before us. He reminded the House that trade unions have immunity from prosecution for breach of contract going back to the Trade Disputes Act 1906, which was brought in by a Liberal Government. That immunity is an important special privilege for trade unions, so it is right that Parliament imposes conditions on how they are used. Over the years, all three main parties have supported the role of Parliament in ensuring that there are conditions on the uses of those privileges.
When one looks at the rationale for the Bill, one must bear in mind the industrial relations context in which it is set. It is important to establish that up front, because there are significant differences in our respective understandings of how industrial relations in the UK are evolving. It is because we start from such different points that I fear our attitudes towards the merits of the Bill will not fully coincide. I suspect that the hon. Member for Hayes and Harlington and his supporters view industrial relations in rather more divided terms than I do. Sometimes from listening to him—I have done so for many years—his seems to be a world in which bosses are always seeking to gain an advantage over the work force. In other words, without the countervailing power of the trade unions, individual workers are always chronically disadvantaged in the work place. His Bill therefore seeks to reinforce and strengthen the countervailing power of trade unions and tilt the balance of the current law and our industrial relations practices in favour of trade unions.
Conflict and confrontation are, of course, a feature of workplace life in some workplaces, but it is much less common than it once was. One only has to think back to the 1970s, when on average 12.9 million days were lost each year through strikes. I am delighted to say that modern-day industrial relations are very different. Of course, the 1970s were also a time of high unionisation in both the public and private sectors, but total union membership has declined significantly since then. In fact, it has almost halved. As a supporter of progressive trade unionism, I take no pleasure in pointing that out. However, those trends are particularly apparent in the private sector. Just 15% of private sector employees are now union members and there are large areas of the private sector where unions are completely absent. They are simply not a part of the landscape.
As I have said, I and the Government more generally are supporters of progressive trade unionism. We feel that unions have much to offer this country. Even now, trade unions represent the largest voluntary organisations in this country—one could perhaps say that they are an expression of the big society.
That is why this Government and my Department want to engage with trade unions. We want to hear their considered views, and to develop a common understanding and an approach to the severe problems that this country faces, which include not just our economy, but the critical state of the public finances. That is why my right hon. Friend the Secretary of State meets the TUC’s general secretary, Brendan Barber, each month. I and other BIS Ministers have also had meetings with the TUC and other trade unions. From those discussions we have explored issues of particular concern to trade unions. For example, decisions that I have taken on the national minimum wage, working with the Low Pay Commission, speak to those concerns. We and other Departments operate an open-door policy for trade unions, and in most cases we have retained the joint bodies, such as the public services forum, and partnership arrangements that the previous Government established.
We want to hold a constructive dialogue with trade unions, but of course it takes two to talk. That places an onus on us to listen and to understand the union position on the matters before us and others, but just as importantly, it places a duty on trade unions to engage realistically with the issues that the country and the Government face. Most trade unions are committed to a mature and positive dialogue of this kind. Sadly, there are a few exceptions to that, but I should pay credit to the many unions that do engage. The Government also understand that trade unions have a positive role to play in the workplace when they engage with the employer. I want to pay tribute to the role of union learning representatives, who help tens of thousands of their fellow workers with their learning and development needs. The Government have therefore committed themselves to continuing to provide support to their work through unionlearn, the training arm of the TUC.
That said, it remains the case that the protective umbrella that the trade unions once provided for this country’s work force has disappeared across large swathes of the economy. However, employees in the private sector are not subject to widespread exploitation, nor are they generally dissatisfied with their employment. Indeed, most surveys show that union members tend to be more dissatisfied with their working environment than their non-union counterparts. There are many reasons why surveys show that and why the decline of trade unionism has not led to widespread dissatisfaction or the spread of bad working practices. One reason is that the law provides many more rights to workers—many were introduced by those on the Labour Benches—than it once did. These days, it is the law, rather than the presence of active trade unions necessarily, that provides the guarantee of decent working conditions and fair treatment to millions of men and women up and down our country.
Another key reason, which I want to stress, is that working life and the approach of employers have moved forward. I am glad to say that it has become the consensus among a vast majority of employers that they should develop a new style of employment relations based on engaging and involving employees. Employers are not taking that approach simply because it is fair and progressive in itself, though it is; they have other, hard-headed commercial reasons for adopting such enlightened policies. Employers realise that obtaining the active co-operation of the work force is vital if they want to increase productivity and raise competitiveness in today’s tough market conditions. The quality and creativity of workplace performance are increasingly important for business success. More and more employers are developing innovative ways to engage their employees.
I do not know whether Labour will take this position in opposition, but the previous Labour Government certainly grasped that point. Indeed, they were enthusiastic enough to promote the message of employee engagement, which in many ways is the zeitgeist of employment relations, and they commissioned a special and very informative study into the subject, by David MacLeod and Nita Clarke, a former adviser to Mr Blair when he was Prime Minister. I have met them both, and I have encouraged them in that work and given support to it from the Department. This forward-looking agenda for employment relations is about securing greater co-operation and engagement in the workplace. It is about identifying common interests between employers and employees, and achieving the shared business goals. It is also about encouraging more employee participation and new forms of ownership. That is not a zero sum game, and this is certainly not about reliving the battles of the 1970s or 1980s.
Looking at the context of the industrial relations behind the debate today, I fear that the Bill does not engage with the new agenda. In many ways, it seems to be a throwback to a previous age, and both the hon. Member for Hayes and Harlington and we need to draw a line under our industrial relations history and turn the page. His Bill does not do those things. So, at a very basic level, I have serious reservations about his proposal.
The Advisory, Conciliation and Arbitration Service is promoting the new style of industrial relations, and I believe that it has much to offer to our debates in this area. I recently visited the ACAS head office and spent some valuable time with its chairman, Ed Sweeney, and his colleagues. I was deeply impressed with the expertise available to ACAS, and with the commitment of its work force. It is best known for its work on conciliating the settlement of industrial disputes, and its record on that is impressive. Less well known is its work on advising employers and trade unions on good employment practices and the management of change. That work helps to raise productivity and performance, and nips potential workplace problems in the bud. Importantly, it creates a culture of collaboration and mutual support at work. I believe that this approach to industrial relations improves—
John McDonnell
On a point of order, Mr Deputy Speaker. I thank the Minister for giving us the opportunity to hear the Government’s response to the Bill, which we have now done. There is other important Back-Bench business today, and I would like formally to move that the Question be now put.
John McDonnell
claimed to move the closure (Standing Order No. 36).
Question put forthwith, That the Question be now put.
John McDonnell
On a point of order, Mr Deputy Speaker. Today we have seen a revisiting of past practices of filibustering to deny the will of the House—practices that brought this House into disrepute and that we thought this new Parliament would put to one side. I believe it is a shame and a disgrace. May I ask you to take this matter back to Mr Speaker, to see whether we can review the Standing Orders of the House so that the objectives of democracy are no longer frustrated by a small group of Members?
Mr Deputy Speaker
Thank you, Mr McDonnell. You have made your point, and I will ensure that Mr Speaker reads what you have said.
Debate resumed.
Mr Davey
May I say to the hon. Member for Hayes and Harlington, for whom I have the utmost respect, that he did not take interventions during his opening remarks? As many of my hon. Friends made clear, that would have assisted the progress of the Bill. I think that new politics is about engagement in debate, and I hope that he will engage in that way in future.
We need to consider the details and the rationale behind the Bill. The hon. Member for Hayes and Harlington tried to make a case for changing industrial action law. He considers the current legal framework to be intrinsically unfair and thinks that because it is complicated, it gives rise to great uncertainty and unnecessary legal challenges against trade unions. Industrial action law has been a bone of contention for most of the last century or more, and hon. Members have referred to past discussions. When we look at the history, we see many key moments. We need only think of Barbara Castle’s “In Place of Strife” to remind ourselves how divisive and politically damaging to certain Governments this issue can be. Then there was the bruising period of the 1980s and early 1990s, when the Conservative Governments of those days introduced a succession of laws to establish a new legal framework to regulate and democratise the taking of industrial action. I believe that those reforms were long overdue, but it is worth reminding the House that they were resisted every inch of the way by the Labour party when it was in opposition.
Jeremy Corbyn (Islington North) (Lab)
On a point of order, Mr Deputy Speaker. I have been trying to follow what the Minister is saying, and it appears to me—I do not know whether you have the same impression—that he is deviating a long way from the terms of the Bill. He is giving his view of the history of industrial relations in the 1980s and early 1990s, when he should be addressing whatever concerns the Government have about my hon. Friend’s Bill.
Mr Deputy Speaker
I am listening to what the Minister has to say, and if I consider that he is out of order, I will certainly call him to order. However, I know that he will want to relate his comments more directly to the Bill.
Mr Davey
I certainly intend to do that, Mr Deputy Speaker, but I hoped it would help the House if I set out some of the context of the debate. I think that people sometimes have amnesia when it comes to what actually happened in the past.
It is worth reminding Opposition Members that the laws we have today relate not only to the laws passed in the 1980s and 1990s, but to the changes in those laws made by the last Government. My hon. Friends made it very clear that the last Government reviewed and made changes to this very part of our law, and did not adopt changes such as those that the hon. Member for Hayes and Harlington is trying to persuade the House to support today. They did not want to make any significant changes to the law on ballots and notices. Indeed, the last change of any substance that they made was in 2004. That is probably why the hon. Member for Llanelli was unable to support the Bill. She and the hon. Member for Bradford South (Mr Sutcliffe)—when he was doing the job that I am doing now—examined the law extremely closely, and found no case for changing it.
It has hardly been a secret that trade unions wanted to extend the disregard in section 232B, but I presume that when the last Government examined the law, they decided not to listen to those trade union voices. I am pleased to observe the consistency in the position adopted by the hon. Member for Llanelli. Successive Governments have taken the view that the legal framework of our industrial relations law is basically sound, and this coalition Government certainly share that view.
Mr Nuttall
I realise that we need to stick to the point, but I think that the historical context is very relevant. The certainty of the law is of great benefit not just to employers but to trade unions. The danger posed by the Bill is that it will reintroduce a great element of uncertainty.
Mr Davey
My hon. Friend is absolutely right. I urge Opposition Members, when they debate this issue—not just today but during the weeks, months and years to come—to think about where the trade union interest actually is. The fact that a body of case law has been developed, much of which, as I said earlier, has found in favour of trade unions, is creating certainty. It is clarifying what was previously uncertain. If we changed the law now in the radical way proposed—it is certainly not modest—we should have to go through that whole process again, which would increase uncertainty, and do precisely what the hon. Member for Hayes and Harlington says he is trying not to do.
Outside the trade union movement, which understandably has its own interests to pursue, I hear no clamour for the law to be changed in the way proposed. It seems that the average worker and even the typical union member do not see the law as unjust; still less is it seen as unfair by the general public. They do not want to see public services disrupted because striking has been made easier—quite the reverse. They want trade unions to help us to manage the painful adjustment that is needed to put this country's finances in order.
The supporters of the Bill argue that the law is too complex. According to them, it places too many procedural obligations on trade unions and as a result it is difficult for unions to comply with the last dot and comma of the law's many provisions. It follows, they say, that trade unions must be given more wriggle room to ensure that they can operate within the law. According to the Bill’s sponsors, the existing disregard, which provides some wriggle room, needs to be extended.
Again, I have to ask what has changed to make life so intolerable for trade unions. This legal framework has maintained its shape, give or take some refinements and amendments, for 20 years or more. Surely both trade unions and employers should be accustomed to it by now. They should know its requirements and they should know what needs to happen at every stage of the process to achieve compliance.
Let us remember that we are not talking about matters that are devolved to ordinary members or to local representatives of trade unions to organise unaided on their own. If that were the case, those local representatives perhaps could not be expected to know every provision of the law, but that is not the position that we face, or it should not be the position that we face. Rather, the taking of industrial action is a very serious matter and no sensible union would permit strikes to proceed without the specific authorisation of the union’s leadership and the involvement of its professional cadre of workers at every stage of the process. By and large, that is what happens.
Nick de Bois
The Minister touches on a point on which I would welcome some clarity: the consequences of industrial action go far wider than has been mentioned so far, as my hon. Friend the Member for Shipley (Philip Davies) highlighted. There is no call for redress for those who are affected beyond the immediate action. Therefore, surely it is responsible for the law as it stands to require the maximum process to ensure that strike decisions are not taken lightly. In that way, those who will suffer as a consequence of that action can at least draw some grim satisfaction from that maximum process. They have no other form of redress.
Mr Davey
My hon. Friend puts his finger on it. We need to weigh in the balance not just the rights of ordinary trade union members, but the rights of the business, the shareholders, the public, customers and other businesses that are affected by strike action. That is why the law has evolved as it has. It is a balancing act. Sometimes people say that the democratic result of a ballot was clearly in favour of strike action but ignore the fact that the procedural way in which the ballot was conducted was against the current law. They fail to understand why the procedures are there. They are there for good reason.
Jacob Rees-Mogg
I thank the Minister for giving way with characteristic graciousness. Does he agree that not requiring the trade unions to stick to a rigorous programme risks their going back to the 1970s? All of us have memories of mass meetings, Red Robbo and the will of the membership being entirely overlooked by terrible abuse of procedure, using the law as it then existed to its utmost to stop members having their say. The law as it stands prevents us from going that way again.
Mr Davey
I agree. I put it in another way, which complements the argument that my hon. Friend is making. I think that progressive trade unions welcome the law as it is. It ensures that their reputation, the way they work and their relationship with members is protected because they can show that they have gone through the right procedures. That improves their reputations with not just their members but the public, so I ask Labour Members who support the proposed change to reflect on the long-term implications for trade unions if we went down that route.
Every union must ensure that it has a good grip of the procedures when it enters disputes and that those procedures are professionally run. I do not think it is unreasonable to ask them to ensure that their information systems and membership records are as accurate as possible, using the vast power of information technology currently at our disposal. I suspect Opposition Members would be as intolerant and unforgiving as I am if organisations in other walks of life failed to keep accurate records or provided mistaken advice or a second-rate service. We should expect high professional standards from trade unions, just as we expect the same high standards from others.
The truth is that the previous Government understood that. From their extensive political contacts with unions, they knew there were problems with how some of them were managed. I suspect that they believed union leaders were a mixed bag in terms of their professional competence. That is why they argued for, and introduced, the union modernisation fund. They wanted to inject public funds into unions to bring them up to scratch. Millions of pounds were spent on projects to update membership databases, adopt new technologies and inject modern managerial methods into the running of trade unions.
Mr Nuttall
On the question of new technologies, the Bill would have been better if it had addressed the problems raised by the judges in the Court of Appeal, and if, instead of changing the rules on substantial compliance, it had provided specifically for the internet, e-mail, Twitter and text to be valid means of electronic communication for the purposes of the legislation. That would have provided a specific clarification that Members on both sides of the House might have been able to support.
Mr Davey
My hon. Friend makes a good point. The Court of Appeal thought about that carefully in coming to its judgment, but I would not want to go any further and say the law has to be tightened up in that way, because the judge’s statements are already quite helpful. I see the thrust and power of my hon. Friend’s argument, however.
If the UMF had worked as intended, it should have rectified the deficit in this area. I suspect, however, that problems remain and inefficiencies persist. While we all need to make sure that unions can try to reform in that area, I do not think the law should be relaxed to preserve poor methods of working within unions. Rather, it should be designed—as, by and large, it is—in the expectation that trade unions will run themselves efficiently and spend the money they collect well; their total annual income is more than £1 billion.
The current law not as rigid as the Bill’s supporters suggest. At virtually every point, the provisions are designed to take account of the fact that trade unions, just like any other organisation, do not have perfect knowledge and complete information at their disposal. Many provisions in the law are flexible enough to take account of what is “reasonable” or “reasonably practicable” for the unions to achieve.
Let us take the example of the law on ballot notices, which is a major part of the Bill. I know trade unions criticise these provisions a lot. Obviously, notices need to convey information, but according to the law—section 226A of the 1992 Act—that information needs to be
“as accurate as is reasonably practicable in the light of the information in the possession of the union at the time”.
That is not an onerous condition, and it is because of those sorts of conditions in the current law that the unions have won a number of cases in this year alone.
Jacob Rees-Mogg
The Minister is being enormously helpful to the House by taking so many interventions.
Is this not the absolutely right and just application of the legal maxim that the law is not concerned with trifles?
Jacob Rees-Mogg
It was quoted from the other side of the House in Latin: de minimis non curat lex.
Mr Davey
I am afraid I only did Latin O-level, and I have forgotten a lot of it.
Turning to the notices informing the voters and the employer of the outcome of the ballot, sections 231 and 231A respectively require only that the union take, as
“soon as is reasonably practicable after”
the ballot,
“such steps as are reasonably necessary”
to inform all persons entitled to vote and every relevant employer of the outcome.
The Bill’s supporters also believe that the law loads the dice in favour of the employer. According to their analysis, the law makes it difficult, and even impossible in some cases, for trade unions to defend the interests of their members—but, again, where is the evidence that the strike weapon has lost its potency, if used responsibly? The level of industrial action varies from year to year, but in the past 12 months for which data are available about 620,000 days were lost through industrial action. I would like that figure to fall, but such levels of industrial action in the UK are about the average for the EU overall, when allowance is made for the size of each country’s work force. In 2007, the latest year for which EU data are available, EU countries lost, on average, 34 days through industrial action per 1,000 workers. The UK figure was similar, although a little higher, at 38 days per 1,000 workers. That does not suggest that the UK laws on industrial action are out of step or are more difficult for British trade unions to navigate than laws elsewhere in the European Union.
Mr Nuttall
Just as a matter of interest, is the Minister aware of whether any other European Union country has a provision similar to the one proposed in this Bill?
Mr Davey
I am not, although I think it is highly unlikely that any EU country does, for the following reason. The way in which industrial relations laws have developed in different countries reflects different traditions, and that is how it should be; I do not think that there is a standard approach in the EU. The British view obviously draws on a very different tradition from elsewhere, but the effect is not dissimilar in terms of the average number of days lost. So the hon. Member for Hayes and Harlington, the promoter of this Bill, has not made his case; he has not provided evidence to show that our trade unions face particular problems.
The hon. Gentleman’s opening remarks contained references to various observations made by advisory bodies to the International Labour Organisation, but the data simply do not support the argument that unions in the UK are uniquely disadvantaged when it comes to organising strike action. The previous Government made it clear that Britain upholds its commitment to the ILO conventions; indeed, there has never been a challenge at the supreme authority of the ILO that we have transgressed our international commitments to those conventions. Some people make rather too much of this by saying that we are somehow breaching ILO standards and other human rights obligations on freedom of association.
It is also worth noting that employers normally choose to settle disputes before industrial action takes place—only a minority of industrial action ballots actually lead to industrial action. According to our estimates, in about 80% of cases where employees have voted for industrial action, no industrial action is subsequently taken. Both sides treat the outcome of the ballot as a stimulus to further negotiation. Once again, such behaviour is difficult to square with the conclusion that employers invariably have the upper hand under our law and could easily obtain an injunction to stop a strike in its tracks or impose their will unilaterally.
The hon. Member for Hayes and Harlington and others have discussed recent court cases. He said that they have made matters much worse for trade unions, but we have heard that argument rebutted.
Mr Nuttall
On court cases, does the Minister agree that it would have been sensible for the hon. Member for Hayes and Harlington to wait before introducing this Bill until the case that the RMT is taking to the European Court of Human Rights had been dealt with, as that may shed some light on the matters that we have been considering this morning?
Mr Davey
My interpretation of the fact that there are some cases before the European Court of Human Rights is that we do not need the legislation at all. Those court cases are dealing with the issues of uncertainty that remain and the case law is helping to develop the situation.
Andrew Bridgen
Will the Minister shed some light on whether we need this Bill and whether there is any requirement for it? Is he aware of the proportion of ballots by unions that have been challenged legally?
Mr Davey
My hon. Friend anticipates what I was about to say. Although it is true that in recent years there have been more applications for court injunctions, we must put that increase into some perspective. It is still relatively rare for the courts to intervene in industrial disputes. Over the past five years, just seven injunctions have been sought, on average, per year. During the five years from 2005 to 2009, there were on average 132 work stoppages each year. With an average of seven injunctions and 132 work stoppages, it is clearly not the case that employers are always going to court and that it is difficult for trade unions to ballot their members, give notices in the proper way and hold industrial action when their members so vote. I am afraid that the facts are entirely against the hon. Member for Hayes and Harlington.
Moreover, these cases have not always gone the way of the employer, even when there have been injunctions, as my hon. Friends have said. The Bill’s explanatory notes refer to the case of British Airways v. Unite. That case concerned the way that the union notified its members about the outcome of an industrial action ballot. On this occasion, the Court of Appeal upheld the union’s appeal and the injunction was overturned.
There are of course other cases in which the trade union lost. Reference has been made to another case involving British Airways and Unite. I freely acknowledge that most balloting processes across our society will contain some flaws. Existing industrial action law makes some allowance for such small errors, but in the case of British Airways v. Unite that Unite lost, the union had made serious mistakes in the balloting process and a large number of people were mistakenly accorded an entitlement to vote. We are talking about a tightly knit group of workers, all belonging to the same, very well-resourced, branch of the Unite union. The union should have known better. Frankly, the union got it wrong and, quite rightly, it had to rerun the ballot.
Nick de Bois
I am grateful to the Minister, who has been very generous with his time. Given the small number of applications for injunctions, would the Minister like to speculate on the motives behind this Bill? It strikes me that it is simply a device to allow and encourage more industrial disharmony at a time when we clearly cannot do such a thing, as well as to cover up the failure of unions to get their act together when they wish to follow this process.
Nick de Bois
I would not wish to suggest otherwise; I was merely asking about the situations that might arise at a time we can ill afford them.
Mr Davey
I certainly agree with my hon. Friend that were we to pass this Bill, it would not help the economy, in its current fragile state, to recover. There would be a danger of more strike action and that is not something that we want.
The courts are helping to develop everyone’s understanding of the practical applications of the law. Let us take the case of Metrobus v. Unite, which is something of a cause célèbre in union circles, and which centred on the time taken by the union to inform the employer of the outcome of a ballot. The employer, of course, has an intense interest in knowing the ballot result. The law therefore specifies that the union should notify the employer as soon as reasonably practicable. In this case, the court considered that the union should have informed the employer sooner. I can understand that the ruling may have inconvenienced Unite, but the ruling sets a clear standard for all unions to follow in future. There should therefore be less uncertainty and fewer legal complaints on that issue, as my hon. Friends have argued.
Let me turn to the detail of the Bill. As I said at the beginning of my response, the Bill amends section 232B of the Trade Union and Labour Relations (Consolidation) Act 1992. That section was inserted in the 1992 Act by section 4 and schedule 3 of the Employment Relations Act 1999. Several years later, in 2002 and 2003, the previous Government reviewed the practical operation of the 1999 Act. As a result, section 232B of the 1992 Act was slightly amended. Those amendments were introduced by the Employment Relations Act 2004.
So what does section 232B do? Its provisions enable the courts to disregard small failures by a trade union to comply fully with certain legal provisions concerning the organisation of an industrial action ballot. Those failures concern the requirements set out in four places in the 1992 Act. The first of those is section 227(1), which defines those who should be accorded an entitlement to vote by the trade union. The second is section 230(2), which places an obligation on the trade union to ensure that those entitled to vote are provided with a voting paper by post and are given a convenient opportunity to vote. The third is section 230(2B), which deals with the corresponding obligation on trade unions to ballot those persons entitled to vote who are merchant seamen. The fourth provision relevant to the disregard is 232A(c), which deals with the obligation on trade unions not to induce a person to take industrial action if that person was not accorded an entitlement to vote in a ballot.
The disregard applies to a small failure or failures to comply with those particular provisions. “Small” is defined as
“on a scale which is unlikely to affect…the result of the ballot”,
and the measures also apply if “the failures taken together” are on a scale that is unlikely to affect the result of the ballot. That test has a strong quantitative component, and it can therefore be used as an objective measure, so the test is relatively easy to apply in practice. Importantly, section 232B applies the law only to “accidental” failures by the trade unions. We have heard quite a lot of comments on that point.
As I have said, the original provision of the disregard was reviewed by the previous Government in 2002 and 2003, and after a detailed and thorough review, they were basically content with the operation of the disregard. They also concluded that other changes they had made to industrial action law had operated broadly as intended, so let hon. Members be in no doubt: the last Government saw no need for provisions such as those in the Bill. Having considered the case for them, and having reviewed them extensively on more than one occasion, they rejected the case for the amendments before the House.
So what are the proposed changes to section 232B? There are four major amendments proposed. I say “major”; the title of the Bill refers to “Minor Errors”, but we are talking about major ones. First, the Bill would apply the disregard to many more provisions in the 1992 Act. I counted that the disregard would apply to every aspect of 15 separate sections of the 1992 Act. In combination, those sections specify virtually all the procedures that trade unions must follow when organising industrial action. The disregard would apply to the running of ballots and to the notices that trade unions must provide to the employer or employers concerned before an industrial action ballot and before any subsequent industrial action. That, by any standards, is a substantial change to section 232B.
Secondly, the changes would remove the requirement for the failure by the trade union to be “accidental”. It would be replaced by the notion that the disregard applied where there had been “substantial compliance” with the provision or provisions in question. That therefore leaves open the possibility that the disregard will apply to situations in which the trade union knowingly makes a mistake or deliberately decides to flout the safeguards in the Act. We could not accept that change.
Thirdly, as the disregard would be extended well beyond the balloting provisions, we would be introducing a new way of defining the size of the failure to which the disregard applies, where the failure concerns a notice. In such cases, the disregard applies if the failure
“is unlikely to affect a reasonable person’s understanding of the effect of the notice”.
That alone raises many questions that are totally unanswered by the Bill.
Fourthly, the Bill places the burden of proof on the employer or other complainant to demonstrate that the failure does not qualify for the disregard. In other words, it is assumed that any failure by the trade union will be small scale and therefore covered by the disregard, unless the complainant demonstrates otherwise—a significant shift in the law, with a new presumption in favour of the trade union.
Earlier in my speech, I identified concerns that the Government have about the overall case for introducing this Bill. But, even if we were to assume that there is a compelling case for some changes to be made to section 232B, the Government would have serious misgivings about the way the Bill would amend the section. We cannot accept that the disregard should apply to every one of those 15 sections. That would be a major extension of the disregard and cannot be considered a modest measure. Just by way of example, the disregard would extend to section 230(1)(a), which provides that union members should be allowed to vote without interference from, or constraint imposed by, the union or any of its members. Where is the interest in allowing errors with respect to this safeguard?
Jacob Rees-Mogg
As I said earlier, this would be a slippery slope. It is an attempt to take trade union law back to where it was in the 1970s. It would run a coach and horses through the attempts since then to ensure democracy, control, proper procedures and orderly ballots. It is a frightening little Bill that attempts to undermine all that in just two clauses.
Mr Davey
As I looked in detail at the Bill, I became increasingly concerned. I thought initially that it might be something with which we could engage seriously and examine the possible need for reform. But if one forgets the title and looks at what is actually proposed, one realises that it is a significant attempt to shift the law in a direction we do not want it to go.
Philip Davies
The Minister glossed over his last comment too quickly for my liking. Am I right in thinking he said that, as the Bill stands, the union could interfere in the free vote of a few of its members in a ballot but could still argue that it had been substantially compliant?
Mr Davey
That is indeed my interpretation. I may have glossed over it because the hon. Gentleman and his hon. Friends made a clear analysis of that point in their contributions. I therefore felt that he had already grasped it, as he does so readily.
We strongly oppose removing the requirement for an error to be accidental. The suggested new disregard would apply to situations in which a union had deliberately denied members the entitlement to vote. It could also apply to a situation in which the union pressurised or coerced some individuals to vote in particular ways. Such behaviours are inexcusable, even if they were to occur on a small scale. They would undermine the democratic principles on which the current law is based. The Government cannot support a provision that could allow such democratic abuse to be excused. We have serious difficulties with the proposal to reverse the burden of proof—[Interruption.]
Mr Deputy Speaker (Mr Nigel Evans)
Order. Mr. Skinner, your sedentary remarks can easily be heard from the Chair, and that should not be the case.
Mr Dennis Skinner (Bolsover) (Lab)
On a point of order, Mr Deputy Speaker. We have a new coalition Government for the first time in 40 years. It seems to me—and you may wish to rule on this point—that the Tory part of the coalition is setting up the Lib Dem to talk the Bill out.
Mr Nuttall
I am sure that hon. Members who have been present throughout the debate know that my hon. Friend the Member for Shipley (Philip Davies) had many more comments to make and has not had the opportunity to do so. The idea that opposition is being artificially engineered is far from the truth, because my hon. Friend had much more to say, and could well still have been speaking at this moment.
Mr Davey
I am grateful for all the interventions, but I want to present my arguments because there are genuine concerns about the Bill that the coalition partners share, and it is important to put them to the House.
We have serious difficulties with the proposal to reverse the burden of proof. To date, in any proceedings, once the employer has established that there has been a breach of the safeguards, the burden shifts to the union wishing to avail itself of the statutory defence to establish whether section 232B applies. That is consistent with the rules on the burden of proof: the burden generally lies on the party making the proposition. However, the Bill contravenes that general rule of evidence. In addition, it ignores another general rule that parties are not required to establish a negative. Under the Bill, the employer has to establish that the breach does not qualify for the disregard under section 232B. On a practical level, it is unrealistic and unfair to imply a level of knowledge on the part of the employer, which enables the employer to show not only that the law has been broken, but that the lack of compliance is substantial and meets certain thresholds.
Andrew Bridgen
As the Minister said, it is difficult to prove a negative. Also, the burden of proof will be on the employers, yet the unions will have all the information that the employers require to reach such a conclusion.
Mr Davey
I listened to my hon. Friend when he expanded on that point in the debate and he was spot on. It would be a bizarre shift in the law. As one of his colleagues said, it would create a lawyers’ charter.
Let me summarise the Government’s response to the Bill. Broadly speaking, there is a disconnect between the measure and the modern world of industrial relations. It will do nothing to shift employment relations on to the new ground of employee engagement.
At this time, we need all employers and all workers to pull together in a common cause to lift individual businesses and the economy at large out of the doldrums of weak growth. We need to pull everyone together in that effort. I want trade unions, as well, to exert their positive influence. The forward-looking agenda is theirs, too. They should adopt their rightful place and be on the inside of the debates. I greatly hope that they will engage with the Government at all levels.
In contrast, the Bill is about division at the workplace, and its effect would be to deepen those divisions by encouraging more strikes and other forms of industrial action. Contrary to the views of its supporters, the Bill proposes a major shift in the balance of the law. There is no consensus in our society for such a shift. In fact, employers believe that we should move in the opposite direction.
Successive Governments, with the previous Government very much to the fore, did not want to unsettle the balance of the law on industrial relations. The coalition Government share that mainstream view. We therefore have no current plans to change industrial action law either in the direction proposed by the Bill or in that proposed by others.
The case that the Bill’s supporters presented for changing the law is not compelling. The legal framework has been in place for many years, and there is no evidence that it causes problems for trade unions that efficiently go about their lawful business. Parties should know what is needed to comply with the law.
The Bill itself has major defects in its drafting and would encourage undemocratic and coercive behaviour by trade unions. Sadly, it is not a Bill that the Government can support. I therefore ask hon. Members to vote against Second Reading.
Jacob Rees-Mogg (North East Somerset) (Con)
Listening to the debate on the Bill since just after Prayers this morning has been of great interest, as have the points that have arisen and been made by hon. Members on either side. However, I ought to start with a point made by the hon. Member for Hayes and Harlington (John McDonnell), who said that we were in some kind of new politics. I think we should be very suspicious of that phrase, because if we look at the annals of history, as I know the House likes to do from time to time, we will see that every generation looks back at the past, and says, “That was a golden age, an age when they knew what to do and did things right and properly. And now look at the times we live in! O tempora! O mores!” as the great Cicero so famously said. He lived in the time of Julius Caesar, so people were making that complaint back in the 50s BC.
It seems to me to be wrong to expect the procedures of this House to be adjusted for some absurd new politics. As we all know from the book of Ecclesiastes, there is nothing new under the sun. That is actually right. Politics is never new or old; it is always the same. People want to get what they want and use strategems and sometimes even tricks to get it. We may be shocked at the tricks, but that is the reality.
The hon. Member for Hayes and Harlington said on a point of order that the will of the House was not being shown, but I think it was. The vast majority of the House decided that, actually, the Bill was not of sufficient importance to warrant their attendance.
Mr Nuttall
My hon. Friend makes an interesting point. The Bill’s title was designed to encourage exactly that response from Members. To be fair to them, I can quite appreciate that they would look at that title and think, “There’s not much here, move along,” but in fact, when we study the detail of the Bill, we find that it is a very substantial piece of legislation indeed.
Jacob Rees-Mogg
My hon. Friend is absolutely right. I was about to say that his speech reminded me of an age of politics when things worked. His was the form of speech that this House was used to when it was at its greatest, when it was the House from which legislation came that ruled an empire and a quarter of the world.
Mr Deputy Speaker (Mr Nigel Evans)
Order. My education is furthered every time I listen to you, Mr Rees-Mogg. I am more of an expert now on Cromwell, Cicero and a lot of other great historical figures, but I was wondering whether there was any vague possibility of addressing the Bill before the House today.
Jacob Rees-Mogg
Mr Deputy Speaker, I was referring to the opening remarks of the hon. Member for Hayes and Harlington and following up on those, as I now wish to follow up on the remarks made by my hon. Friend the Member for Bury North (Mr Nuttall). His speech was in a fine tradition of the House. In the 19th century, speeches of two and a half hours were common. I do not know whether the hon. Member for Bolsover (Mr Skinner) was here for the Don Pacifico debate—[Interruption.] I am pleased to hear it. The great Palmerston spoke for two and a half hours in that debate, and I feel that my hon. Friend the Member for Bury North is becoming Palmerstonian in his approach to the House.
It is important that our procedures are respected and that they operate fairly and properly. Part of that procedure is that if 100 do not go through the Division Lobby to support a closure motion, there can be no closure. That is perfectly justifiable, and it ought not to be brushed away by some airy-fairy talk of new politics.
Jim McGovern (Dundee West) (Lab)
I am grateful to the hon. Gentleman for giving way, but I am not quite sure that I am so grateful for his history lesson. When he talks about these days past and the British empire and so on, does he mean when working-class people knew their place?
Jacob Rees-Mogg
The hon. Gentleman is trying to lead me astray. Mr Deputy Speaker asked me not to carry on talking about history, but I disagree entirely with the hon. Gentleman’s point.
On the specifics of the proposals, we have to look at the Bill in its context. We need not go back to the great strikes of early history. I was thinking initially of Achilles sitting in his tent and about whether that was a first example of industrial action and the withdrawal of labour, and about whether we should get on to Patroclus and so on, but I thought that would be too abstruse at this time in the afternoon. However, the Bill is important because it would take us back to the industrial relations of the 1970s and 1980s, so the immediate historical context is of tremendous importance. I remember growing up—I was a child once, although I never normally admit to it. We had a wonderful debate the other day with all sorts of people saying they had once been 16. I sat here wondering whether I had ever been 16 and hoping that it had passed by quite quickly. However, when I was a child, I saw the streets, including Leicester square, used as a dumping ground for rubbish because of strikes. They were strikes that had been called not with any democratic oversight, but because unions had the ability to bully their members.
The great lady, Margaret Thatcher—Baroness Thatcher, Lady of the Garter—came in and pulled this country up by the scruff of its neck. She introduced legislation, which was opposed every time by the socialists—they opposed everything she did—to democratise the trade unions and bring them under the control of their members and to allow this country to be run by its democratically elected Government, rather than by the grand, godfather-like bosses of the trade union movement. Anything that takes us back to those days would be desperately unfortunate and risk our seeing the same number of strikes that we saw in the 1970s and 1980s and the destruction of British industry.
Our car manufacturing was destroyed by strike after strike called from mass meetings. Do hon. Members remember those mass meetings? Do they remember watching them on the television? Do they remember the voice votes controlled by a few bullies? A hand or two would go up, but they would never be counted. That was the type of behaviour we had in this country before the laws that Margaret Thatcher introduced. That put us back on to a proper footing, where prosperity could arise, commerce could take place and business could flourish. We saw the launch pad built for an amazing economic performance that was no longer being destroyed by the trade unions.
Philip Davies
Does my hon. Friend agree that there is further to go down this route, and that if we are trying to make potential strike action fairer, which seems to be the purpose of the Bill, we should instead be providing that more than 50% of those balloted, rather than just of those who voted, have to have voted for strike action before a strike is called?
Jacob Rees-Mogg
My hon. Friend knows that I have an affinity for thresholds in other circumstances. Obviously, I am not going to talk about that, because it is not germane to the Bill, but I think it right that a sufficient number should express their will for a ballot to be valid, and that while we are debating Second Reading, we ought to think about what else it could have said, had it been a better Bill—a Bill that the House might have liked and approved on Second Reading. It could have contained further reforms to give power back to the members. I actually believe in the slogan used by Baldwin for his election: “Trust the People”. The people are the masters of their politicians, and they know what is best for them, and the greater the democracy in trade unions, the better it is for their members.
I was struck by the Minister’s comments that the Bill would make 15 sections of the Trade Union and Labour Relations (Consolidation) Act 1992 subject to accidental mistakes and a broad interpretation. Does that not make the hairs on the backs of hon. Members’ necks stand up, when they think of what has gone before, and when they think of the possibilities for manipulation and for people to stand over others as they fill out their ballot papers? Perhaps it would be done in the canteen. Perhaps one person would gather everyone together, and if only 20% of the vote went astray, nobody would mind. It would not be substantial; it would be a minor error, a small failing, a little bit on the side.
Andrew Bridgen
Does my hon. Friend agree that were the Bill to become law, it could be viewed by a vast number of unions and union officials, who are quite capable of running a ballot in line with the current regulations, as a complete insult to their intelligence?
Jacob Rees-Mogg
My hon. Friend is absolutely right. If a union cannot run a ballot properly, that is a disastrous state for that union to be in, but people use the mechanisms to hand. We should always be suspicious—always cautious, always careful—about allowing exemptions, because as soon as we do, people work out how to use them for a purpose other than that which was initially intended. That is why legislation in this place needs to be so properly considered—and considered in due and appropriate detail—because when it is not, people might actually believe the title of the Bill, which I come back to.
As the Minister so rightly said, the title refers to “Minor Errors”. Clause 2 deals with the short title, and although I doubt whether the short title of a Bill should very often be a contentious matter, on this occasion I think that it is. I do not think that the Bill ought to be called the Lawful Industrial Action (Minor Errors) Bill. If passed, it should be called the Lawful Industrial Action (Coach and Horses) Act 2010, because that, as I said in an intervention on the Minister, is what it would do to the law as it stands. The Bill would get rid of so many safeguards, and this House is here to safeguard the British people—our electors—not just from over-mighty government, but from over-mighty private organisations that may wish to use and abuse their power.
Philip Davies
On that theme, does my hon. Friend agree that one thing that the Bill does not address is the damages that have to be paid by unions that call for action that is later found to be unprotected? Damages are capped at £250,000 in those cases, whereas the strikes at BA, for example, cost BA £40 million.
Jacob Rees-Mogg
My hon. Friend makes an extraordinarily good and wise point. This would have been a better Bill if it had sought to raise that cap and made unions responsible for their unlawful errors.
Jane Ellison (Battersea) (Con)
As I might not get the chance to make my own contribution, I wonder whether my hon. Friend shares my concern that, throughout this debate, this new concept of “substantial compliance” has not been properly addressed. It has been introduced to us in this small, “minor-errors Bill”, but it is actually a big idea and quite a concerning idea. However, at no point has anyone on the Labour Benches risen to make any attempt at giving us a definition. This debate would have been a great deal more substantial had someone attempted to put some flesh on the bones of that small phrase.
Jacob Rees-Mogg
My hon. Friend is spot-on. We had a discussion about that on this side of the House. My hon. Friend the Member for Dover (Charlie Elphicke) elucidated for us what was meant by “substantial”, and said that in law, it meant an 80:20 level. I am not lawyer, but I was interested by that.
Jack Dromey (Birmingham, Erdington) (Lab)
The hon. Gentleman’s knowledge of members is presumably that of the Carlton club and his knowledge of the shop floor presumably that of Fortnum and Mason. Does his knowledge of the law lead him to understand the jurisprudential concept of de minimis non curat lex?
Jacob Rees-Mogg
I am so grateful to the hon. Gentleman for making that point, which is one that I made to the Minister myself, when sadly he was not present. Indeed, the Hansard reporters asked me to spell it out, so the hon. Gentleman will notice that it is in Hansard tomorrow. De minimis non curat lex is, of course, a right and just principle, but it is in existing law. The question of what is “substantial” is the important one, and an 80:20 test is deeply unsatisfactory, because it simply allows too much impropriety to take place.
For the benefit of the hon. Gentleman, who is interested in my clubs—I believe that I am allowed to answer this point, Mr Deputy Speaker, as it was raised in an intervention—I should add that I am not a member of the Carlton club, although I think it is in a very fine building and has an excellent membership, and that I think that Fortnum and Mason is a very fine shop, and would be very happy to place that on record.
I would like to return to the Bill.
Andrew Bridgen
In the light of the interventions from various Labour Members, does my hon. Friend agree that pretending that only they care about workers’ rights is a fallacy? My great-grandfather was one of the founders of the union movement. My grandfather was a miner, and my other grandfather—
Business without Debate
Hon. Members
Object.
Bill to be read a Second time on Friday 3 December.
Electoral Law (Amendment) Bill
Motion made, That the Bill be now read a Second time.
Hon. Members
Object.
Bill to be read a Second time on Friday 14 January.
Parliamentary Standards (Amendment) Bill
Motion made, That the Bill be now read a Second time.
Hon. Members
Object.
Bill to be read a Second time on Friday 12 November.
Safety of Medicines Bill
Motion made, That the Bill be now read a Second time.
Marine Training and Employment (River Thames)
Simon Hughes (Bermondsey and Old Southwark) (LD)
I am grateful to Mr Speaker for giving me this opportunity to have my first Adjournment debate in this new Parliament. I am also pleased that the Under-Secretary of State for Business, Innovation and Skills, my hon. Friend the Member for Kingston and Surbiton (Mr Davey) is going to respond. I am smiling to myself a little, because I can remember the days when he first came to the House to work for our party as one of its key researchers. Clearly, the mentoring that some of us gave him has worked to good effect, and we welcome him to this responsibility and his important job in the Department.
During the election campaign, I decided, for the first time in the eight campaigns that I have fought, to set out the top 12 issues that I wanted to flag up as commitments to my constituents. One of those—No. 5 on my list—was entitled “Jobs and the river”, and in it I pledged to negotiate with the Greater London authority, the Port of London Authority and local councils
“to provide a local site for boat building and repair, giving jobs and apprenticeships to Southwark residents.”
The reason that I am starting that campaign here and now is that the riverside constituencies in London that have a tradition of providing work, and workplaces, for people in the river industries need to have that interest rekindled. The Thames should not simply pass Southwark’s northern shores; we need activity to take young people and others into training and apprenticeships, and then into work, in river-based industries.
There are some places in which people can start to acquire those skills. The London Nautical school, just over the border in the constituency of the hon. Member for Vauxhall (Kate Hoey), serves her constituency and mine. It is a state school, a community school, with a very fine tradition, and it takes boys from the age of 11 who have an interest in marine and maritime matters, on which its curriculum places a special emphasis. It produces people who go off to work in the Royal Navy and the merchant navy, as well as into all other walks of life. South Bank university, Southwark college and the other further education colleges also provide some of the necessary engineering skills. There is no sense, however, that we are producing people with the skills to work on the river or that we are trying to recruit from the local work force to do the jobs on the river.
You may think, Mr Deputy Speaker, that the days of glory of trade and work on the Thames have gone because there is not as much bustle outside the windows of the Palace of Westminster as the pictures and prints portray, but the reality is that the port of London is hugely successful and the tidal Thames is getting busier, not less busy. There is not only more tourist traffic, but more commercial traffic. It is interesting to note that there is much more commercial traffic doing things that are environmentally good, such as taking waste from one part of London to another, which used to be carried on the roads but was not well received when it was transported in that way.
There are likely to be major pieces of work ahead related to the river. First, there are the plans of Thames Water to have a new mains sewage plant installed across London, which will involve a lot of digging, some of it controversial when it comes to my constituency, but I shall not go into any more detail on that for now. The work for the 2012 Olympics is also producing a lot of construction traffic, much of it using the river. Boats come up and down with materials and products and then take waste and other things out of the way.
The port of London handles 50 million metric tonnes a year; it is the largest port in southern England. About 2 million tonnes move within the Thames area, moving from one part of the river to another. There are links to business on the river—in the City as well as local firms—involving 46,000 full-time jobs; and there are 70 working port facilities on the river, 25 of which are west of the Thames barrier. There are 4 million passenger journeys made on the river every year, and nearly half all the traffic on inland waterways in the UK is on the Thames. That shows that this debate is not relevant only to me and my parliamentary neighbours—or to those of us who, like my hon. Friend the Minister, have the privilege of representing riverside constituencies—as the issues are of national as well as regional and local relevance.
The Thames will get busier in the future. The building of the Thames tunnel from 2013 will mean an extra 100 boats. Then there is the building of Crossrail, bringing the need to transport all the soil dug out of the ground. Further developments are planned in Charlton, for example, and Sainsbury’s has a large distribution centre on the river and it is thinking about opening up the wharves nearby to allow for the distribution of goods to shops along the river. Then there is the possibility of a dedicated cruise terminal near Greenwich. If we are to service all that, we will need new boatyards and repair facilities on the Thames.
I want to deal with two reports, which I commend to the Minister. I hope that he will take what they say away with him—not just for his own Department, but for other Departments with an interest. The issues straddle the Departments. My hon. Friend is good enough to reply to my debate on behalf of the Department for Business, Innovation and Skills, but the Department for Transport and the Department for Communities and Local Government are also interested.
I would like to share with the Minister some of the conclusions from a report entitled “Assessment of Boatyard Facilities on the River Thames”, which was produced in 2007. It points out that there has been an
“increase of 20% in the number of vessels registered”
for commercial use between 1999 and 2006, but:
“The availability of boatyards in Greater London has remained largely unchanged since 2000”.
The London plan seeks to protect boatyards against development for housing and other uses, but there has often been a struggle about that—for obvious reasons, as these are valuable bits of real estate on the river, where property developers have an interest in building luxury flats.
The report also informs us:
“Only two boatyards regularly build boats”,
but a larger range and number of boatyard facilities are available for private boat owners than for commercial operators—and there are 16 boatyards working for the private owners.
What we need, and what the report recommended just three years ago, is, first, a
“site for a new boatyard to maintain passenger boats, support vessels and river piers”.
Secondly, we need action taken
“to improve the availability of facilities for emergency repair”—
an issue to which I shall return in a few seconds. Thirdly, the report stresses the importance of having repair facilities here, because otherwise boat building and boat repair have to go from the Thames and round to the east coast. By definition, that takes a while—it is a journey of several days—and has the risk that some vessels are not licensed for that sort of North sea journey, although they are licensed and equipped to work on the Thames.
Another recommendation three years ago was that there should be an
“opportunity to link the provision of new boatyard facilities with training in marine industry skills”.
The report also stated:
“The opportunity for the public sector activities and facilities in maintaining boats and passenger vessels should be explored”,
with some of the private developments that may come on stream. It also recommended:
“Opportunities should be taken to provide additional facilities for private boat owners in the redevelopment of Thames side sites”.
I know the pressures that exist. When I was first elected—more than a quarter of a century ago—I used to be able to walk along the river and see boatyards, boatbuilding and boat repair in my constituency around the Surrey docks. Yes, we have marinas, at Greenland dock and South dock, but we do not have the repair and maintenance facilities. There is nowhere that a 16-year-old can go to learn the skills, which the Thames and Britain need, of working on boats on the river. Strangely, no facilities exist locally to carry out emergency repairs on the river to rudders and propellers. People therefore use the traditional method of beaching the boat at low tide and doing the repair there. Self-evidently, that is not nearly as satisfactory.
The Thames has three working boatyards, but the biggest boats cannot use them. The largest passenger boats must go to East Anglia—to places such as Lowestoft. There are dry docks in use, small boatyards in my hon. Friend the Minister’s area of, Kingston and Richmond, some Thames repair facilities in Gravesend and the Port of London authority facility in Denton, and a dry docking facility that has been retained. However, that is not enough by a long way, given the big businesses that still exist, such as Tate and Lyle at Silvertown, which was the largest sugar refinery in the world. There is an eminent firm based in my constituency called City Cruises, run by two of the great protagonists in redevelopment along the river, Gary and Rita Beckwith, to whom I pay tribute for their work generally and for pressing me and others to do something about producing a new facility. There is Thames Clippers based in Trinity Buoy wharf, and Thames Luxury Charters based on HMS Belfast in my constituency. An integrated approach is needed from central Government and local government.
Simon Hughes
If I can delay the hon. Lady a moment, I will make another point.
We need to make sure that the price of development land does not price out such activities. Therefore, there is a planning issue for central Government and local Government. When the localism Bill is introduced later in the Session, we need to ensure that central Government and the London government have the necessary powers. We need to ensure that the PLA has the powers to retain yards, if it needs them, and that we do not lose any more sites.
Another point—I think this is the matter on which the hon. Lady wants to intervene—is that we do not have enough qualified people with local navigational knowledge as boatmen on the river. Therefore, during times of peak tourist demand, not enough people are available to run all the boats on the river. In this age, we must not introduce regulations that make it impossible for those who have traditionally worked on the river to retain their qualifications. We must not lose their skills.
Kate Hoey
I congratulate the hon. Gentleman, my friend and constituency neighbour, on his chairmanship of the successful Mayor’s Thames festival. I agree with all his comments, and I am particularly concerned about the seemingly unnecessary extra regulation, which is being interpreted by the Maritime and Coastguard Agency. Skilled, experienced boat masters, whose standards of safety should make us proud, are being asked to go and take examinations again. For many of them, that is quite insulting. Will he join me in urging the Minister to ask the MCA to engage constructively with Thames boat masters to reach a solution that preserves their existing skills and experience and does not subject them to something that is not legally necessary and does not happen in other inland waterways?
Simon Hughes
I will not repeat the hon. Lady’s point: I hope that the Minister will take up the matter with colleagues across Government. I am not arguing for a deskilled or less skilled work force—I was my constituency’s MP at the time the Marchioness sank, and the hon. Member for Hayes and Harlington (John McDonnell), whom I also much respect on these matters, also remembers those days. We need a highly skilled work force, but we also need to use the skills that are historically acquired, because the Thames is a dangerous river to work on.
People sometimes underestimate the strength of the tides and currents, which are extremely dangerous and can be fatal, as was seen at the time of the Marchioness and has been seen on occasions since. It is vital that we retain our current work force, but also build a new generation to take the jobs.
John McDonnell (Hayes and Harlington) (Lab)
I refer the House to my entry in the Register of Members’ Interests with regard to the National Union of Rail, Maritime and Transport Workers. The RMT has learned that some boat masters are being tested on parts of the river on which they never sail. It seems that this is being used almost as an income earner for the Maritime and Coastguard Agency, rather than a genuine new regime for ensuring safety.
Simon Hughes
I should be happy to talk to the Government about that, along with the hon. Gentleman and the hon. Member for Vauxhall. No one is saying that there should not be an assurance that people have the skills that will enable them to continue to do the job. The Port of London authority tells me that the tests are not full-blown examinations, but oral checks and so forth. We are not asking for a draconian change in the rules or any lessening of safety provision, but we need to ensure that we do not lose the skills that are required. My grandfather was a sailor—he had sailed since he was 16—and I know that as much can be learned from experience as from books, manuals and maps.
I commend to the Minister—I will ask his Department to look at it, and to respond to me—a proposal for a London marine hub, which builds on the Government’s policy of using our ports to develop new industries. One of the potential sites is Deptford. City Cruises says that the hub would give us
“strategic infrastructure… a cluster of marine skills and expertise which can develop into a centre of excellence”,
along with
“employment creation in an area of London”
—an area that has traditionally suffered from high unemployment—
“where there are… few new businesses offering skilled and semi-skilled manual work”.
That would allow the experience of the old generation to be retained and shared with the new generation. I hope that the Government will respond positively by examining the proposal with the Greater London authority, the Port of London authority and others.
The Government are very committed—as I am—to ensuring that we give much better skills to people who do not aspire to be academics or acquire doctorates, but have manual skills and can use their hands along with their brains in the interests of the economy and the city. We, in boroughs such as mine, are certainly willing to support such initiatives, using our universities and further education colleges.
I hope that my hon. Friend the Minister will see this as the beginning of a dialogue that will, sooner rather than later, provide opportunities on the river for people to be given training and work, while also helping the river business by providing the facilities that we have lost, or are in danger of losing, from the Thames, so that it can become not just a great river to look at and a great symbol of London, but a great working river once more, bringing jobs, skills and success to the London and British economies.
The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Mr Edward Davey)
I congratulate my hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) on securing the debate. It is typical of him that, having made a promise to his constituents at the time of the general election, he is already mounting a very effective campaign. I hope that, working with the Mayor of London and others, he will be able to achieve his aims.
It has always been a privilege to work with my hon. Friend. I have campaigned with him in his constituency, and it is quite humbling to knock on doors and find that, apparently, everyone knows Simon and has been helped by him. He is held in huge regard by his constituents, and, of course, by many in the House. When I worked as an adviser to the Liberal Democrat party before being elected to Parliament, I worked with him on issues such as the environment and employment. It therefore comes as no surprise to me that he is currently campaigning for employment on the River Thames for his constituents.
I hope that my hon. Friend will forgive me if I cannot answer every point that he has raised, not least because some were directed at the Department for Transport—although I shall try to assist to a small extent—but also because I am standing in for the Minister for Further Education, Skills and Lifelong Learning, my hon. Friend the Member for South Holland and The Deepings (Mr Hayes). However, I hope that I can reassure him about some of the issues that he mentioned, and, indeed, encourage him in his campaign. As he said, I represent a London constituency that borders the Thames. Indeed, I live five minutes from the Thames, where there is a small boatyard, Harts Boatyard, as well as a firm called Turk Launches and many pleasure and leisure activities.
My hon. Friend’s point about the river’s potential for improving our economy was extremely well made. I share his interest in how we can harness the river's considerable potential to fuel economic growth and provide jobs, especially for our young people, in the marine industries. As he said, the Thames already plays a significant role in the economy of London and the south-east. The port of London, for example, is estimated to contribute £3.7 billion a year to the economy. As he said, the port handles over 50 million tonnes of cargo, from fuel to food, cars to containers. It sustains people in a diverse range of employment—manufacturing workers, cargo handlers, drivers, warehouse staff and ships' agents, to name but a few.
In addition, the Thames is growing in importance as a means of transporting commuters and indeed tourists around London. According to Transport for London, the number of passenger journeys has risen substantially in just two years—from 2.75 million in 2006-07 to 3.9 million in 2008-09. That confirms the need for investment in skills, so that that growing activity can be serviced in the way my hon. Friend talked about.
I am sure that my hon. Friend is aware that there are ambitious plans to increase the Thames area's already substantial economic contribution. The London Gateway scheme, headed by DP World, is delivering £1.5 billion of inward investment to build a new deep-sea container port and Europe's largest logistics park. The development, at Stanford-le-Hope in Essex, is the most significant port development in the UK in the past 20 years. London Gateway is the single largest job-creation project in the UK today. It is expected to deliver 36,000 direct and indirect jobs, and contribute around £3.2 billion to the UK economy. Those are developments that I am sure my hon. Friend will welcome.
It is essential that we equip people, particularly our young people, with the skills that they will need to take advantage of those and other job opportunities in the marine industries along the Thames. World-class skills are the bedrock of sustainable economic growth. That was why I was pleased that in the comprehensive spending review this week the Chancellor of the Exchequer announced increased funding for apprenticeships. The Government will boost spending on adult apprenticeships by up to £250 million by the end of the CSR period to create an additional 75,000 apprenticeship places. I hope and believe that the creation of new jobs and apprenticeships in marine industries in the River Thames basin can benefit from that investment.
The Maritime Skills Alliance, a sector body that works to increase training opportunities within the sector, has recently developed a level 2 maritime apprenticeship. Many of the MSA's members operate along the Thames and it will be encouraging them to offer the apprenticeship to new recruits.
Port Skills and Safety, the industry body that includes the Port of London Authority among its members, is developing a level 2 stevedoring apprenticeship, which it hopes to implement soon. North West Kent college, based at Gravesend, will be a major provider of these new maritime apprenticeships, as well as offering bespoke courses to meet the needs of specific companies. Of course we should not forget the 2012 Olympics and the opportunities that the games will create. Transport for London expects that river transport will play an important role in taking spectators to and from venues. All those opportunities and developments within the apprenticeship sector will speak to my hon. Friend’s desire to provide those skills to his constituents, so that they can have jobs along the Thames.
Simon Hughes
I am encouraged and it is helpful to get these things on the record. I hope that colleagues in Government will be positive about promoting and boosting those things. I hope that my hon. Friend the Minister might reflect on the fact that one of the things that we still need to do is to provide sites for shipbuilding and boatbuilding. Most of the vessels—the Queen Elizabeth was launched by the Queen the other day—are built abroad now, rather than in this country. If we have the skills and traditions, with the space available, we should seek to build more of our own river-based and other ships here, rather than having to buy them abroad and only maintaining them here.
Mr Davey
Although I cannot promise my hon. Friend that we will have a rebirth of the shipbuilding industry on the Thames to the extent and capacity that he has talked about, I share his view that we must support companies that are connected with those issues—repair stations, boatbuilders and manufacturers—so that we can develop that skilled work force. As my hon. Friend is probably aware, the Greater London Authority is working with the Port of London Authority to identify sites for new boatyards, and although they may not be of sufficient size and capacity to accommodate international ocean-going liners, we certainly hope and expect they will be successful in delivering new sites.
The National Apprenticeship Service has identified manufacturing and engineering as two of its target sectors. It will be working with employers and training providers to make additional apprenticeship places available where there is local demand both in the Thames area and nationally. These various initiatives are a good start, but more can be done, which is what my hon. Friend is striving to achieve. I therefore welcome the news that next week NAS London, the GLA and the Sector Skills Council for Science, Engineering and Manufacturing Technologies are meeting to discuss exactly this issue. My hon. Friend’s debate is therefore timely.
Local authorities also have an important role to play in working with local businesses to generate new economic opportunities for their areas. That is why we are introducing local enterprise partnerships, putting in place a structure that will support this vital collaboration and enable boroughs such as Southwark to work with their businesses to focus on economic priorities, including unlocking the untapped economic potential of the Thames.
My hon. Friend and the hon. Member for Vauxhall (Kate Hoey) talked about boatmen’s licences, and I know from discussions I have had with my own constituents who work on the Thames that there has been concern about the changes to the regulations in recent years. My hon. Friend and the hon. Lady will know that these changes arose in part from a need to react to changes in a European Union directive, and this has not been without its challenges. It would be wrong for me to go into too much detail because I am not the Minister with responsibility, but I will ask colleagues at the Department for Transport to respond in detail to the concerns raised. I am not sure whether there is an easy or quick solution, but the fundamental point that has been made is that we must not allow regulations to get in the way of our making sure our young people can have careers on the river, and navigate its dangerous waters safely in the service of Londoners and the many people who visit our capital city. Everyone knows that we have to put health and safety right at the heart of our strategy for using the Thames—my hon. Friend better than anybody given the work he did after the tragedy of the sinking of the Marchioness. We must work with trade unions and local authorities to try to ensure that we have a sufficient supply of boatmen who can provide that critical service. Without their skills we will not be able to make the most of the economic potential of the river; they are central to our strategy for unlocking that. My hon. Friend is absolutely right to focus on the skills element, therefore.
It is of relevance that the Government are taking bold steps on apprenticeships. We have made it a central part of a very difficult spending review to ensure that apprenticeships, further education and adult education remain as strong as possible despite the difficult financial situation. That speaks to a number of agendas including social justice as well as the one my hon. Friend talked about. He has always strongly argued that the FE sector often provides training and education opportunities that other parts of our education system do not, in that, along with adult education, it gives people a second chance. He is right to highlight that.
I hope that I have given my hon. Friend at least some cause for hope. I and my colleagues across the coalition will be very happy to work with him to try to make sure that his campaign is successful. The coalition is committed to building the economy and spreading economic opportunity both on the Thames and across London and the country.
Question put and agreed to.
Written Ministerial Statements
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General Affairs and Foreign Affairs Councils Agenda (25 October)
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The Minister for Europe (Mr David Lidington)
The Foreign Affairs Council and General Affairs Council will meet in Luxembourg on 25 October. My right hon. Friend the Secretary of State for Foreign and Commonwealth Affairs will attend the Foreign Affairs Council. I will attend the General Affairs Council.
General Affairs Council
EU Summits with Third Countries
The Foreign Minister of Belgium (which holds the rotating EU presidency) will chair the GAC. The Council President Herman Van Rompuy will host a dinner the previous evening, at which he intends to focus on EU summits with third countries. Drawing on the experience of the recent summit with China, he will invite Ministers to look ahead to summits with the US, Ukraine and Russia later this year. The Government believe that the EU needs to focus these summits on a few key priorities, including advancing the EU’s trade relationships. This issue will be discussed further at the following day’s FAC (see below).
October European Council
Ministers will look ahead to the October European Council, which takes place in Brussels on 28-29 October and will be attended by the Prime Minister. The Council agenda includes economic governance, the Single Market Act, climate change, the Seoul G20 summit, and the EU-US summit. There may also be discussions on the EU-Russia summit, Pakistan (see below) and the EU budget review.
Serbia
Ministers will debate whether to take the next step on Serbia’s EU membership application. The Government support doing so, by referring Serbia’s application to the Commission for an assessment of its readiness to begin membership talks (an “avis”).
September European Council
Ministers will consider follow-up to the September Council. The key UK interest here is on Pakistan. The September Council invited the Commission to present in October a proposal for “immediate and time-limited reduction of duties on key imports from Pakistan, in conformity with WTO rules”. This would be part of an ambitious trade and development package for Pakistan. The Government support quick passage of the trade proposal adopted by the Commission on 7 October, providing Pakistan with significant trade concessions until 2014.
European External Action Service (EEAS)
The compromise texts for the Amending Staff and Financial Regulations for the EEAS have been agreed and should be adopted by November. Member states may take the opportunity of the GAC to congratulate the presidency and Baroness Ashton for their work in completing the procedures necessary to get the EEAS up and running. It is unlikely that there will be substantial discussion. We will stress the importance of budget neutrality and the need for progress on efficiency savings. We will also emphasise the need for recruitment to be meritocratic, and for the EEAS to support member states’ foreign policy objectives, complementing rather than replacing national diplomatic services.
foreign affairs council
EU Summits with Third Countries
Baroness Ashton will chair the FAC. Following the GAC discussion on EU third country summits (see above), we expect the FAC to focus on specific objectives for the US, Ukraine and Russia summits. The Government would like to see an agreement on the importance of support to Pakistan and a revitalised Transatlantic Economic Council with the US; a reaffirmation of the importance of the EU-Ukraine free trade agreement; and a push on Russian WTO accession with a view to finalising an ambitious EU-Russia New Agreement with trade provisions.
Cuba
Discussion on Cuba was deferred from the June FAC, to allow time for Cuba to make progress on an anticipated release of political prisoners. The EU will discuss how to respond to these recent developments in Cuba. The Government recognise that some progress has been made on prisoner releases, and believe that any EU response should be measured, and aimed at encouraging further progress.
Middle East Peace Process
Baroness Ashton will update Ministers on her recent visit to the region. Ministers will discuss developments in the latest talks and what the EU can do to support progress. The Government believe that the EU has a role to play, in supporting US-led efforts to broker peace in the region.
Sahel
Ministers will discuss Sahel on the basis of a recent joint paper by the Commission and the General Secretariat of the Council on security and development issues in that region. The discussion is likely to highlight increasing concerns about security in the Sahel and the importance of the EU’s political, security and development engagement.
Union for the Mediterranean
There will be a discussion of proposals from Baroness Ashton for a one-year transitional arrangement for the EU co-presidency of the Union for the Mediterranean. The Government have concerns regarding this proposal, including around the basis on which the Commission would represent the EU at this intergovernmental meeting. We would like a long-term solution to be found on a legal basis that is acceptable to all member states, and which respects national sovereignty.
The European Neighbourhood Policy (ENP)
We expect a brief discussion on the Commission’s consultation exercise on the ENP with member states and partner countries. The Government believe that the ENP needs to be more ambitious, with access to EU markets linked to demonstrable progress by partners on economic and political reforms. The application of this conditionality should be the basis of the EU’s engagement.
Georgia
We expect a short stocktake of bilateral EU-Georgia relations, following recent Georgian elections. Ministers may cover the EU’s role in continuing efforts to foster regional conflict resolution, and Georgia-Russia relations.
EU-UN
Although not currently on the FAC agenda, some member states may raise the EU’s status at the UN following last month’s “no action” motion in the General Assembly.
NATO-EU
Following the NATO Defence and Foreign Ministers’ meeting of 14 October, there is the possibility of a FAC discussion on NATO-EU co-operation.
Vetting and Barring Scheme
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The Secretary of State for the Home Department (Mrs Theresa May)
I announced on 15 June that further implementation of the Vetting and Barring Scheme would be halted pending a review of the scheme. Together with my right hon. Friends the Secretaries of State for Education and for Health, I am today announcing the terms of reference for this review which we have collectively agreed.
The review will be thorough and consider afresh the principles and objectives of the scheme and recommend what, if any, scheme is now needed. The review will be developed by officials working jointly across our three Departments and recommendations are expected early in the new year.
The protection of children and vulnerable adults must be paramount. But we must also ensure that arrangements are proportionate and support a trusting, caring society where well-meaning people are encouraged rather than deterred.
In parallel, a review of the criminal records regime will take place, led by the independent Government Adviser for Criminality Information Management, Mrs Sunita Mason. This will be undertaken in two phases and will report firstly on employment vetting systems which involve the Criminal Records Bureau, followed by a report on the broader regime.
The terms of reference for these are below.
Vetting and Barring Scheme Remodelling: Terms of Reference
In order to meet the coalition’s commitment to scale back the vetting and barring regime to common-sense levels, the review will:
Consider the fundamental principles and objectives behind the vetting and barring regime, including;
Evaluating the scope of the scheme’s coverage;
The most appropriate function, role and structures of any relevant safeguarding bodies and appropriate governance arrangements;
Recommending what, if any, scheme is needed now; taking into account how to raise awareness and understanding of risk and responsibility for safeguarding in society more generally.
Criminal Records Review: Terms of Reference
The Criminal Records Review will examine whether the criminal records regime strikes the right balance between respecting civil liberties and protecting the public. It is expected to make proposals to scale back the use of systems involving criminal records to common-sense levels. The review will include consideration of the following issues:
In phase 1:
(i) Could the balance between civil liberties and public protection be improved by scaling back the employment vetting systems which involve the Criminal Records Bureau (CRB)?
(ii) Where Ministers decide such systems are necessary, could they be made more proportionate and less burdensome?
(iii) Should police intelligence form part of CRB disclosures?
In phase 2:
1. How should the content of a “criminal record” be defined?
2. Where should criminal records be kept and who should be responsible for managing them?
3. Who should have access to criminal records databases, for what purposes and subject to what controls and checks? To what extent should police intelligence be disclosed?
4. What capacity should individuals have to access, challenge and correct their own criminal records?
5. Could the administration of criminal records be made more straightforward, efficient and cost-effective?
6. Could guidance and information on the operation of the criminal records regime be improved?
7. How effective is the integration of overseas data into the criminal records regime?
Dr David Kelly
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I have today placed copies of the post-mortem examination report and the toxicology report relating to the death of Dr David Kelly in July 2003 in the Libraries of both Houses and on the Ministry of Justice website at: http://www.justice.gov.uk/publications/ kelly-pm-toxicology-reports.htm
I am publishing these reports in the interests of maintaining public confidence in the inquiry into how Dr Kelly came by his death.
While I firmly believe that the publication of these documents is in the public interest, I am mindful that the contents may be distressing. I hope that the privacy of Dr Kelly’s family will be respected at this difficult time.
EU Transport Council (15 October)
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The Secretary of State for Transport (Mr Philip Hammond)
The first Transport Council of the Belgian presidency was held in Luxembourg on 15 October. The United Kingdom was represented by the Deputy Permanent Representative.
The Council reached a political agreement on the directive amending Directive 1999/62 on charging of heavy goods vehicles (the Eurovignette directive). The political agreement was acceptable to the UK.
Neither the existing directive nor the proposed amendment require the use of tolls or user charges but where member states choose to apply them they must respect the rules. The presidency had tabled a compromise proposal, the main elements of which were: to remove all requirements for mandatory hypothecation of revenues to transport projects, to remove the possibility of adding a supplement for congestion, while allowing significant variation of charges within the overall revenue limit; and to allow member states the choice not to apply tolls and charges to lorries below 12 tonnes.
Further modifications made by the presidency at the Council, included provision that the cleanest vehicles would be exempt from any external cost charges for four years after dates of application; and that EURO V and EURO VI standard vehicles would have a zero charge for air pollution until the end of 2013 and 2017 respectively; on the key issues for the UK (mandatory hypothecation and inclusion of vehicles under 12 tonnes) the text was acceptable.
The UK and Sweden entered a minutes statement, stating that in our view the directive should have been taken on a fiscal legal base.
The Council adopted a mandate authorising the Commission to open negotiations with Brazil on a comprehensive air transport agreement, with the aim of opening up traffic rights between the EU and Brazil. The UK supports the opening of negotiations.
There was an exchange of views on strategy and the future of transport 2010-2020, in advance of publication of the European Commission’s White Paper on transport policy, expected in December or January.
In the debate, member states supported the need to develop a more sustainable transport network. There was wide support for a financial framework to support infrastructure developments and intelligent transport technology (ITS) implementation, although some member states pointed out that the EU must not undermine domestic efforts to cut deficits. The UK highlighted the need to focus on areas with proven EU added value and ensure long-term fiscal stability. Major EU projects such as SESAR and Galileo should be completed on time and budget. Long-term priorities should be the full liberalisation of the single market, transport safety and security, recognising trade opportunities, and moving to a low-carbon economy.
Under AOB, the Commission presented a draft Council decision on the public regulated service of the Galileo satellite navigation programme. This should be ready to put to the Council early next year.
The Commission also presented a proposal for a recast of the rail liberalisation package, on which discussions in the working group have already started.
England's Transport System in Winter
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The Secretary of State for Transport (Mr Philip Hammond)
On 26 July 2010 I responded to the interim findings of the independent review panel examining the resilience of England’s transport systems in winter. The panel are publishing their final report today. I would like to thank David Quarmby CBE (chair) and his fellow panel members Brian Smith and Chris Green, for their further thoughtful analysis and recommendations. Copies of the review have been placed in the Libraries of both Houses.
As today’s report notes, much action has already been taken by local and national highway authorities, salt suppliers, Government and others to help keep our road network moving in the event of snow and ice this winter. But as the previous two winters have shown, we cannot be complacent.
Following July’s interim report, I immediately instructed the Highways Agency to build up a national strategic salt supply of last resort. I am pleased to report that the Highways Agency has made arrangements for the import of 250,000 tonnes of salt which is expected to start arriving this month. I am in full agreement with the panel’s view that this should be considered as a short-term reaction to current exceptional circumstances following two successive severe winters.
I therefore welcome the recommendations to improve resilience in salt supply in the longer term through: greater efficiencies in salt utilisation; increased throughput flexibility by suppliers; a new recommended standard of 12 days (48 runs) pre-season stockholding by local highway authorities; and regular monitoring of the national stock position. I urge all parties to take forward the recommendations that relate to them.
The Department for Transport has already been monitoring the national salt stock position in the run up to winter, in order to help highway authorities and suppliers to make better informed decisions. Working with the UK Roads Liaison Group the Department has also commissioned the production of technical guidance for local highway authorities on standards and methods to reduce the utilisation of salt without compromising effectiveness. This guidance, which will be available from the end of this month, will help to ensure that salt is spread at appropriate and effective levels, but not over-spread, thereby helping to conserve stock as well as reducing costs to local highway authorities. Today’s independent report also highlights the economic and social costs of winter disruption, which highway authorities and others will wish to consider when making their future local investment decisions.
I note the review panel’s conclusion that the rail industry had learnt valuable lessons from the winter of 2008-09 and overall coped well with the severe weather in 2009-10. I agree that the industry can improve performance further still by considering the additional measures around emergency timetables, technical improvements, and ensuring that the industry works closely with local highway authorities regarding responsibilities for de-icing key areas.
The report notes that the aviation industry generally anticipates and manages the effects of severe weather to a very high standard of resilience and is already pursuing measures, including additional resilience around the supply of de-icing materials. I welcome the recommendation that the Civil Aviation Authority should consider improving the availability of performance information for passengers and the market.
Across all modes of travel, the report acknowledges the importance of communications in extreme weather for the travelling public. I agree with the panel that those delivering transport services should continue to look to the opportunities that advances in technology may provide to improve communications with their customers.
Finally, in response to public concerns about the fear of litigation and following a recommendation in the panel’s interim report, the Government are today publishing brief guidance for households and traders who wish to clear snow and ice from paths in front of their property, pavements and other public spaces. I hope that this will empower those who wish to act in a neighbourly way.
Budget Responsibility and National Audit Bill
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The Secretary of State for Wales (Mrs Cheryl Gillan)
I am pleased to inform the House that the explanatory memorandum explaining the Government’s proposal for a framework power in the Budget Responsibility and National Audit Bill are available in the Vote Office, Library and the Printed Paper Office, and on the Wales Office website: (www.walesoffice.gov.uk).
House of Lords
Contaminated Blood (Support for Infected and Bereaved Persons) Bill [HL]
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Lord Morris of Manchester
My Lords, I beg to move that this Bill be read a second time, and in doing so I wish to pay warm tribute to the officers and staff of this House who together have made it possible for me to be here notwithstanding the severely incapacitating effect of a recent injury. I have interests to declare, not pecuniary, as president of the Haemophilia Society and as the architect of the independent public inquiry into contaminated NHS blood and blood products presided over by my noble and learned friend Lord Archer of Sandwell.
I am grateful to all noble Lords who are here to take part in debating a profoundly important legislative proposal, conceived and drafted to give solace and support to arguably the most needful minority in Britain today.
A small and stricken community of barely 5,000 people, already disabled by a rare, lifelong blood disorder requiring continuous medical treatment—haemophilia patients—have twice been infected en masse by contaminated blood and blood products used in their NHS treatment. Over 95 per cent were infected with hepatitis C, and one in four with HIV. Of the 1,243 haemophilia patients infected with HIV, only 361—29 per cent—are still alive; and the much higher number of deaths from hepatitis C infection is still increasing. As of now, an estimated 1,994 haemophilia patients have died from being infected by contaminated NHS blood and blood products in this worst ever treatment disaster in the history of the National Health Service. If anyone disputes that assessment, they should look at the findings of distinguished statisticians that the disaster has involved the haemophilia community in a loss of life more savage in proportion to the numbers of people at risk than the Black Death in the mid 14th century. While stigma is less explicit today than the warning cross then scrawled on a plague victim’s door, it is no less cruelly oppressive in terms of social exclusion at a time of direst need.
Yet even the grievous and still ascending death toll does not tell the whole story of the suffering inflicted on the haemophilia community. As my dear and brave and inspirational friend, the noble Baroness, Lady Campbell of Surbiton, whose husband was among the haemophilia patients fatally infected, so movingly said in this House on 23 April, the history of the contaminated blood disaster is one of unspeakable suffering also for,
“mothers, fathers, sisters, brothers, wives, husbands and friends … seeing their loved ones die”.—[Official Report, 23/4/10; col. 1614.]
I want again today warmly to congratulate my noble and learned friend Lord Archer of Sandwell on parliamentary service of the highest distinction in conducting his independent inquiry into the disaster so skilfully and with such excelling integrity. I honour more than words can say both him and those who worked side by side with him in producing his landmark report: Dr Norman Jones, former emeritus senior consultant physician at St Thomas’s Hospital, and Judith Willetts, chief executive of the British Society for Immunology. No inquiry team could have possibly shown more commitment or have been more eminently qualified for the arduous task they so readily and ably undertook, entirely without remuneration.
For parliamentarians there can be no higher duty than to ensure just treatment and due care for people afflicted and bereaved by life-threatening medication supplied by the state; but as every participant in the debate knows, infected haemophilia patients, many of them now terminally ill, also suffer privation at a depth most other people can barely imagine. They speak to me day by day of no longer being able to work full time, if at all; of having been made uninsurable by the prohibitively expensive premiums demanded of them by insurers; and, among numerous other burdens, of costs generally being too high for them to cope with.
I am especially indebted to my noble friend Lord Corbett of Castle Vale for his help in enabling me to cope with the incapacitating effects of my injury in preparing for this debate. I am also indebted to the noble Lord, Lord Owen, from whom I received a movingly supportive letter this morning. Had he not been meeting commitments in Greece when the debate was announced he most certainly would have been here.
I shall comment on the clauses of the Bill as we proceed but, taken together, they transform the Archer report into the language of legislation. My purpose in working for most of last year’s Summer Recess to draft this measure—with unstinting help from Sarah Jones of the Public Bill Office—was to guarantee parliamentary time for this House to debate both the Archer report and the Government’s response to its findings.
Like other noble Lords who took part with me on 28 April 2009 in a debate to amend the Health Bill then before the House, I thought that we had an assurance very close to that guarantee from my noble friend Lord Darzi, then a junior Health Minister, speaking for the Government and having just announced that their response to the Archer report would be published at an early date. He went on to say:
“Furthermore, we will of course assist as far as possible in securing a debate on the Government’s response”.—[Official Report, 28/4/09; col. 143.]
Yet in the three months that then elapsed before the Summer Recess, there was no sign anywhere on the parliamentary horizon of a debate being arranged. Thus there was nothing precipitate in my decision to spend much of that Recess addressing the tasks involved in having this Bill ready for a First Reading in your Lordships’ House by 19 November. Indeed, it was then already nine months after the publication of a report the recommendations of which were vitally important to afflicted patients and the bereaved families on the day they were published in February last year.
The privation I have described among those afflicted is addressed in Clause 4, which deals specifically also with the crudely discriminatory treatment now of widows of infected patients in deciding whether they are eligible for financial help solely on the basis of when their husbands died, even where they died within two days of each other from exactly the same cause. The ending of that discrimination was one of the issues of longstanding concern to the Haemophilia Society and was strongly and repetitively emphasised in its evidence to the Archer inquiry. I mention it first today, in referring to Clause 4, because several of the widows excluded from help, who wanted very much to be here for the debate today, have contacted me to say that they simply could not afford the fares—and this at a time when just five NHS officials are seen to have been paid a total of £6 million over the past year.
Clause 4 addresses the whole range of compensation issues and has been welcomed as fair and balanced by commentators on social policy of wide experience, as was the Archer report itself all across the media. Everyone knows that there will be costs in giving full effect to the report, but there will also be priceless benefits in enabling haemophilia patients to live fuller and more fulfilling lives.
Moreover, the cost will be nothing even remotely approaching the £3 billion price tag put on the Archer recommendations by people, including commentators in the media, who had never even spoken to my noble and learned friend Lord Archer; but happily he is here this morning to speak for himself. Of course, costings should also include the high cost to the taxpayer of legal action by the Department of Health with such unsuccess.
Clause 1 creates a widely empowered statutory committee, with patient and family representation, to advise government on the management of haemophilia; Clauses 2 and 3 deal with blood donations and improving medical care; while Clauses 5 and 6 are about monitoring progress and the effects of regulations made under the legislation.
Turning to issues not dealt with in the Government’s response to the Archer report but worthy of close attention in the House, there is the spectre now of a third deadly scourge facing haemophilia patients. In response to Parliamentary Questions about the growing number of haemophilia patients known by the Department of Health to have been infected with blood from donors who have since died from variant CJD, I was told on the authority of the Chief Medical Officer that the risk of infection in such circumstances was purely “hypothetical”. That is demonstrably not the case today, a post mortem on a hepatitis C-infected patient having found variant CJD in his spleen. Ministerial statements on this further scourge urgently need updating. We also need to know how the Government now assess the variant CJD threat to the haemophilia community.
As the House knows, the Archer report was about more than the unmet needs of infected patients and bereaved families; it addressed also highly disturbing administrative shortcomings, serious omissions and a failure to inform Parliament why provision made in other countries is so much better than here in Britain. For example, there was no mention in the Government’s response to the Archer report’s findings of the behaviour of the Blood Products Laboratory in failing to comply with requirements of the Medicines Act 1968. This is a hugely important issue, as is that of the effect of using Crown immunity to avoid any question of legal redress.
The Archer report stated that the,
“BPL was rescued by Crown Immunity”,
adding that the BPL’s,
“existing plant continued production, relying on Crown Immunity to dispense with all the requirements of the Medicines Act, but was able to meet only about 40% of the national requirements”.
That can mean only that, by the use of Crown immunity, a relic of feudal England, the lives of countless haemophilia patients were put blatantly and gravely at risk.
The seriousness of this had already been underlined by my noble friend Lord Darzi. When responding to exchanges about thalidomide on 10 March 2009, he referred to,
“the tremendous amount of work that has gone into the marketing, testing and regulation of drugs, as encapsulated in the Medicines Act 1968, from which society has benefited greatly”.—[Official Report, 10/3/09; col. 1059.]
Could there be any clearer text than that for condemning the BPL's use of Crown immunity to dispense with all the requirements of that renowned and vital statute?
From whom was the BPL rescued by its use of Crown immunity? First, of course, it was rescued from those afflicted and bereaved by the disaster. At a stroke, they were denied any right to legal redress, a denial made all the more cruelly unjust by refusals of successive Governments to hold a public inquiry. They were left with no hope of any independent assessment of where responsibility for their plight lay until the Archer inquiry was announced. Of course, the BPL was rescued from any danger of censure by the courts. Crown immunity was abolished by John Major in 1991, and the afflicted and bereaved ask why, since it is clear that the present Government had no intention of reinstating Crown immunity, they could not now review the claims of those from whom the BPL was rescued by that immunity.
The noble Lord, Lord Thomas of Gresford, who is much respected here and outside the House for his role in this policy area, said on 23 April that it would be possible for actions to be brought now, dating back as necessary, if the Government chose to waive Crown immunity. Thus the question today is whether the Government, opposed as they must surely be to restoring Crown immunity, have considered this possibility or will now do so. At the very least, Ministers could review the claims, where it is still feasible to do so, of the victims of contaminated NHS blood from whom the BPL was rescued by Crown immunity. If anyone thinks there is no way now of our being able to do any more to help the afflicted and bereaved, they should look at how the Irish Government found ways of compensating victims there by more than anything even contemplated by Ministers for NHS-infected patients.
In this regard, it must be made absolutely clear that the Government of the Republic did not, as stated in this House by my noble friend Lord Warner, briefed by and speaking for the Department of Health on 25 March 2004,
“set up their hepatitis C compensation scheme following evidence of negligence by the Irish blood transfusion service”.—[Official Report, 25/3/04; col. 796.]
That is untrue. It was again wrong for the Department of Health to have briefed Gillian Merron, then a junior Health Minister, to tell the House of Commons that,
“a judicial inquiry in Ireland found failures of responsibility by the Irish blood transfusion service and concluded that wrongful acts had been committed. As a result, the Government of the Republic of Ireland decided to make significant payments to those affected”.—[Official Report, Commons, 1/7/09; col. 130WH.]
Brian O'Mahony, chief executive of the Irish Haemophilia Society, who was personally involved in the negotiations with the Department of Health and Children in Ireland in 1994 and 1995 that led to the establishment on a statutory basis of a hepatitis C compensation tribunal on 16 December 1995, has written to me to say that my honourable friend's statement to the House of Commons was “misleading and erroneous”. He goes on to say that the compensation tribunal heard its first cases in early 1996 and that the first award for persons with haemophilia was made in March 1996. He concludes:
“Therefore the establishment of the Hepatitis C Compensation Tribunal, and significant payments by the Tribunal, pre-dated the setting up of both the Finlay Tribunal established in October 1996 and the Lindsay Tribunal of Inquiry set up in September 1999”.
I also have a letter from Kay Maher of the Republic's Department of Health and Children confirming Brian O'Mahony's statement, which concludes:
“I hope this will serve to clarify the sequence of events in Ireland for Ms Merron and I trust that her department will now correct the record”.
I look forward to hearing the department's response to that extremely important request.
Before concluding, I must inform noble Lords that sadly, as well as anguish and despair, there is evidence now also of anger in the haemophilia community about the Department of Health's treatment of the Archer inquiry and its report. It is five weeks ago that a terminally ill haemophilia patient, now deceased, who had given evidence to the inquiry, said to me with bitterness: “While we crossed the whole of Britain to meet the Archer inquiry, Health Ministers refused even to cross the road”.
The same intensity of feeling is seen also in the Haemophilia Society’s reaction to a recent letter sent to Chris James, its chief executive, by Anne Milton MP, a junior Health Minister, saying how appreciative she was of his involvement to date. It said:
“I do hope you will feel able to continue to work with me and my officials as your input is invaluable”.
In a letter I received from Chris James yesterday, he expressed deep annoyance at her suggestion that he had been working in close consultation with her and said that the truth was that he had met briefly with her only once since the election and had made it emphatically clear to her that the Haemophilia Society wanted full implementation of the recommendations from the noble and learned Lord, Lord Archer. Only that, he said, could ease the suffering of the afflicted and bereaved. He said also that it was utterly disgraceful for the Government to have chosen to ignore Mr Justice Holman’s findings in the High Court in the case of the Department of Health v Andrew March.
Chris James also tells me that one of his members, David Leadbetter, who is severely afflicted as a result of contaminated NHS blood, met the Prime Minister for 15 minutes as his constituent on 2 July. He writes:
“David was very touched by the Prime Minister’s empathy for his plight and was told by him that the issue would be dealt with urgently and in a positive way”.
At that meeting, David Leadbetter asked David Cameron whether he would also meet me, as president of the Haemophilia Society, to discuss the Government’s approach. His response was that he would “readily do so”.
I have not so far been asked to see David Cameron, but I am, of course, well aware of his warmly supportive attitude to the Haemophilia Society’s desire for urgent closure on just terms in a letter to Chris James on 18 June last year. In the society’s view, all that he has said contrasts sharply with the language now used by Anne Milton and explains the growing anger across the haemophilia community.
In the interest of creating hope in place of anger, let me assure the haemophilia community as a whole that it has in this House both a ready understanding of its despair and an unbreakable resolve that if this struggle has to go on, then go on it will until right is done. I beg to move.
Lord Archer of Sandwell
My Lords, we are debating a Bill presented by my noble friend Lord Morris of Manchester, who is very much to be congratulated on having secured this debate so early in the Session. I say at the outset that we all wish him a speedy recovery from his present affliction. For my noble friend, this is one chapter in an unrelenting campaign on behalf of a group of people who, through no fault of their own, suffered a devastating misfortune. In some cases, it ruined their lives; in others, it deprived them of close family members and for many of them it is already, sadly, too late.
Perhaps unusually among our exchanges, there is no question in this debate of seeking to pass the blame like a parcel from hand to hand. The events which led to the tragic outcome happened many years ago and extended over more than one Government. No Government who have held office during this millennium can be held responsible for what transpired, except that the years have passed and the victims understandably feel, as my noble friend said, that Government after Government have responded with little warmth or sympathy. It would not be true to say that there has been no response, but usually it has been wrung from a reluctant Government.
We are now making a little progress. It seems to be a matter of consensus across all parties that the victims have suffered too long, and that in a community that claims to care for its citizens there should be some alleviation of their afflictions and some willing recognition that those who suffer misfortune should not feel that they are on their own. When the inquiry made its recommendations—and I am sure that I can speak for my colleagues on the inquiry—it was not our intention that they should be set in stone on a take-it-or-leave-it basis. They were proposals intended to move the discussion forward. We gave reasons for them, but it was never our intention that if they were not accepted in their entirety we would walk away from all further discussion. Sadly, there was little discussion. The last Government made their response, but it would be a sad reflection on the democratic process if that were considered to be the last word.
My noble friend Lord Morris has incorporated some of our proposals in his Bill but I believe that that, too, is an attempt to move the discussion forward. A human tragedy should not become a political football. Perhaps the clearest example lies in the proposals for financial relief for the victims and their families, as my noble friend said. One obvious consequence of the condition from which they suffer is a loss of earning capacity, often followed by a forfeiture of pension rights. To that, we can add the costs of additional heating, a special diet and additional transport costs. Successive Governments have, to their credit, provided some relief, as I hope we set out fairly in our report, but some of those we are discussing were previously capable of earning and enjoying high living standards.
That raises a number of questions. Should the Government provide relief to compensate the victims for the quality of life which they have lost and for the financial loss which has exacerbated their condition? Those questions have become intertwined with yet further issues. Was there a legal liability on Governments to pay compensation? The problem about relying on legal redress—I say this from long professional experience—is that it becomes entangled with issues that are further and further remote from the suffering and need. Has the limitation period expired? Are the victims precluded from claiming by the releases they were compelled to sign as a condition of receiving government assistance? After the long delays, can people’s memory of what transpired be relied on? Were proper records kept? In all this, the important issue—the human need—is lost.
There have been long and sometimes expensive debates on whether the disaster happened because successive Governments were in some way at fault. We declined to address that question, because we do not agree with the proposition that unless a Government were at fault they have no obligation to relieve the distress. We believe that where there is undeserved suffering among an identifiable category of citizens, they are entitled to look to the Government for relief. If the Government address their duty and offer relief, that should not be construed as an admission that they or their predecessors were at fault. We summed it up by saying:
“The very purpose of Government is to protect its citizens, so far as possible, from life’s vicissitudes, and to afford them the best achievable quality of life”.
With hindsight, and this was discussed by my noble friend, we may have clouded rather than clarified the debate by suggesting a comparison with Ireland. We did so because it seemed to us that that should offer some guidance as to the standard of relief that we had in mind. The history of the catastrophe in Ireland bore strong similarities to that in England. Sadly, it gave rise to the very kind of arguments that we had been concerned to avoid. The Government said, “But there was a distinction between the two situations. In Ireland the Government were said by an inquiry to have been at fault. There has been no such finding in England by statutory inquiry”. Of course there has not; there has been no statutory inquiry. Successive Governments have refused to appoint one.
We declined to address the issue for the reasons that I have suggested, and in any event we were not a statutory inquiry. We were enabled to pursue our inquiry by the efforts of my noble friend Lord Morris, who sought to repair the omissions of successive Governments. We did not say that Governments had not been at fault; we said that the question was irrelevant to what mattered.
I want to correct a further misconception. It was suggested that the criticism of the Irish Government came from the Finlay tribunal and the Lindsay inquiry, as my noble friend said. The compensation tribunal and the compensation scheme for haemophilia sufferers were established in early 1996. The Finlay tribunal was not established until October 1996, and the Lindsay inquiry not until 1999. The provision made by the Irish Government was not a response to anything in those reports—it was a recognition of need. We believe that Ireland provides a relevant model, although we never suggested that the United Kingdom Parliament should be bound by legislation from Dublin or that it should slavishly follow the Irish mathematics.
One further consideration remains. We are conscious that this is not the most propitious time to propose government expenditure. There have been times in the past when the Government have had fewer constraints on their generosity. It is ironic that the delays by successive Governments in addressing the problem should have provided an excuse for being less generous. Surely the test of any community, though, is whether, when times are hard and resources are limited, the burden is allowed to fall on those who are least fortunate and most in need. Those who suffer misfortune do not forfeit their place in the community. The city gates are there to protect all the citizens, not to exclude those most in need. If my noble friend’s Bill initiates a conversation before yet more of the victims are no longer here to take part in it, his efforts will be justified.
Baroness Hussein-Ece
My Lords, I am grateful to be able to contribute to this debate on this important Bill. Unfortunately, I see from recent debates in Hansard that this is a long-running and much debated issue that has not yet been concluded. More importantly, the victims and families affected have not had the justice that they deserve.
As a new Member of your Lordships’ House, I come to this matter with a fresh outlook, and have been surprised and disappointed at the apparent lack of urgency and what seems like prevarication over successive Governments and over the intervening decades in coming to a fair and just settlement. I pay tribute to the noble Lord, Lord Morris, and the noble and learned Lord, Lord Archer, for their tireless and exemplary work on this.
It is even more unfortunate, in my view, that a resolution was not arrived at in previous years, as the noble and learned Lord has just mentioned, when we did not face the economic pressures that we face today. The treatment of patients with contaminated blood has been described as one of the most tragic episodes in the history of the NHS; it has also been described as the “contaminated blood scandal”. It is hard to argue with either of these descriptions; through no fault of their own, patients were treated with contaminated blood products and many have subsequently suffered poor health, needing specialist help, treatment and support. Many more have sadly died. We also know that many have suffered, and are still suffering, exceptional hardship.
I was, however, a little heartened to read the public health Minister’s statement in the other place last week that, while ruling out a suggestion to match the compensation to those in the Irish Republic, as was mentioned earlier, she would look again at some aspects of the report of the noble and learned Lord, Lord Archer, and would report by Christmas this year. Although we know that this will disappoint many families and campaigners, at least it provides some movement and hope, and I welcome the review.
I feel that we have arrived at the last chance saloon, and that a resolution needs to be negotiated with the assistance of sufferers of hepatitis C, their families and carers and other interested parties. It cannot be right that we have such a disparity between sufferers who contracted HIV and those who contracted hepatitis C. We know that HIV has become a much more manageable disease than it once was, while hepatitis C is treated by a gruelling six to 12 months of antiviral therapy, which can have severe side effects comparable to chemotherapy and successfully clears the virus in only around 50 per cent of cases. We know that sufferers can develop cancer and other serious medical conditions.
As we heard earlier, many sufferers face continuing hardship and rely on handouts from charities. This is not sustainable or acceptable in the long term. For many, it means a lack of access to insurance, crippling prescription charges and a reliance on social care services, which have to be paid for, depending on their circumstances. Any form of compensation should be awarded on the basis of a needs assessment.
To pluck out one example, it seems very unfair that the dependants of those who died after 5 July 2004 can apply for support from the Skipton Fund only if the victim had applied to the fund before dying. This does not seem to take into account all the merits of each case. I hope that this can be looked at. I also welcome the intention to establish a proper appeal mechanism for those whose claims may be or have been rejected; that is very welcome.
Like others, I believe that it is the responsibility of the Government to address the needs of their citizens. It is a question not of blame but of doing the right thing—of ameliorating the ongoing suffering and distress. The added challenge in today’s climate is to achieve this within the economic constraints that we find ourselves in. Sufferers and families must be treated with decency and fairness. The many expressions of sympathy that we have heard over many years, and which I have read, have probably been welcome but will no longer pay the bills, offer support or address the exceptional hardship.
I welcome the review and support efforts to establish, within a limited period, a timetable to reach a conclusion to this matter. I hope that we are not going to wait another period of years until the matter resolves itself. The dwindling numbers of sufferers deserve our support; they deserve closure and justice.
Baroness Finlay of Llandaff
My Lords, I rise in support of the noble Lord, Lord Morris of Manchester, who must be admired for his perseverance and loyalty to a group of people who have felt severely wronged. It has been said that the civilisation of a society is reflected in the way in which it looks after its most vulnerable members. I think that the noble Lord has done a great deal to raise the level of civilisation in our society and the way in which we approach people who are vulnerable.
I declare an interest: I work for Velindre NHS Trust, which now incorporates the Welsh Blood Service. I am grateful to Geoff Poole, the director of that service, for having discussed this matter with me prior to this debate.
I take this opportunity to pay tribute to the deceased husband of my noble friend Lady Campbell of Surbiton. Graham was a delightful, charming and intelligent man, who unfortunately had contaminated factor 8. He was responsible for supporting my noble friend at the beginning of her career, which I sincerely believe has been as stellar as it has been because of the love and support that he gave her. When he died, she was completely devastated, as were many of us. In his dying, he was extremely dignified and never bitter.
The tragedy that has happened is one from which lessons must be learnt. Indeed, the noble and learned Lord, Lord Archer, says in the closing paragraph of his report:
“We must now look to the future. We cannot undo the damage done, nor turn back the clock to take a closer view of those past events and decisions”.
I take this opportunity to take a forward look. The Bill is important, but I just wonder whether it might need to take more of a prospective view, particularly where it includes lists of conditions to be considered in blood donations.
This tragedy has highlighted the problem of risk assessment. We do not live in a risk-free society and it is important that we do not fail to recognise risk when it emerges and stares us in the face. The Advisory Committee on the Safety of Blood, Tissues and Organs—SaBTO—was set up three years ago, replacing its predecessor. I ask the Minister to provide assurance that the committee will continue and remain supported, as it has important work to do. It is currently looking at the risk of new variant CJD in relation to blood, tissues and organs. The services out there are waiting to hear its conclusions as new evidence emerges.
I also take this opportunity to say that, in my view, we face an unintended consequence of previous legislation—the Human Tissue Act—which prevented our looking at routine samples from tonsillectomies and splenectomies in an ongoing way to try to find out the true incidence in the population of variant CJD. Without that information, it is harder to know the size of the risk that blood transfusion services face in taking blood from donors, as we do not have a reliable and simple clinical test to look for the presence of variant CJD. It is likely that variant CJD is transmitted in blood transfusion, but we are not sure whether the removal of white cells from blood has decreased the risk as much as the services hope. The removal of white cells should have decreased the risk hugely, but the risk is always there in the clinical scenario, where a patient faces life-threatening haemorrhages—the risk of dying from exsanguination versus the risk of transfusion. Obviously, the risk of using blood and the readiness to do so in the service varies with the clinical condition of the patient, but that balance is considered every day across Britain. We do not know whether blood should now be filtered more vigorously than has been the case because of variant CJD. SaBTO’s ongoing work will, we hope, inform that decision.
Blood services are aware of the theoretical risk, but they just do not know the best way of allocating resources to keep that risk to a minimum. We no longer use imported plasma, we do not accept paid donors and HIV is quickly identified in screening. However, the true safety of blood depends on the way in which the service screens and refers its donors. Men who have had sex with men are excluded for life from being blood donors. The decision has just been made that people with ME are deferred. There is a possibility—it is unproven—that the XMRV virus is associated with ME. The fact that these people are being excluded from being donors does not make the statement that there is a definite association, but it is part of the risk assessment process and I am glad that the risk has been taken seriously and that proportionality was applied when the question emerged. Similarly, when people have travelled abroad, donation is deferred, as things such as dengue fever are not easily detected. Much of our safety depends not on testing the blood that is donated but on the early screening out of donors who may be at risk and on being careful about the blood products that are used.
The use of blood is remarkably safe, but it would not be fair to say that it has zero risk. The major problem now comes from misidentification—either a blood sample wrongly labelled at cross-match or misidentification of the recipient, so that they are given the blood that was cross-matched with somebody else. Another problem is infection in relation to platelets, although the use of single donors for platelets has decreased that risk hugely. Platelets cannot be stored at 4 degrees centigrade; they are stored at 20 to 22 degrees centigrade, so that they still function, but that is an environment in which bacteria can multiply. Indeed, there have been recent deaths of people who, unfortunately, have had bacterial septicaemia. I hope that the Government will support new developments, such as the clotting factors that have been developed for our troops in the battlefield. They are contained in teabags and, when they are put over a bleeding wound, rapidly cause clotting. They may revolutionise our management of trauma. They are expensive and new, but they may turn out to be cost-effective in the long term.
In the balancing act, we also have to consider the costs related to self-salvage of blood. I pay credit to Dr Dafydd Thomas from Morriston Hospital, who has pioneered a lot of this work to significantly decrease exposure to pathogens. As far as factor 8 concentrates go, we hope that they are now virus free, but it should be stated that that relates to all known viruses. When I qualified, HIV did not exist; it was not known. I remember clearly the index cases that started to emerge in the USA, when people did not know what the condition was. We do not know what we will face tomorrow. Looking towards tomorrow, I think that, whatever happens, we need to be vigilant about emerging new diseases, as well as the discovery of viruses of all types which we do not currently know exist but which I am sure we will find are responsible for diseases that we are treating but do not know are infection related.
In these last moments, I turn to compensation. Whenever something has gone wrong, the longer it goes on, the worse it is for those who are bereaved and feel aggrieved. The anger and distress turn to deep, corroding bitterness as time goes on and people feel that they have not been listened to. The sad reality is that no money can replace the life of the person who has died prematurely from a cause that was not expected. In many ways, the only measure that we have in our culture is money, so we look to financial compensation. However, I hope that one of the lessons that will be taken from this whole tragic saga is that things must be dealt with quickly. To become overfocused on money is to lose sight of the deep personal distress of people before they die from the time that they know that something has gone wrong. We must address that with a change in attitude
I support the comment of the noble and learned Lord, Lord Archer, that we must get away from looking to the courts and the legal system to provide us with answers. They are the point of last resort; I would say that they are beyond the point of last resort. Things have probably gone irretrievably wrong by the time they get there.
There are many lessons to be learnt. I wish the noble Lord, Lord Morris, well with his Bill. Some tiny amendments could make it more future proof.
Lord Corbett of Castle Vale
My Lords, if there was a Nobel Prize for persistence, my noble friend Lord Morris of Manchester would walk away with it by a mile. I also pay tribute to noble Lords who have taken a consistent interest in this matter, as well as colleagues in the other place along the Corridor.
We are not picking on this Government, but on the Government of the day. There is a widely supported view in both Houses of this Parliament that the debt of honour owed to the victims of contaminated blood, their carers and their families must now be redeemed. Of the 4,670 patients given infected blood by the NHS in the 1970s and 1980s—my noble friend Lord Winston called this the worst treatment disaster in the history of the NHS—only 2,700 survive. We also owe special thanks to my noble and learned friend Lord Archer of Sandwell and his colleagues for conducting the independent inquiry into this issue against the background, as he said, of the refusal of successive Governments to have an official inquiry.
As my noble friend Lord Morris has explained, the Bill sets out a comprehensive system of compensation to alleviate the intense hardship and suffering of victims, their carers and families. I, too, hope that the Government accept that it has now been acknowledged that the statements made about the timing of the introduction of the Irish scheme were mis-statements to both Houses. I hope that, in responding to this debate, the Minister will be able to assure us that those corrections have been made to the official records in the Department of Health. They are of great importance—although, as my noble friend said, no one involved in this campaign wants to go down the road of trying to apportion blame. The matter of negligence simply does not arise. A great wrong, an injustice, has been done. It must now be put right.
I will not go through the detail of the Irish case, but I underline its importance. Successive Governments have relied upon the finding of negligence in the Irish republic in saying that they did not want to know about what happened in Ireland as no negligence was established in the United Kingdom. As my noble and learned friend Lord Archer said as early as page 9 of his report, which bears repetition,
“The past cannot be undone. Nothing can rescue the victims and their families from what they have already suffered. But a review of the events and decisions that led to the tragedy may assist in coming to terms with the consequences, and might suggest ways in which Government may address those aspects which it is not too late to rectify. While hindsight, by definition, operates after damage is done, it may reveal important lessons for the future. We consider that to be more important than apportioning blame”.
It seems that the Government have now abandoned arguments around the issue of negligence. In the other place, Ms Anne Milton, the Parliamentary Under-Secretary of State at the Department of Health, announced on 14 October a review of the recommendations made by my noble friend for ex gratia payments, free NHS prescriptions in England and access to insurance. It will be conducted by officials with the support of clinical experts and external groups. She aims for this review to be completed by Christmas. This is progress and I welcome it, although I would have been a little happier if it had had a more independent flavour about it. I hope that the estimated cost of the scheme proposed in my noble friend’s Bill will not be exaggerated. My noble friend mentioned an estimate of £3 billion being snatched out of the air by lazy journalists—it is no such thing; it is about a third of that.
However, the cash involved should not be a factor influencing the review. It is the principle that matters. Damage was done to people, through no fault of their own, when, like the rest of us, they felt that our National Health Service could be relied upon. I believe that there is strong moral duty on government to recognise that and put it right. That is the first principle to be established.
Then we come to the matter of cash. I accept absolutely that this is perhaps not the best day of the week to be asking for cash, but I remind the House of my former constituent, Mrs Sue Threakall. She would have a robust response if the result of that review were to be, “We acknowledge that something should be done about this. Terrible tragedies have happened. Unhappily,”—to borrow a remark from an honourable friend in another place—“there is no money left”. Her husband Bob had hepatitis B and C after being given contaminated blood. What price can we put on the loss of that life and the severe financial strain put upon Mrs Threakall and her family? I have no idea what monetary sum could get anywhere near compensating for that.
When Bob died, which she knew was going to happen, Mrs Threakall said very starkly, “It just ripped the family apart”. However, because her husband died before 2003, she was ineligible for any compassionate payment, and so she and her then young family were left bereft. Now her means-tested benefits are under threat from this Government’s comprehensive spending review. Mrs Threakall lives with severe financial problems, as do so many others who the Government should now decide deserve the compensation outlined in the Bill.
The issue can be put quite simply. It is now time that the great wrong done to Bob Threakall, to his wife—his carer, his spouse—and his family is put right. That is what the Bill seeks to achieve.
Lord Low of Dalston
My Lords, I am glad to follow the noble Lord, Lord Corbett of Castle Vale, because I identify so strongly with the points of principle that he has made. However, I fear that I will be unable to articulate them with anything like his eloquence.
I add my voice in support of the Bill. I shall be brief. It is unnecessary to go over the whole sorry history of this tragedy—indeed, this scandal—which, as several other speakers have mentioned, has been described by the noble Lord, Lord Winston, as the worst treatment disaster in the history of the National Health Service. It is a textbook illustration of the truth of the great Richard Titmuss’s warnings about the dangers of allowing commercial factors to operate in something like the supply of blood products. Nor shall I go in any detail into the recommendations of the Archer inquiry or the Bill based on them, which is before us today. The noble Lord has done that for us already. I join other speakers in paying tribute to the noble Lord, Lord Morris, and the noble and learned Lord, Lord Archer of Sandwell. It is only the tireless persistence of the one and the dedicated and the meticulous investigation, analysis and documentation of the issues by the other, together with a clear-sighted prescription as to what a civilised society ought to do, that have brought us to this point.
What I find particularly deplorable is the complacency displayed by the authorities when what had happened came to light. The journey from the promise of self-sufficiency to its attainment took five years in Ireland but 13 years in England and Wales. This reflects discreditably on the administration of our health services and is something that makes us all feel ashamed. Equally shaming is the heartlessness, obfuscation and prevarication shown by successive Governments, and the cheese-paring and obstructive nature of their response. This is an indictment of the whole of our official culture in this country. Successive Governments had recourse to the device of Crown immunity, requiring sufferers to sign a waiver in respect of hepatitis C in circumstances where they did not know they might have it but the department knew they were at risk. There was resistance to the disclosure of documents to the multi-party group. There was the refusal to hold an inquiry or co-operate fully with the inquiry of the noble and learned Lord, Lord Archer, and then disingenuous reliance on the fact that there have been no findings of fault against the British Government. There was a reliance on discretionary trust funds, rather than a system of benefits as of right, to provide a measure of compensation. There was a failure to recognise the claims of widows. There was a suggestion that, unless a Government are in some way responsible for a misfortune that befalls a group of their citizens, they are under no obligation to relieve it. All these things and more can bring only shame on the reputation of this country and its handling of this tragedy, which has been so much less open and generous than that of numerous other countries.
Two things stand out particularly. One is the reliance on a system of ex gratia and discretionary payments to provide a measure of compensation, rather than a system of direct financial provision as recommended by the Archer inquiry. This smacks of the mentality of the Poor Law. Secondly, most shocking of all is the way that the state has sought to shuffle off responsibility for making amends to those who, through no fault of their own, have suffered as a result of state action or the actions of organs of the state.
The past cannot be undone. Nothing can rescue the victims and their families from what they have suffered. All we can do is make amends as best we can, and as far as measures of compensation can, at the earliest opportunity we have. The previous Government’s response fell significantly short of full implementation of the Archer report. The least this Government can do is take the first opportunity they have to right the wrong that has been done to the victims of this tragedy. The Coalition Government have already shown that they have an honourable record of doing the right thing where other Governments have done their best to obfuscate, prevaricate and shuffle off responsibility in the way that Governments do. The Government’s response to the Saville inquiry into Bloody Sunday, and the way they have grasped the nettle in relation to those who lost out as a result of the collapse of Equitable Life, gives one confidence that their instincts are sound; that they know what is the right thing to do; and that they are able to face up to their responsibility and act on it when they know it.
As we have heard, the Parliamentary Under-Secretary of State for Health, Anne Milton, has said that she hopes the matter will be sorted by Christmas. The best way for the Government to achieve this would be to give the Bill a fair wind. I very much hope that they will.
Baroness Rendell of Babergh
My Lords, I will be brief. It is Friday morning and—however serious and important the question under discussion, and this one is very serious indeed—no one wants to be too long detained. The position of those of us who support the Bill has been made very clear by my noble friend Lord Morris of Manchester and, in his report, by my noble and learned friend Lord Archer of Sandwell. We have already heard eloquent and informative speeches from four other noble Lords. I shall not, therefore, speak of statistics or the large sums of money, which have been mentioned in discussion of what levels of compensation would cost the taxpayer, or do more than touch on the clinical and medical aspects of haemophilia and its amelioration.
I am only speaking at all because I believe I am in a unique position to talk about haemophilia and those afflicted by it. Some 10 years ago I wrote a book—a work of fiction—that centred on what I called the two strands of inheritance: the inheritance of a peerage and the inheritance of a disease. This was at the time of the House of Lords Bill, and inheritance of a peerage was very much to the fore in debates in your Lordships’ House. As to haemophiliacs, their sufferings were by then being alleviated, if not cured, by modern medicine.
My book was in part a historical novel. It dealt with haemophilia in the late 18th and early 19th centuries, as well as later manifestations of the disease. I went into the peculiar nature of its genetic inheritance carefully, since many previous writers had made mistakes in this area. For this very reason I researched the whole subject with great care, investigating the discoveries made and the progress achieved at various American universities. I also used your Lordships’ Library and travelled to south-east Switzerland to see what I could discover in a village which had once been, but was fortunately no longer, the home of many sufferers from this tragic blood disease as a result of contiguity and in-breeding.
What I carried away from all this research, apart from what I needed for my novel, was an abiding indignation that, just as effective treatment was successfully allowing haemophiliacs to lead almost normal lives, these sufferers were being afflicted from an unsuspected, indeed bizarre, source. The blood that they needed—a life-giving elixir—was contaminated with some of the worst diseases known to man: HIV, hepatitis C and, perhaps worst of all, human-variant CJD. It was, in fact, death dealing. My novel ends with the descendants of those 18th century haemophiliacs leading full and active lives—the men knowing that their daughters will be carriers, the women aware that all or some of their sons will be haemophiliacs—but wise enough to become parents through adopting children. None of them could have dreamt, in fiction or in fact, that a triple plague could be visited on them through medication. None of them, in fiction or in fact, would have believed that they would have such huge premiums demanded of them by insurance companies as to be made virtually uninsurable.
When I wrote to the Guardian and the Times on this subject at the time of my noble friend Lord Morris’s earlier Bill in December 2009, outlining the tragic results of contaminated blood transfusions, I received many letters from readers. Most were from the widows and other dependants of infected people, describing how they had suffered as a result of losing the family breadwinner, which often meant also losing their homes. One told me that I was wrong to write of HIV/AIDS as being a serious disease, since so much effective medication was now provided for its victims. I hope such a view is not generally held and is not an opinion shared by opponents of the new Bill, who might then extend that principle to hepatitis C and CJD. These are terrible sufferings—even the stress and fear occasioned by HIV, as mentioned by the noble Baroness, Lady Finlay—and they are made all the worse for those afflicted, and the widows, children and families whom their deaths have left behind, by the knowledge that these diseases were received through being given the blood of drug addicts and of inmates of US prisons.
My researches taught me a great deal about haemophilia. I would not have the temerity to say that they showed me what it is like to have the disease. They did, however, teach me exactly what those sufferings may be and how to a great extent sufferers may be exempted from them by transfusions of suitable and uncontaminated blood. The transfusions received by those whom my noble friend Lord Morris has called “a small and stricken community”, which were supplied by the NHS, have unknowingly killed nearly 2,000 of them. These people were ill already. They already had a depleted lifespan. Haemophilia itself is bad enough, a daily disablement, but the treatment they were given was a case of adding insult to injury.
This is not a political issue—it makes no difference whether one belongs to the right, the left or in-between—but a moral issue. Those who took part in the previous Bill introduced by my noble friend Lord Morris—I was not among them—and those who have spoken today, have explained the situation and gone into detail, presenting various aspects of the disease and what can be done to ease it. They did so from a sense of moral indignation and resentment on victims’ part, and from a powerful sense of justice, for no explanation for the sake of clarity has been necessary. The issue is so clear that a small child could have understood it, as children can always understand what is right and what is wrong, what is fair and what is deeply unjust.
Lord Addington
My Lords, for those who speak this far down the list, not much remains to be said and most of it will be repetitious. However, we should congratulate the noble Lord, Lord Morris, on consistently coming back to this issue. He has worked on disability issues for a long time. If there is a bulldog spirit in this House—a tenacious person—he embodies it totally. It is probably worth putting on the record again the fact that he has not thought twice about hitting his own party’s Ministers hard and often. He has shown no fear about that. Party loyalty has not got in the way of his raising the issue.
I hope that the Government do not defend their position with a series of Treasury Bench-type responses, such as, “We don’t have to pay this out so we won’t”. I am afraid that previous Ministers have given such responses. I hope that we get some answers. If we cannot accept the Bill in its entirety, what can be done? That is a very important question. Moreover, what will be done in a certain phase of time? If we can find out when something will happen—Christmas has been mentioned—and what exactly that is, the degree of certainty and knowledge will help those involved. We can argue about exact details later, but that certainty would be something.
What initially got me involved in this issue, a good few years ago, was the difference in the way that we treated two groups of people—I refer to those affected by hepatitis C and HIV—who had contracted very similar conditions through a very similar process. However, because of a legal defence position, one group did not receive help. Surely we can address that at the first opportunity. If we carry on like this, we will carry on having similar debates and wasting time, leaving the people affected scrabbling in the air, waiting for something to happen and grabbing on to hope and despair. That affects their lives as well and piles not insult on insult but injury on injury. I hope that the noble Earl will be able to give us a positive response as the whole House and the entire political system deserve to be given a clear answer. If this is not the final measure that we seek, at least I hope that it will not leave us demanding a sequel.
Baroness Kennedy of The Shaws
I hope that I may make a brief contribution in the gap. The present Government have said that they want closure on the contaminated blood issue but, to achieve this, they must offer financial compensation, not charity hand-outs through the two charities that were set up, the Macfarlane Trust and the Eileen Trust.
Following the report of my noble and learned friend Lord Archer, the previous Government had agreed to make some payment to those infected with HIV by contaminated blood products and some sort of payment to their infected partners. However, they made it very clear that this was not compensation, so it falls far short of the recommendations in Lord Archer’s report and does not apply to those infected with hepatitis C by contaminated blood products. I want to reinforce what has been said by others—that we now know that those infected with hepatitis C are more likely to die early than those who have HIV.
As the noble Lord, Lord Corbett, and my noble friend Lady Rendell have said, this is a moral issue. Closure for those affected will come only with an apology from government and some sort of capital payment. That is why this Bill is so important. Clause 4(2) seeks such a payment and paragraphs (b) and (c) are particularly relevant, so that any capital payment is paid directly to the person infected, and not by way of charity hand-out. It is clear in the report and in the Bill that such a payment should not be means-tested.
That leads me to another important issue in the context of our times. I understand that many victims are literally worried sick that the spending review and subsequent welfare cuts will, if applied to any of them, have a serious effect on their presently very limited standard of living. The multi-drug regimes that many undergo on a daily basis can make them feel well enough one day but very ill the next. There is no normal day, so that any medical for, say, disability living allowance, may not accurately reflect their condition or their ability to work. It is, therefore, essential that those infected with HIV/hepatitis C be passported through any such medicals. I hope that the Minister will give us an assurance that this is what will happen.
Baroness O'Cathain
My Lords, I rise to speak briefly in the gap. I apologise to the noble Lord, Lord Morris, as I have spoken in support of him in this Chamber from the very start of his campaign but, due to my lack of attention to detail, I did not realise that this debate was taking place today. However, everything that I wanted to say has been said in the most moving and compassionate way.
Promises have been broken, victims have been betrayed and trust has been compromised—all of this, I am afraid, is accepted. I have three hopes. The first is that the response from my noble friend will be positive and compassionate. Secondly, I hope that this debt, which is much easier to settle than the debts that this Government have inherited, will be settled. Thirdly, I hope—this is probably the vainest hope of the lot—that the media will find it in their hearts to support the Bill, cover the speeches made today and realise that this debate is something on which this House scores. It is a good news story, and we have a role to play in the Parliament of this country.
Baroness Wheeler
My Lords, I, too, begin by paying tribute to my noble friend Lord Morris of Manchester, for his tenacious and tireless work in campaigning on the issue before the House today. Indeed, no one reading back through the reports of the debates on the Bill in its previous passage to Third Reading in the House, as I have done in preparing for today’s debate, can fail to admire and be very humbled by his continued determination to ensure that the plight of those whom he has described as,
“arguably the most needful minority in Britain today”,—[Official Report, 23/4/09; col. 1607.]
is fully recognised and properly financially compensated.
We recognise the important and continued role played by him and other noble Lords who have spoken in today’s and previous debates. I refer particularly to the independent inquiry report of my noble and learned friend Lord Archer into NHS-supplied contaminated blood and blood products, which received widespread all-party acclaim, and whose report recommendations form the core framework of the Bill. Like him, we welcome the consensus in the House that victims have suffered for too long. We also value his insights into his report from the perspective of events that have followed its publication. Finally, I endorse the admiration expressed across the House for the work of the Haemophilia Society and the close support that it has provided to the people infected, their carers, widows and dependants.
The debates in this House and in the other place last week recount the very personal and tragic experiences of patients, their families and those who have died. Haemophilia sufferers were plunged into a nightmare of failing health, pain, suffering, financial hardship and social deprivation. The support and campaigning work of the society over the past three decades have helped to provide solace and constant, practical everyday support, and have led to real improvements in care and financial support.
However, we readily accept that there is much more to be done. This is unfinished business from the previous Government and we regret that we were not able to respond formally to the High Court judgment and to the related recommendations in the report of the noble and learned Lord, Lord Archer, before we left office. Despite the sense of frustration at this and the belief that much more should have been done by successive Governments, the House will recognise the work undertaken by my noble friend Lady Thornton to progress through the Department of Health vital improvements such as in the administering, handling and safety of blood products and in developing further best practice and improvement in service provision for the ongoing treatment of haemophilia sufferers.
On behalf of these Benches we welcome the review announced last week by the noble Earl, Lord Howe, following the announcement and debate in the other place. It is a very positive step that will, I hope, take this matter forward towards achieving the closure that is desired in the House.
We welcome the inclusion in the review of the commitment to look at ex gratia payments made to those infected with hepatitis C, including financial support for dependants, issues surrounding the arbitrariness and injustice of cut-off dates for eligibility of the current scheme, and comparison with ex gratia payments made in the UK to those infected with HIV and their dependants. We also welcome consideration of the provision of life, mortgage protection and travel insurance for those infected in light of similar access available to other groups. As we have continually found, there is often a real difference between what insurance companies promise will be their actions on such issues, and what they actually do when considering individual cases.
In respect of prescription charging for those infected, noble Lords on both sides of the House will be aware of the previous Government’s commitment to introduce free prescriptions for people with long-term conditions, which would have included people infected by contaminated blood. I therefore ask the Minister what impact the announcement under the Government’s CSR that the free prescriptions programmes will not now be taken forward will have on the review’s consideration of this matter. Will the Government no longer honour this commitment to people infected by contaminated blood?
We also endorse the inclusion in the review of the provision of, and access to, nursing and other care services in the community for those infected. We hope this will lead to improved NHS and local authority service provision, coproduction and co-operation.
We welcome the Government’s commitment for the review to make recommendations to Ministers for their consideration by the end of the year. As noble Lords have stressed during this debate, it is crucial for this review to be conducted with the utmost expedition. I look forward to hearing further details from the Minister on who is to lead it, how it is to be undertaken, the relevant expert groups and external groups that were referred to in the other place by the Under-Secretary of State for Public Health, Anne Milton, and how the views of those infected, their relatives and carers, and other representatives will be sought and taken into consideration.
The Minister emphasised her desire for the review to be dealt with,
“openly and honestly, with clarity, without party politics, with humility and with empathy”.—[Official Report, Commons, 14/10/10; col. 568.]
We wholeheartedly agree and look forward to it proceeding without delay. Will it include an overview of all the different compensation funds established to administer payments to people infected by contaminated blood to ensure consistency of approach and decisions?
Finally, on the question of continued government funding to the Haemophilia Society, can the noble Earl confirm that the current level of funding will not be affected by the changed basis for voluntary sector funding?
In closing, I again congratulate my noble friend Lord Morris on bringing back the Bill to this House and his dedication, determination and persistence—once again so much in evidence today. We look forward to working on the Bill in its future stages in the House.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I congratulate the noble Lord, Lord Morris of Manchester, on the reintroduction of the Bill and echo the noble Baroness, Lady Wheeler, in paying tribute to the noble Lord. On a personal level, I am sorry that I was unable to be present at the Second Reading of his Bill in the previous Session, but I am pleased to be able to rectify that situation today, albeit on a different side of the House.
Since this debate was scheduled, an important development occurred in another place, which is of direct relevance to the debate today. My honourable friend the Under-Secretary of State for Public Health laid a Written Ministerial Statement on 18 October which stated that the Government are reviewing a number of aspects of the support available to those affected by contaminated blood. This includes ex gratia payments for hepatitis C, access to insurance, access to nursing and care services, and prescription charges.
I can confirm to my noble friend Lady Hussein-Ece that the review will look at a number of aspects of the hepatitis C payments scheme, including the size of payments, whether annual payments should be made, payments to spouses or dependants of those who died before the scheme was set up, and additional payments in respect of spouses or dependants of those who are still alive. The terms of reference of the review have been placed in the House Library, and I can confirm to the noble Baroness, Lady Wheeler, that the issue of free prescriptions for this group will indeed form part of the Government’s review. I believe that my honourable friend sent copies of the Statement to the noble Lord Morris of Manchester, and the noble and learned Lord, Lord Archer of Sandwell.
It is important that the House understands that this review is under way and that Ministers of this Government are not impervious to representations made to them to reconsider these matters. The noble Lord, Lord Morris, is I hope already aware of my sympathy for the group of people affected by this tragedy and the fact that I recognise and respect what he is trying to achieve with this Bill. Nevertheless, I have to be candid in expressing some reservations as to the need for legislation on this issue. We all acknowledge the plight of those affected, but in debating the Bill we should consider whether it delivers tangible benefits for those affected by this tragedy. In this respect, there are three main themes in the Bill that we need to consider: first, improving treatment and services for those affected by this tragedy; secondly, preventing a similar tragedy occurring in future; and thirdly, financial support for those affected.
I will start with the issue of improving treatment and services for those affected. This Government are firmly committed to the principle of ensuring that NHS services for all patients are of the highest possible standard, and that standards continue to improve. That principle is at the centre of our approach to the NHS. It applies as much to those infected by contaminated blood as to any other patient group. Where services are failing or inadequate, there are established procedures in place to address this. Clause 1, the main clause in the Bill, aims to establish a statutory committee,
“to advise on the treatment of haemophilia”.
The purpose of the committee would be to provide advice on the selection, procurement and delivery of therapies, as well as access to those therapies, for haemophilia patients. But what additional benefit would be gained by placing the proposed committee on a statutory footing? The only clinicians that the Bill stipulates should be members of the proposed committee are the haemophilia centre doctors themselves. I take this to be implicit acknowledgement of the effectiveness of haemophilia doctors in using their clinical expertise to secure the best treatments for their patients. We have to ask: what more is to be gained from their forming a committee?
I recognise that there is a wider issue here of patients being involved in decisions about their care and that, historically, haemophilia patients feel that they were subjected to treatment without sufficient knowledge of the risks. However, it is exactly for those reasons that the Government’s White Paper, Equity and Excellence: Liberating the NHS, published in the summer, sets out a vision to place patients at the heart of the NHS, giving them greater choice and control over their treatment, with the objective of making shared decision-making the norm. Progress is already being made in achieving this objective for this patient group through the Haemophilia Alliance, a network of patients, doctors and others involved in caring, which was established in 1999. The Department of Health now formally meets the alliance twice a year. Two such meetings have already been held and the group has unanimously agreed that it would be helpful for all parties to better understand how specialised services for haemophilia patients are commissioned, and to identify how the Haemophilia Alliance can influence service provision countrywide. The alliance is working well, and I have not yet heard a convincing rationale for replicating its role in a statutory committee.
Lord Archer of Sandwell
I am most grateful to the Minister. Does he appreciate that one matter that concerned us was the establishment of a permanent secretariat to the committee, so that one would not have to wait for a meeting of the committee before responding to something that had happened? It would monitor events as they arrived and respond to them quickly.
Earl Howe
I am grateful to the noble and learned Lord. My understanding is that there are established routes of communication to enable the alliance to contact officials in the department if such a contingency were to arise. I am not sure that the fact that the meetings are at intervals makes any appreciable difference in this context.
Clause 3 also focuses on treatment. It provides for a scheme of NHS cards for those infected through treatment with contaminated blood and blood products. These would enable access to NHS services, including prescriptions, free of charge. In fact, the majority of services specified in the Bill, such as counselling and physiotherapy, are already available in England under the NHS, where needed, free of charge. Perhaps I may venture that the real issue for this patient group is not that of cost, but whether they receive high-quality, adequate levels of treatment and care. I recognise, however, that prescription charges are a particular grievance for this patient group, and that some have experienced difficulties in accessing nursing and care services, including specialised counselling. That is why these issues are included in the current Department of Health review.
I was concerned to see that the clause also provides cardholders with priority access to NHS treatment. This could have significant implications. At one level, it would give priority access for everyday treatments such as chiropody services. At another, it could provide for jumping the organ donation queue, which, when organs are at a premium for everyone, cannot be justified. Those decisions must be based on clinical need and nothing else.
Lord Morris of Manchester
My Lords, perhaps I should explain why I made that provision. Other people know all the statistics about the disaster, but I personally knew hundreds of its victims—and now, day by day, I hear of the deaths of valued friends. That is why I approached this in the way that I did. As honorary parliamentary adviser to the Royal British Legion for many years, since 1985, I know that the priority that their members are given under the National Health Service is never abused. No one has ever said that disabled ex-servicemen abuse that privilege. I am certain that the Haemophilia Society will act just as honourably as those who so readily give their lives in the service of this country.
Earl Howe
My Lords, I respect greatly the points that the noble Lord, Lord Morris, has made. Nevertheless, it is difficult to enshrine in legislation priority access to NHS services for an individual group of patients. That is the real issue, but of course I shall reflect the point that he has made.
As I have indicated, the issue is whether patients infected with contaminated blood receive prompt access to the necessary treatment, based on clinical need. I have heard no reports that anyone in this patient group faces difficulties in this regard. I therefore argue that nothing in the Bill would improve treatment or services for those affected by contaminated blood beyond what is already on offer from the NHS or the Department of Health, or is being considered by Ministers.
I turn now to the critical issue of making sure that no similar tragedies occur in future. The Government are firmly committed to ensuring that the blood supply is as safe as possible, and we continue to work to provide ever safer blood and blood products. Clause 2 provides for haemophilia patients to be offered testing for a number of specified infectious agents, and for blood donations to be screened for those agents; yet testing for all but one of the agents is already available to haemophilia patients, and all blood donations are screened for those same agents. The sole exception is variant CJD, for which there is currently no validated test available. We cannot legislate on something that it is currently not possible to implement. The Bill rightly acknowledges that the list of agents for which the blood supply is screened needs to be kept under constant review. There are effective systems in place to ensure that this is done, both within the UK blood services and also through the Advisory Committee on the Safety of Blood, Tissues and Organs, SaBTO—which I can assure the noble Baroness, Lady Finlay, will continue to exist. Therefore, there is no need to replicate this function on a statutory basis.
The Bill also provides for the introduction of prion filtration. The Government are currently undertaking an evaluation of the costs, benefits and implications of prion filtration to inform our decision on whether to implement this recommendation. We do not need primary legislation to do this.
Finally, blood safety is regulated by European directives that set standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components. Blood products such as clotting factors are regulated in accordance with the Community code for medicinal products. Therefore, there is nothing in the Bill that would improve the safety of the blood supply. I fully support the principle of making the blood supply as safe as practically possible, but it is not appropriate to use legislation to require the blood services to adopt a specific technology such as prion filtration. Such legislation cannot properly take account of emerging scientific advances, and it is important for the blood services to retain the flexibility to introduce the most appropriate measures on the basis of expert advice.
I now turn to the subject of Clause 4, the issue of compensation. In recognition of the plight of those affected, the Department of Health has already set up ex gratia payment schemes for those infected with HIV and hepatitis C. It is worth pausing to lay out the level of financial support currently available to people in this group. Those infected with HIV receive a flat-rate payment of £12,800 a year. They may also be eligible for additional discretionary payments. In the year ending April 2010, the average total payment to an individual infected with HIV was £17,400. Those infected with hepatitis C are eligible to receive an initial one-off lump sum of £20,000 when they develop chronic infection. Despite contracting the virus, some people will make a full recovery. However, others may go on to develop serious liver disease. For this group, there is a second one-off lump sum payment of £25,000. All these payments are tax-free and are not counted when calculating individuals’ eligibility for state benefits. Therefore, if they are unable to work for health reasons, they will receive state benefits in addition to these payments.
One of the key elements of this clause is subsection (4), which states that,
“the Secretary of State shall have regard to any comparable compensation schemes offered in other countries”.
I should like to inform the House that previous Governments did indeed have regard to comparable schemes when the Macfarlane and Eileen Trusts for HIV were first set up, and we are taking account now of schemes elsewhere. The current payments for those with HIV generally compare very favourably with payments in other countries, and I direct that remark particularly to the noble Lord, Lord Low of Dalston.
I acknowledge that there are anomalies between the current payments for HIV and those for hepatitis C, whose payments are less favourable. That is why the Department of Health’s current review includes payments for hepatitis C, as well as looking into whether there are any alternative payment mechanisms. In the light of that, the House needs to consider what purpose there is in trying to legislate on this issue.
Finally, Clause 5 requires the review of a number of issues which were covered in the previous Government’s response to the report of the noble and learned Lord, Lord Archer. Again, the question is whether any benefit is to be gained from putting this work on a statutory footing.
The one issue in Clause 5 on which I should like to comment specifically concerns medical insurance. I am aware that patients infected with HIV and/or hepatitis C by contaminated blood either cannot obtain health insurance or are subject to a significant premium loading. However, one of the underlying rationales of the welfare system here in the UK is to provide services for those who cannot obtain insurance, for whatever reason. The whole point of the NHS is that people should not need private medical insurance. For the state to assist a particular uninsurable patient group to obtain private medical insurance would, I believe, set a dangerous precedent that could undermine the core principles of our welfare system.
In conclusion, I should like to address a few of the questions raised in this debate, dealing first with some of those raised by the noble Lord, Lord Morris. He asked what the Government have done in relation to the recent case of variant CJD having been found in a haemophilia patient. My advice is that, although these concerns are of course very understandable, no haemophilia patient has ever developed clinical variant CJD.
The noble Lord, Lord Morris, asked about the calculation of the £3.5 billion—a point mentioned by a number of other noble Lords. A note of how much the department estimated it would cost to replicate the compensation scheme of the Republic of Ireland in the UK has been placed in the Library, and I refer noble Lords to that document.
The question of comparability with Ireland was raised not only by the noble Lord, Lord Morris, but by the noble and learned Lord and the noble Lord, Lord Corbett of Castle Vale, among others. I have taken the opportunity of looking carefully at this comparison. From what I have seen, I am satisfied that the Irish scheme was set up in response to a very specific set of circumstances which are unique to the Republic of Ireland, and I say that not least for the following reason. In an article in the Irish Times dated 5 August 1997, Brian Cowen, then Minister for Health and Children in the Republic of Ireland, and currently Taoiseach, confirmed that the Irish Government knew in 1995 that the Blood Transfusion Service Board had been negligent and had attempted to conceal this fact. I do not believe that I have ever heard the noble Lord, Lord Morris, or others acknowledge the contents of this article.
The noble Lord, Lord Morris, raised the question of Crown immunity in respect of Bio Products Laboratory. I understand that the activities of BPL were covered by Crown immunity and therefore fell outside the requirements of the Medicines Act until 1991. Therefore, it could not be prosecuted under the Act. This immunity did not protect from civil suit but only from prosecution under the Medicines Act. Indeed, some affected persons brought an action in 1988, which was settled out of court. Affected persons did and do therefore have rights of redress in civil law. Our legal advice is that permitting prosecutions under the Medicines Act after all this time would be seen as unfair and oppressive by the courts for various reasons, not least the breach of the European Convention on Human Rights.
The noble Lord, Lord Low, called into question the use of commercial blood products. Most countries experienced similar tragedies as a result of contaminated blood and blood products—even countries that were totally self-sufficient. The fact that the UK domestic blood supply was also contaminated with these viruses does not therefore mean that the tragedy could have been avoided if the UK had been self-sufficient in blood and blood products.
The noble Baroness, Lady Kennedy, asked about the future of benefits in this context. My honourable friend the Parliamentary Under-Secretary of State for Public Health said during the Back-Bench debate in the other place last week that she would be raising the issue of benefit payments with the Minister responsible, and at this point I have nothing to add to that assurance.
I urge the House to consider the Bill very carefully. The contaminated blood issue is enormously emotive, but we should not be passing legislation simply because we have compassion for those affected. All legislation passed by your Lordships’ House must deliver meaningful benefits. I have argued that any changes that this Bill would introduce are limited. Some are impossible to deliver, some are inappropriate, and the tangible benefits that might arise from others are unclear at best. The Bill will not of itself improve patient safety; it will not of itself improve treatment or services; and it will not of itself influence Ministers to agree to more generous ex gratia payments for this patient group. I refer again to the review currently under way. For these reasons, I respectfully suggest to the noble Lord that there is no need for recourse to legislation on the issues that he has brought before us.
Lord Morris of Manchester
My Lords, the speech of the noble Earl, Lord Howe, will cause further despair in the haemophilia community. He will see tomorrow morning in the Official Report the references that I made again and again about the situation in Ireland. The quotation that the noble Earl came out with is somewhat dated. He will find that the timing, the reasons and the case for action taken in the Irish Republic was already on the parliamentary record. He quoted a former Minister. I have been in touch with present Ministers and with Brian O’Mahony, the chief executive of the Irish Haemophilia Society. The Minister can be certain, as I said, that notwithstanding everything that he has said this morning, if the struggle has to go on, then go on it will until right is done to the victims of this worst ever treatment disaster in the history of the National Health Service. I beg to move that the Bill be referred to a Committee of the whole House.
Building Regulations (Review) Bill [HL]
(14 years, 1 month ago)
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Lord McKenzie of Luton
My Lords, it is with great pleasure that I rise briefly to support my noble friend Lord Harrison. He makes a powerful case for his Bill, which I support. I also pay tribute to his commitment to the cause of fire safety, which he demonstrated again towards the end of the previous Parliament in a Bill truncated because of the general election. Like my noble friend, I take this opportunity of placing on record a tribute to the fire and rescue services, their dedication, their bravery and all they do in keeping so many of us from harm’s way.
If I may say so, I think the approach of this Bill is better than that of the previous Bill. It is seeking a review of the building regulations and an impact assessment of the possibility of automatic fire suppression systems being included for new residential premises. It sets out the matters which should be included in this assessment, but allows for factors outside the list. I have no doubt that the Minister, in giving a government view, will be able to refer to the evidence base which is anyway being assembled in connection with a review of Part B of the building regulations, but there is no reason why this could not be encompassed within the assessment that my noble friend is seeking in the Bill. While Part M of the building regulations is not due to be formally reviewed until 2013, the long lead time needed for changes would not seem to be inconsistent with the 12-month timeframe called for by this Bill.
The BRE research that underpinned the previous update of the building regulations was a bone of contention, and there was no meeting of minds about whether its analysis took account of all the evidence. The Bill presents an opportunity to move on from that, and it is encouraging that the Chief Fire Officers Association is now working on a project with the BRE to update the research. Perhaps the Minister would also take the opportunity to update us on progress on a couple of the research projects that were in train when we left office, particularly the trialling of low-cost sprinkler systems in Lancashire, Kent, Suffolk and Northumberland and the commissioned research looking at the cost-effectiveness of sprinkler systems in high-risk buildings.
My noble friend’s Bill rightly calls for an impact assessment looking at costs and benefits. I have no doubt that we will hear other contributions today which remind us of the fragility of the current housing market and the challenges facing the housebuilding sector, which were not made any easier by the draconian cuts to capital for affordable housing of which we were informed just this week. It is also right that we consider these in the longer-term context. My noble friend’s earlier Bill focused on sprinkler systems for new residential property, not the retrofitting of existing homes. Whatever the conclusions of the review and the impact assessment, we need to continue with a robust, proactive fire safety strategy. That involves efforts to reduce the incidence of fire through education, information and publicity, and in particular reminding people of the importance of having working smoke alarms installed in their homes and regularly testing them. We have seen a dramatic increase in smoke alarm ownership, helped in part by a pump-priming funding stream, which was then mainstreamed for fire and rescue authorities in the revenue support grant of those authorities.
My noble friend Lady Smith of Basildon will say more about this, but any assessment of the costs and benefits of sprinkler systems will doubtless give some regard to the capacity of the fire and rescue authorities to carry out their preventive activities at current levels. The cuts of 25 per cent in support grant will not make this easy. Making up the difference with council tax increases is hardly an option, especially with a squeeze on council tax benefit.
What my noble friend’s Bill seeks is entirely reasonable. It seeks facts and analysis about the impact of installing sprinkler systems in new residential properties and asks that this work be reported to Parliament when completed. It would seem consistent with, and could be accomplished together with or alongside, work streams that might already be under way in connection with an update of the building regulations. It presents the chance to try to resolve a difference of view that is not just about some theoretical or technical debate but about improving fire safety, saving lives and reducing the devastating consequences that a fire can inflict on individuals and families. My noble friend deserves our support and praise for his unswerving commitment to this cause.
Lord Tope
My Lords, I, too, give my thanks to the noble Lord, Lord Harrison, for introducing this Bill and for the full and careful way in which he did so and explaining how it differs from the Bill that he introduced before the last election. I am very grateful to the noble Lord, as I am sure we all are, for meeting those who moved amendments to the previous Bill and for meeting so many of those concerns in the Bill that he has presented. We must all be grateful for that. I am pleased, too, to hear that the Chief Fire Officers Association has formed an interest group to carry forward this research and to update the research that was carried out in 2004 by the Building Research Establishment, implemented in 2006. As both previous speakers said, that research was in part controversial and certainly needs to be looked at again, and I am very pleased that the Chief Fire Officers Association has taken the initiative in doing that. I am even more pleased that it is being done at no cost to the taxpayer, particularly in view of the announcements this week. I should be interested to know when the results of that research will be available, because I am sure that we will all look at it with very great interest.
I hope that the Minister will confirm not only that his department will take part in this research, but that it will play a positive role and, in so doing, dispel the belief that exists in some quarters—wrongly, I am sure—that CLG is somehow anti-sprinkler. It would be a reassurance to all of us to know that CLG welcomes the initiative of the Chief Fire Officers Association and will play a positive role in it—not necessarily an uncritical role, but a positively critical role.
All of us recognise the important part that sprinklers play in the control of fire. Noble Lords will know that my background is in London; I am a former Member of the London Assembly and before that was a member of the London Fire and Civil Defence Authority, so I have some limited interest and knowledge in all this, and I have consulted the London Fire and Emergency Planning Authority for its view. LFEPA tells me that sprinklers control 99 per cent of fires in buildings fully protected by sprinklers, and that losses from fires in buildings protected by sprinklers are estimated to be one-10th of those in unprotected buildings. LFEPA—and I remember former Mayor Livingstone saying that it sounded more like a tapas bar than a fire authority—advocates that sprinklers should be fitted in domestic properties where the most vulnerable live, in addition to smoke alarms. The noble Lord, Lord Harrison, in introducing the Bill, made the case very well. LFEPA says that the impact of fire is grossly disproportionate, in that 30 per cent of fire victims have limited mobility, whether through age, physical disability or loss of mobility occasioned by drink or drug abuse, which may be more the case in London than in many places. In all those cases, smoke alarms alone are not likely to be sufficient. Again, as the noble Lord pointed out, the demography of our nation means that this problem is, sadly, more likely to increase than decrease.
Few of us would disagree that the greater and more effective use of sprinkler systems is desirable. The real question is how best to bring that about. I know that neither this Bill nor the Chief Fire Officers Association necessarily seeks further legislation or regulation, but perhaps better regulation. Whether that needs another expensive government review—or, indeed, whether such a review needs to be expensive—I do not know. Whether it is necessary so soon after the implementation of the 2004 review, I am less sure. Certainly, we should have the outcome of the CFOA review first.
I now digress a little, as this is a Second Reading debate. We will all agree that fire prevention is even better than fire control. I have been approached by NICEIC, which has regulated the UK electrical industry on a voluntary basis since 1956. It tells me that in 2007 there were over 43,000 fires of electrical origin in the UK, nearly 8,000 of which were due to electrical fault. NICEIC believes that it is imperative that standards of electrical installation work are not impacted on adversely by potential future changes to the building regulations. It believes that building regulations can be improved to reduce the burden on local and central government, as well as to the tradesmen belonging to a competent persons scheme. Those schemes are working well, but better regulation enforcement and promotion are needed. There is a need to ensure compliance and consistency in the building regulations so that practitioners, as well as consumers, can have confidence in the standards of the electrical work carried out. NICEIC contends that if industry were to take responsibility for the future development of the technical requirements contained in approved documents, such as approved document P, there would be greater clarity and industry support, thereby ensuring consistency and compliance. This would reduce the burden, in terms of staff time and costs, on central government.
I am sorry that I was not able to give the Minister notice of this concern and, of course, I do not expect him to respond today. However, I know that these concerns are known to his department and I should be grateful if he would arrange for me to get a response in due course.
I also know that my honourable friend Andrew Stunell in another place is undertaking a review of building regulations on behalf of the department. I happen to know, because I have known him for a long time, that it is a subject in which he has taken a personal interest for many years and on which he is very knowledgeable—something that I certainly do not claim for myself. I am sure therefore that the results of his review will lead to very much better regulation. Better regulation certainly does not mean more regulation, nor, necessarily, less regulation. It is what it says it is—better regulation. It is regulation that is clear in its objective and capable of effective enforcement, which of itself must therefore mean greater compliance.
I end as I began by thanking the noble Lord, Lord Harrison, for introducing this Bill and thus stimulating further debate on this very important subject.
Lord Best
My Lords, I congratulate the noble Lord, Lord Harrison, on bringing forward this revised version of his earlier Bill. During Committee on the noble Lord’s previous Bill, I moved an amendment to his proposal for a mandatory requirement for the installation of domestic sprinkler systems, changing this to introducing a review in consultation with representatives of house purchasers, tenants, housebuilders, housing associations and other interested parties to ascertain the feasibility of amending the building regulations. I am therefore very pleased with the noble Lord’s mark 2 Bill, which follows this line.
I declare an interest as chairman of the Hanover housing association, a charity which provides 19,000 homes for older people. My remarks relate particularly to the building of new homes for this age group, which, as the noble Lord has pointed out, is the main target for the changes in the building regulations which eventually may emerge from this initiative.
The housing associations, including Hanover, are keen to find ways to keep our residents safer and to lower the costs of damage if there are fires in our buildings. Sprinklers would achieve that. I would add a further point in favour of installation of sprinklers in new homes; that is, the advantage in terms of design. With sprinklers in place, it is possible to have open-plan apartments without the ventilated lobbies and cumbersome internal walls that are necessary because of current fire regulations. I have witnessed many excellent and well designed open-plan apartments for older people in Switzerland, Germany, Sweden, Denmark and the Netherlands, where architects and residents have been liberated from the requirements for boxed-in lobbies that use up space and restrict design options. I recommend that any reviews look at European experience and that from the US. Indeed, some American providers of care homes are now operating in this country and bringing with them a knowledge of sprinkler systems from which all of us can learn.
Perhaps I may list some of the questions which the review of the building regulations envisaged by this Bill would need to address. On capital cost, we need to know how much a new system will cost to install, but we also will need to know how much is likely to be saved on an average basis as a result of the installation. If each fire costs less because there is less damage, quite apart from the saving of lives, that advantage means we need to know what savings will result. If there is a net additional cost to the provision of the new homes, we have to ask whether this is affordable at a time when we are trying to invest more in other ways in new housing—namely, in the sustainability of new homes and moving up to the levels of the code for sustainable homes—and in investment in accessibility of new housing to achieve full lifetime home standards, meaning that all homes are spacious enough and well planned enough to accommodate all mobility problems that any of us may encounter in our lifetimes. Will something else have to give if we add expenditure on sprinkler systems to the capital costs of each new home?
The Hanover housing association and all housing associations, not least because we are very worried by the cuts announced earlier this week, are having to look at the capital costs of everything that we do with the utmost care. We are trying to trim any possible frills in anything that we build and we would need to be convinced that the cost benefits are really there before adding any extra burden to the total expenditure.
Leading on from that, there will be ongoing costs. What will these be in terms of maintaining the system? For example, there may be repairs if pipes burst, perhaps because they always have to be kept filled during the winter months, and regular checking and servicing of the system to see that it works. There also may be offsetting costs. For example, will insurance companies reduce premiums because fire claims are likely to be fewer and smaller? But if there are net costs—I gather that the estimate for servicing the systems will work out at around £150 per annum or £3 per week—will this be welcomed by the occupiers who have to pay? Does research with consumers and residents suggest that they would see this as a priority for extra spending?
At Hanover housing association we are having to increase service charges in many of our schemes because help from the Supporting People grants has become tighter. Residents never like to pay more. While £3 per week could well be worth paying, before adding it to the rising costs facing tenants we would need to get buy-in from those residents since they will be paying the bills. This is not the place to express my anxieties about the future for housing benefit, but it is possible that the support for tenants’ rents will be reduced in the future. If so, adding any additional burden might be impossible.
The noble Earl, Lord Cathcart, in the earlier debates pointed out that expenditure here would not reach any existing homes. Some 85 per cent of existing stock will still be with us in 2050. One has to ask whether the same amount of investment going into a relatively small number of new homes might not do more good if it were to be spread among the most hazardous buildings and existing accommodation where fire hazards may be greater. There will be opportunity costs involved here.
In talking to colleagues, questions have been raised about behavioural aspects of this issue and how people may react to the introduction of sprinkler systems. For example, at present, if a smoke alarm is triggered in a development of apartments for older people, the advice for all those adjacent to the fire is to stay put. The doors of the flats will hold back the spread of fire until help arrives. It is not a good idea for older people to pour out of their flats and try to get out of the building. Will the presence of sprinklers, whether they go off or whether residents believe that they will go off, lead to more people trying to get out of their flats when a fire alarm sounds? Could that lead to more accidents and harm than the current system? Could our own forgetfulness and occasional ineptitude mean that sprinklers could cause as much damage as they prevent—for example, when the toast is badly burnt and smoke fills the kitchen? Will residents worry about false alarms and systems soaking their flats for no good reason? These are some of the points that I hope a major review could investigate.
I support the noble Lord, Lord Harrison, in pressing the case for this review. I certainly pledge the expertise of my organisation, Hanover, with its excellent architectural advisers such as Sidell Gibson and PRP—as well as, I am sure, the input of the very articulate and well informed residents in our retirement housing—to assist in any way we can. I wish the Bill well.
Lord Hoyle
My Lords, as I am the last to speak before the Front-Benchers, your Lordships will be pleased to know that I am not going to make a very long speech. If I did, I would be as popular as the fourth official at the Reebok Stadium if Bolton Wanderers were beating Manchester United one nil and he allowed four minutes’ extra time.
However, I could not not be here this morning to support my noble friend, having supported him in his previous Bill, because it is very important that we examine this proposal. His proposal now does not go as far as his previous one, which called for it to be mandatory policy to fit sprinklers, but goes along with building regulations. The noble Lord who just spoke raised some interesting questions. He asked: would it be better, instead of putting sprinklers in every new house, to look at the most hazardous buildings and fit them there, where more people might be at risk? That is certainly something that we need to look at. I hope that the Minister's speech does not concentrate solely on the cost. There is a cost—that has been illustrated—but what is the cost of losing a life? That is what we have to pose everything against.
I am very pleased that my noble friend has the support of the chief officers in the fire services, because none of us here can pay enough tribute to them for their work, and we must take note of their going along with proposals under which they feel that we could make people safer against fires. It is quite right that my noble friend concentrated on the changing circumstances of society. Elderly people will remain in their homes for longer. They will be more vulnerable because of that, especially to fires—or they may cause fires.
I raise another instance that can arise with fires, which involves young couples with children who are in different rooms. It is difficult to get them out in time. As my noble friend said, it can take up to 10 minutes for the fire service to arrive, but a sprinkler can prevent that fire in three minutes. Imagine the anguish that people face if they have children in other rooms. Sometimes they have to decide which room they can get into and which child they can save. If sprinklers begin to help to save their lives, that will be very well worth while.
My noble friend was also right when he said that the examinations that have been made under building regulations are not up to date in looking at the appropriate facts. We must look at the fitting of sprinklers not only in this country but where it has been mandatory, in Vancouver and certain parts of Arizona. There, we see quite a different efficiency applied to sprinklers. They say that fire deaths have all but been eliminated, that injuries have been reduced by 85 per cent, that there has been an improvement in fire fighters' safety and that property damage has been reduced by 90 per cent. Those are figures that we must take into account when reaching a decision on this matter.
My noble friend is not calling for something that is mandatory at this stage, but for a new look at sprinklers. He is not asking for a complete review—I know that the Minister may say in reply that they have had a review and that it is complete. All my noble friend is asking for is for us to look again at the question of fire safety in relation to sprinklers. Finally, if the facts that we have available from other countries that have tried it out have shown that lives can be saved and property damage reduced, that would be worth while and certainly ought to be looked at in depth, because if we can save one life as a result of this debate, this Bill will have been very worth while. I welcome it.
Baroness Smith of Basildon
My Lords, the Bill before us today is the result of discussions on amendments made to the Bill introduced by my noble friend Lord Harrison in the previous Session of Parliament. I add my appreciation of the work that he has done and endorse the comments made by other noble Lords. His tenacity and commitment on this issue is to be congratulated.
His Bill, the Building Regulations (Amendment) Bill, sought to amend the building regulations to make the installation of domestic sprinkler systems in all new domestic buildings a mandatory requirement. The Bill before us today, the Building Regulations (Review) Bill, would ensure that building regulations are being reviewed and that the latest and most up-to-date research available is used to assess whether it is effective—including cost-effective—for sprinkler systems to be used in new homes.
Reading through your Lordships’ debates at that time, it is clear that there was considerable support in your Lordships' House for fire reduction measures and sprinklers, and with good cause. As my noble friend Lord McKenzie stated in the previous Session, we have common cause on this issue. That has been clear today as well. There were some concerns about the precise focus of the Bill. I congratulate my noble friend Lord Harrison on bringing forward this measure today, to which I hope that the Government will give speedy passage and effect.
There are very good reasons to ensure that the Bill becomes law. The statistics for the number of fires show a huge fall—it is quite remarkable. A number of factors are responsible for that. Fire safety legislation has been brought in, including legislation on smoke-retardant furniture, which has meant fewer incidents of furniture catching fire quickly. The fire service has done incredible work promoting awareness of fire safety. Of course, the promotion and installation of smoke alarms has also had a major impact. As a result of all those measures, the number of fires in England has been steadily falling. Last year, in 2009-10, it was down by 3 per cent on the previous year, and there were 32 per cent fewer fires than 10 years ago, although there were some annual fluctuations. Even more welcome is the ongoing downward trend in deaths and casualties from fire incidents. Last year there were 55 per cent fewer deaths than 25 years ago.
I have been a patron of the Burned Children’s Club, an amazing charity based in Essex with a national reputation, which started in Basildon. The charity works closely with the fire service and provides support for children and young people who have been badly injured by fire. It was founded and is run by a remarkable woman, a former burns unit nurse, called Pat Wade. Many of us have seen the devastating effects of fire, but unless you have experienced it, it is hard to understand the impact it can have on a young life. A child who has been horrifically burned may be unable to use one or more limbs, or may have scars and injuries that create a host of medical and social issues for many years to come.
We also have to consider the impact on fire fighters themselves. When a fire fighter goes to work, they never know what they may face that day, but they have to be prepared to face any situation. They may spend the day advising on and installing smoke alarms, or maybe talking to schools and groups, but equally they may be required to enter a burning building. I have served as a Fire Minister both in England and in Northern Ireland, and previously on a fire authority for eight years. When a fire fighter dies or is seriously injured in the course of his or her duty, it is something that affects not just their family but their colleagues and the wider fire service family in a way that is profoundly and deeply upsetting. One of the reasons I feel so strongly about the need fully and properly to consider the issue of sprinklers in domestic properties is having met those whose lives have been forever changed by fire. If there is anything we can do to reduce the likelihood of such deaths and injuries, and make people safer in their own homes, we have a duty to do so.
The great hope has been that fire deaths have reached a plateau and that the efforts made will ensure that the numbers remain low, protecting both the public and the fire service, but the fear is that without greater efforts now, we could see an increase. My concern is that the risks are increasing, and there are a number of factors for why this is so. As we heard from my noble friend Lord Harrison, we have an ageing population and a greater proportion of older people who are more likely to be living at home. We also have a greater number of people with disabilities or with mobility problems who are living at home. Changes in social care reflect this pattern. We also now have more timber-framed homes, more people work from home, and we have to take on board cuts in fire service budgets.
The Chancellor, George Osborne, said in the CSR Statement, which was repeated in your Lordships’ House this week:
“In recognition of the important service provided by the fire and rescue service, we have decided to limit its budget reductions in return for substantial operational reform”.—[Official Report, Commons, 20/10/10; col. 953.]
At the same time, the Department for Communities and Local Government was sending out a notification of the cuts to be made to local fire authority budgets that amount to a staggering 25 per cent of the formula grant. Different fire authorities receive a different proportion of their funding through the grant, so the impact will not be uniform across the authorities. For my own authority in Essex, it amounts to about 13 per cent of the budget, at probably over £8 million. In Staffordshire, the cut will be around £4.5 million, and it will increase in each year of the spending review period. I understand that the Fire Minister has committed to working with the fire authorities on this, but I find it difficult to understand how such a level of cuts can ever be achieved through operational reform without impacting directly on the level of service that fire authorities will be able to provide.
We do not yet know what the cuts in the fire service will mean. Chief fire officers, along with the fire authorities, will look at how they can manage this in the best interests of the service, and the Fire Brigades Union will no doubt have to undertake an analysis of what this means for its members. Your Lordships will appreciate that this is very recent news and there has not really been time to digest and understand the full implications, but it is impossible to divorce the implications of such high and unjustified budget cuts from the need to take an urgent look at all ways to improve fire safety, taking into account the other pressures I have referred to.
No one wants to see unnecessary legislation or legislation that is overly bureaucratic or disproportionate to the issue. So, when looking at this issue, we need to examine the factors already referred to, as well as the cost to the economy, as we have heard, of fires and fire damage, which is substantial and runs into billions. Many buildings in this country already have sprinkler systems in place, and our building regulations recognise their contribution to fire safety. Where sprinkler systems have been installed, fire deaths have been almost eliminated, fire injuries reduced by 85 per cent, and there have been significant improvements in fire fighter safety. There is also a significant reduction in property damage, both by tackling the fire earlier and by using less water through sprinkler systems and the fire service. The evidence about sprinklers that is available already is encouraging, and the Bill before us today will enable us to use evidence from other parts of the world where fire sprinkler systems are already a statutory requirement.
My noble friend Lord Harrison’s Bill seeks to address these issues by examining, in a building regulations review, costs, benefits, the environmental impact, the impact on fire fighters and sustainability—in short, all the relevant factors. The noble Lord, Lord Best, expanded on these and raised further concerns that can be addressed in the review. I share his concern about fire sprinklers going off unnecessarily. Every time I cook in the kitchen, the fire alarm goes off. However, I am told that sprinklers are much more sophisticated than smoke alarms.
My noble friend Lord Harrison also referred to the cost issues and the support of the Chief Fire Officers Association. The work it is already undertaking with the BRE can be expanded to take into account the provisions of this Bill.
My noble friend Lord McKenzie referred to work that has recently been undertaken. I refer the Minister to the recent research, A Cost Benefit Analysis of Options to Reduce the Risk of Fire and Rescue in Areas of New Build Homes, with specific reference to the Thames Gateway. The research did not recommend that all new homes should have sprinklers. One of its reasons was that in the Thames Gateway the fire and rescue service level is relatively good, with adequate resources for relatively low levels of utilisation. However, if resources are cut, it will make it more essential that we look at other means of fire prevention and of protecting the public. When Part B has been reviewed—we know it is being reviewed now—will he promise the House that he will ensure that building regulations are reviewed and that the provisions in this Bill will be taken forward as part and parcel of that review?
My noble friend Lord Harrison has done this House and the interests of fire safety a great service in bringing this Bill forward. It provides the most relevant and up-to-date information and evidence that can be assessed and tested. I hope the House and the Government will give the Bill all the support it deserves.
Earl Attlee
My Lords, I congratulate the noble Lord, Lord Harrison, on introducing this Private Member’s Bill. Fire safety is clearly a matter of great concern to us all and I know that the noble Lord has taken a considerable personal interest in the subject. I am grateful for the way in which he has carefully explained the background to his Bill. He spoke movingly of the victims and the increasing vulnerability of the population, a point also strongly made by the noble Baroness, Lady Smith.
I shall not get drawn into a dog fight about the Budget because the noble Lord’s point is a technical one about how we can best reduce casualties. Fire safety strategies are starting to succeed: fire deaths in the home in England have halved since the 1980s and the long-term trend is downwards. However, there are still too many. In 2008, 213 people perished in accidental fires in the home—and, of course, one fire death is one too many. We all remember the events of 3 July last year and the devastating fire in Lakanal House, Camberwell, in which six residents tragically lost their lives; and then, on 6 April this year, firefighters James Shears and Alan Bannon died in the line of duty at Shirley Towers in Southampton. I join many noble Lords in their fulsome tributes to those in our fire service who have to take great risks indeed. As a noble Lord pointed out, they go to work and do not know what is going to happen that day; it is a complete mystery.
Recent statistics suggest that the long-term downward trend is beginning to plateau. We are anxious to see how deaths can be reduced still further and we will not allow the status quo to obtain; we will constantly look to see how we can reduce casualties. I am sure that that is exactly what the noble Lord, Lord Harrison, seeks to do with his Bill.
Since 1997, the key strategy to reducing preventable fire deaths has been through community fire safety activities. This involves efforts to reduce the incidence of fire through education, information and publicity. The noble Lord, Lord McKenzie, made important observations in this area, a key one of which was the need to regularly test smoke alarms. The installation of properly maintained smoke alarms in every household is at the centre of these efforts as they provide vital early warning of fire, enabling people to escape.
The Fire Kills campaign has, for some time now, conducted high profile campaigns promoting smoke alarms which have proved very successful. While building regulations have an important role to play, this kind of campaign benefits the whole population, not only the occupants of newly built properties. Ownership of smoke alarms in England now stands at 85 per cent of households and they can be purchased relatively cheaply. We are seeking to raise awareness of their value as evidence suggests that those who do not have them are often in the groups that are most at risk from fire. The noble Baroness, Lady Smith, spoke about how devastating fires can be to individuals and important charitable activities in Essex.
Initially a freeze was imposed on all government awareness campaigns while their effectiveness was assessed. However, I am pleased to say that the Cabinet Office’s Efficiency and Reform Group has recognised that the Fire Kills media campaign delivers measurable public safety benefits and we are, therefore, continuing to support this important and effective programme. The national campaign developed by DCLG will work with the fire and rescue services and the commercial and voluntary sectors to seek out new opportunities, creating hooks that can be utilised at the local level.
In these difficult economic times, an important part of the Government’s strategy for financial growth is to support business by adopting a deregulatory policy. The Government will regulate to achieve a policy objective only if it can be shown that regulation is the last resort. In addition, the one-in, one-out rule for regulation means that when the Government introduce a new regulation, they must first identify an existing one to remove so that the number of regulations does not increase. This groundbreaking approach makes it clear that all non-regulatory routes must be exhausted before any new regulation is brought in.
The Government are determined to make it easier to build the homes that this country needs. Appropriate building standards, applied sensibly, help both builders and communities, but they can be effective only if they are easier to understand. That is why we are committed to simplifying the process for housebuilders to meet the standards that communities rightly demand. This work to cut red tape will complement the review of building regulations launched by my colleague Andrew Stunell earlier this year.
We have called for views on how building regulations can be improved, added to or slimmed down. We have also asked for suggestions as to how we can deliver even better levels of compliance in the future. We will listen to these ideas and those from the Cabinet Office’s Your Freedom and my own department’s Cut Red Tape exercises. We plan to announce the results around the end of the year. It has been suggested that there should be greater requirement for sprinkler protection in building regulations for residential and domestic buildings and for public and commercial buildings. These comments will be given due consideration, but there is little new evidence to suggest a need for change.
I am well aware of calls for the building regulations to be amended to require sprinklers to be provided in new dwellings and other new domestic buildings. We recognise the significant role that they can play in life and property protection and in public safety. We do not consider that it is necessarily for the Government to dictate to the business sector how to manage its business risks. If the fire industry or fire and rescue service consider that greater fire protection would be good for UK businesses, they should take the case directly to building owners rather than to Government.
There are already provisions in the building regulations for the use of sprinkler protection. Part B deals with fire safety and Requirement B3 covers internal fire spread within a building. This already sets out that, subject to the size and intended use of the building, suitable fire suppression systems such as sprinklers and sub-division by fire-resisting construction should be provided. The Department for Communities and Local Government also issues guidance in the form of Approved Document B, which sets out what is considered to be a reasonable provision to satisfy the requirements of Part B. Sprinkler protection for certain non-residential buildings has been included within this guidance for some time to cover those premises where such a provision is considered proportionate to the risk to people in and around the building from fire.
Provisions for sprinkler protection in domestic and residential buildings are also given in the latest edition of Approved Document B which was published in 2006. This included provision for sprinklers to be installed in tall blocks of flats over 30 metres in height and included their use as an option in residential care homes. This option offers an alternative to an otherwise more onerous set of standards for care homes introduced at the same time.
This is just one of a range of measures that can be varied where sprinkler systems are installed. The benefits that such installations can offer are explained in the approved document and the guidance is structured so that those benefits are realised in reduced construction costs.
The changes made in 2006 drew on an extensive four-year research project looking at residential and domestic sprinklers from both an effectiveness and cost-benefit perspective. Since then, the previous Government also commissioned a project looking at the installation of sprinklers as an active protection measure where large numbers of houses were being built at one time. It had been suggested at the time that sprinklers might provide an option to address the fire and community safety needs of areas such as the Thames Gateway and perhaps avoid the need for increased fire and rescue services. The study concluded that this was not a cost-effective solution. The noble Baroness, Lady Smith, also referred to that and I will read what she said carefully in Hansard.
Noble Lords will appreciate that, given the work that has already been done in this area and the absence of compelling new evidence, the Government are reluctant to commit more time and energy revisiting the same question. However, we note the news that the Chief Fire Officers Association has commissioned a further review, funded by industry, to update and expand the available evidence base. In answer to my noble friend Lord Tope, officials from the Department for Communities and Local Government are fully engaged with the project team working on this new review and have offered their assistance in developing as robust an analysis as possible. We await the results of that work with interest.
We will continue to monitor the situation and the effectiveness of the various strands of fire safety policy. I accept that we are likely to return to this issue and we recognise that the issues listed in the noble Lord’s Bill are among those matters that are likely to be addressed. However, I question whether it is either wise or prudent for any Government to commit themselves to a specific timeframe to commence a review, given the inevitable need to respond to changing priorities. I also question whether it is not more appropriate for the fire protection industry and the insurance sector to consider some of these matters for themselves.
The noble Lord, Lord Harrison, mentioned the £7 billion cost of fire. In 2004, the total cost of fire in England and Wales was estimated at £7 billion, but it is important to understand that this figure incorporates all costs associated with fire. The consequences of fire are just one component of that figure; they were estimated at £2.25 billion. The £7.03 billion figure includes the costs of providing fire protection and fire and rescue service interventions. Introducing the requirement for more fire protection in buildings could only increase that overall bill.
In his interesting intervention the noble Lord, Lord Best, properly identified some difficulties involved with installing and, most important, maintaining sprinkler systems. I hope that his organisation will contribute to the study. In response to my noble friend Lord Tope—I think that I have touched on this—Andrew Stunell will make a statement around the end of this year to set out his intentions for the building regulations. It will include plans relating to electrical safety.
In one of the points made by the noble Lord, Lord McKenzie of Luton, he asked about the projects on low-cost sprinklers and on the cost-effectiveness for high-risk premises. I understand that both of those projects were essentially complete when the noble Lord was still in post and that there is now an expectation that further work in that respect is being taken forward by the Chief Fire Officers Association and the fire protection industry.
Many noble Lords touched on the issue of costs. There appears to be some doubt about how much domestic sprinkler systems cost. Estimates vary greatly, from less than £1,000 to well over £3,000. Of course, I accept that costs are likely to fall with volume. However, if we were to build 150,000 homes in a year and assume a typical unit cost of £2,000, that would cost the country £300 million every year. In answer to the noble Lord, Lord Hoyle, on the costs that we consider for human life, we have to look for the most cost-effective technical solution and for where the greatest risk lies, which is not necessarily in new buildings.
The cost of carrying out the work set out in the Bill should not be ignored. I refer to the earlier work that was commissioned by the previous Government to look at sprinkler protection in areas of rapid growth such as the Thames Gateway. I understand that this comparatively simple project cost in the order of £100,000 of taxpayers’ money. In my opinion, to commit many more times this sum to go over old ground so soon would be an irresponsible use of public resources.
The noble Lord, Lord Harrison, mentioned the experience in Vancouver. While experience from other countries is obviously valuable information, we must consider the level of uncertainty of the statistics derived from the comparatively small sample size.
Many noble Lords, including the noble Lord, Lord Harrison, and the noble Baroness, Lady Smith, talked about timber-framed buildings. This is an obvious problem. The new Government are aware of the concerns about this type of building and will tackle them head-on. We intend to work with industry to establish whether there is evidence of specific risks associated with timber-framed buildings and how best to address them. We are also actively awaiting a London Assembly report on this issue, and we will look at its conclusions carefully.
The Government take fire safety issues very seriously. We all understand the injury, the heartache and the damage that fire causes, and we are keen to explore new and innovative ways to reduce the toll. At present, however, we must focus on our priorities. While we agree with the desire to answer the questions set out in the Bill, we must express strong reservations about the provisions in it of a statutory commitment for the Government.
Lord Harrison
My Lords, this has been an excellent and wide-ranging debate, and I am grateful to the noble Lord, Lord Tope, for bringing his experience of local authorities and London to the table. I am pleased to have heard once again the noble Lord, Lord Best, who asked pertinent questions and who was prepared to avail us of the information from the housing association that he is associated with, as well as the consumers who are affected by any changes that might be made.
I am grateful to my noble friend Lord McKenzie of Luton, who brings with him his own expertise, having wrestled with this in the past. Clearly the mantle has been passed well to the noble Baroness, Lady Smith of Basildon, as her contribution shows.
I noted that the noble Lord, Lord Hoyle, went five minutes over time in making his contribution, which would have given Manchester United ample opportunity to score more goals. However, it is relevant to point out that in the past, as many of us will remember, incidents such as the dreadful fire in the Bradford football stadium led to legislation and work with the industry to ensure that spectators were not incinerated in future. That is why it is important that again we wrestle with these issues.
I will not give a deep analysis of the Minister’s reply. I will say, though, that he talked about an absence of new evidence, and we are happy to bring that new evidence forward. I congratulate him on, and I am grateful for, the proper sense of inquiry that he has shown today. He is cautious, but we will attempt to persuade him, to ensure that we can achieve the aims of the Bill and to put a time limit on action, because we think that these things are urgent.