Lord Wallace of Saltaire
Lord Wallace of Saltaire (LD)
My Lords, Amendments 2 and 9, in my name, have a simple aim: to bring into alignment the standards for democratic legitimacy which the Government apply to themselves, and on which their claim to a democratic mandate rests, and those which they wish to apply to the trade unions.
The Government’s electoral majority rests upon the support of 36.8% of those who voted in the general election last May on a 66% turnout, so representing some 24% of the total electorate, at least of those on the register. For neatness and convenience, I have rounded the figures to 35% and 25%, recognising that the Labour Government of 2005-10 were accepted as legitimate on 35% of the vote.
Amendment 8, in the names of the noble Lords, Lord Collins and Lord Mendelsohn, rounds the figure of the turnout down, to 20%, rather than up, to 25%. Here we have far higher standards set out for the legitimation of ballots by trade unions than are set out by the current constitutional arrangements for legitimating government—50% of those voting and an even higher barrier, 40% of those eligible to vote. No British Government have passed this second hurdle in the past half-century. No Government for more than 60 years have represented more than 50% of the electorate, except of course the coalition Government of 2010-15, considered illegitimate throughout their life by a great many on both the Labour and Conservative Benches.
There is a very serious and constitutional point at stake here. The new Government claim they have a strong democratic mandate. The noble Lord, Lord Dobbs, underlined this in the first debate this evening. On that basis, they are now pressing through a substantial legislative programme, including a number of radical free-market proposals which were successfully resisted under the preceding coalition. This Bill is a mixture of free-market and authoritarian principles. Trade unions are an important part of civil society, balancing the power of employers and investors in the market. The battle to establish the rights of trade unions to combine was a significant part of the development of British democracy in the late 19th and early 20th centuries. I am happy to say the Liberal Government then did a great deal to support that.
Trade unions, like employers and investors, need to be regulated but—again like employers and investors—they are legitimate actors in a market that is rooted in an open and democratic society. Authoritarian free markets, of the sort favoured by some right-wing economists and briefly practised in some South American states, require civil society to be suppressed. But none of us, including those 24% of voters who supported the Conservatives in last year’s election, wants to convert the UK into an authoritarian state.
I ask the Government to recognise the limited and conditional character of their mandate to govern. They require the consent and acceptance of the 75% of UK voters who did not give them their support in last May’s election. The Government hope to govern for a full five years. If after two years they find themselves facing the usual mid-term disillusionment, made deeper by a likely economic recession, while they press ahead with an agenda about which significant parts of the electorate are unhappy, then the discontented will take to the streets and smash windows. We already face a public mood of deep disillusionment with conventional politics. The Government should be careful not to deepen that disillusionment further and provoke public anger.
Many of us will remember the confrontation between the Conservative Government and the trade unions in 1973-74, when the then Prime Minister attempted to assert his constitutional authority and union leaders replied that their total membership was larger than the number who had voted Conservative in the previous general election. The unions are much weaker now, of course, but then so is the Conservative Party—down from the 1 million members it had when Edward Heath was leader to, apparently, 150,000 now. It has far more money, of course, but far fewer members. The number of votes it won in last year’s election, as well as the proportion of the votes cast, was also much lower. To quote the noble Lord, Lord King, we are governed by an active minority against an idle majority.
We all recognise that the Government are opposed to constitutional reform, in particular to electoral reform, which could raise the barrier before an incoming Government could claim a mandate to govern. But, by that token, and recognising the weakness of their mandate, the Government should be cautious about imposing new barriers on union decisions. We know that there is public anger out there about our failures as a political class to impose sufficiently strong regulation on the banking industry, and the absence of prosecutions and punishment for those in the banking industry whose actions triggered the crisis of 2008-09. I meet that anger on the doorstep every time I go out canvassing in Yorkshire. To impose a combination of tougher regulations and higher barriers to legitimate action on trade unions, in contrast to the light touch on bankers and others, will only feed that underlying popular hostility and disillusionment.
I move the amendment, and speak to Amendment 9, in this spirit. The Government should recognise their own position, treat trade union ballots by the same standards as parliamentary ballots and recognise that a Government with a limited mandate must compromise with the institutions of civil society. Trade unions are an important element in our civil society. I beg to move.
Lord Dykes (Non-Afl)
My Lords, I will be brief. I congratulate the noble Lord, Lord Wallace of Saltaire, on his speech. I missed only about 20 seconds, when the television screen changed back to the Committee, so I was technically here. I agreed with what he said. I hope that he and others agree that the other disturbing factor in this is the context of a Government supported by a low percentage of voters, and only 24% of the electorate. I do not think that there was a lower figure in recent decades. I may be incorrect, but I am pretty sure that that is right. To invoke the regular incantation that something is a manifesto promise is also flawed if the support from the natural electorate is so puny and minor as to render this an illegitimate exercise for such a controversial piece of legislative text that deliberately makes life more difficult for normative trade union behaviour.
There is an idea that because the manifesto is mentioned in the press in the context of an election campaign, therefore the thinking electorate, or the whole electorate, should be well aware of the proposals in it; but, of course, that is not the reality. Most members of the public, first of all, regard politics as a rather distasteful activity and they leave it at the back of all the important activities they have with their families, their holidays, their education and their children, and they go to politics when they have to, when elections come. Therefore they would not be very conversant with the contents of manifestos anyway. So the manifesto-itis element of these very badly drafted Bills that are coming through—skeleton Bills, often, with too many SIs following them and the rest of the problems—also affects this piece of legislation.
I remember when I was the incumbent Conservative MP—proud to be the most left-wing one, of course—for Harrow, the total number of people who came into our campaign office during the election campaign to ask for a copy of the manifesto ranged, over the seven elections I fought, from 10 to six, with an average of about eight. People just did not pay any attention to the details of manifestos. Any newly elected Government, in this case with a 12-seat majority on the basis of 30%-plus support, are entitled to say, “Well, they should have, shouldn’t they?”, but it is not like that.
Therefore, we must produce intelligent legislation which is balanced and fair and consensually based—particularly, as in this case, with the sensitive subject of the trade unions, which have had a very difficult 15 years as a result of the way politics has moved—and we should be very concerned to make sure legislation does the right thing. Therefore, I hope the Government can respond to these realities by responding to intelligent amendments such as that just proposed by the noble Lord, Lord Wallace of Saltaire.
Lord King of Bridgwater (Con)
My Lords, I have great respect for the noble Lord, Lord Wallace, which is always a warning, in this House, that worse is to come. I simply say that I could not believe the speech he made. I would like to think and hope that he got somebody to write it for him, because I thought that the intellectual content was as close to zero as one could get. Of course, I understand, sitting on the Bench he is sitting on, his acute dislike of our present parliamentary system and first past the post, but, of course, that is the situation in which we live.
That is the situation in which noble Lords on the Opposition Benches have stood for office, have won office and have run this country. At times, members of the noble Lord’s party did the same; they formed a coalition because they had enough seats to count under the first past the post system. This, on the other hand, is as if we were to say that no Government were to do anything the least bit controversial because they did not have an overall majority all the time. I am trying to think how many times when I stood for election I ever got 50% of the vote. I think I did on one or two occasions. Against that background, it is as if we were to say to the people who if there is another tube strike will be walking 10 miles to the office, to the people who never make their operation because they cannot get there in time, to the people who never see their loved one who they hear is in a serious situation in hospital but who cannot get there in time, “Sorry, we really cannot do anything which might give more confidence to the Government and to Parliament and recognise your concerns.”
Someone who was an observer from outer space, or in the Gallery here, and who heard the deeply moving speech by the noble Lord, Lord Wallace, brilliantly delivered, as it always is, might ask, “What is he actually talking about?”. Oh, it was just to say that if you are going to have an important vote to bring people out on strike, it is unreasonable to say that at least one in two of the union members should actually vote. Some noble Lords may not have had a chance to look at this amendment. This amendment says that it is outrageous to say that one in two of the union members have to turn up for the vote, irrespective of what they decide to do. The amendment of the noble Lord, Lord Wallace, says that it should go down from 50% to 35%, so that it is one in three.
Lord McAvoy (Lab)
Can the noble Lord give us the percentage of the people in the United Kingdom who voted Tory at the election?
Lord King of Bridgwater
That is the great fallacy. I have heard the argument about 50%, but that is the point I am addressing: how many people got elected with 50%? The question of a strike is a binary choice. It is not the same as having five or six candidates standing in a by-election or an election. I do not know how many noble Lords have actually stood as candidates for election but a number who are in this Chamber at present have. They will know that if you have a number of candidates, the chances of getting 50% of the vote are unlikely. Are we saying that is a good background against which you would have to go around and say, “Just a minute: we have cleverly worked out that 24% voted for us. Can we find another 3% from some other party and other 10% from somewhere, and then—my goodness—we could make some policy”? That is not the way this country has worked. The answer is that the system we have of first past the post is the basis on which government works.
Lord King of Bridgwater
Perhaps I could just finish the sentence. Are they saying, “We will ignore the interests of all the millions of people who may be badly affected”? The issue about the public sector is the amount of people in monopoly situations. That is why they are in a special position. We will come on to which industries and activities should be covered. This is a very important issue, and I agree that not everything should be covered. But in those areas where the nation and its citizens are most affected—the public sector—we have a duty as a Parliament to protect them.
Lord Mendelsohn
Does the noble Lord therefore favour the 50% threshold applying only to the public sector and not to the private sector as well, as it currently does in the legislation? Is he also suggesting that if the Government came forward with a ballot paper that consisted of not just a binary decision but a range of possibilities, whoever got the largest amount, he would accept that that was the judgment of the members of the trade union, so balloted?
Lord King of Bridgwater
The answer to the first question is no. The second I will need to think about, as it is far too complicated for me.
Lord Oates (LD)
My Lords, I speak in support of my noble friend Lord Wallace of Saltaire. I must say that I followed his argument completely but I am not sure that I followed that of the noble Lord, Lord King of Bridgwater, at all. The noble Lord seemed to make the case that because strikes can be disruptive—we must acknowledge that they can be, particularly in the public sector areas of transport and education, as the Government have argued—and because of the impact on people, that justified the Government’s proposed thresholds. But is the idea that the Government do not impact on people? The Government impact on the lives of millions of people in many areas, not just during the period when a strike may take place. Not long ago, we were discussing the changes to universal credit in the Welfare Reform and Work Bill, which will have a massive impact on some of the most vulnerable people in this country. That is on a mandate of, what, 24%? What we are asking for is a bit of consistency from the Government. Why do they believe that trade unions should be held to a completely different democratic standard than the rest of our democracy operates to?
We should consider carefully this idea of introducing thresholds. It is a major step in the way our democracy operates. In the first place, it second-guesses what the people who do not vote actually mean. It may be that the people who do not vote actually mean they do not want to vote; it does not mean that they wish to vote no. However, under this system, we have the perverse incentive whereby if you wish to oppose strike action you may well be better off not participating in a vote. If you do participate, you may help people over the threshold. As a noble Lord said previously, somebody voting against a strike who tips the vote over the threshold is actually facilitating it taking place. That makes no sense whatever. In a situation where there was a 50% turnout—which would meet the first threshold under the 40% requirement—even if 79% of those voting in that ballot voted in favour, the strike would be illegal. That would have a massive impact on industrial relations.
Thresholds like this are almost without precedent in this country. The only example I came across was the rather ill-fated 1979 Scottish devolution referendum, in which there was a 40% threshold. That was universally regarded as a not entirely successful way to go about things and has never been repeated. It was certainly not something the Government were keen to take on for the European Union referendum. As I have said before, strikes are undoubtedly disruptive, particularly in the public sector, and they should be a last resort. If we vote to leave the European Union, it could massively disrupt all of our lives for ever, but nobody is suggesting a 40% threshold there—for the good reason that inventing thresholds like this simply undermines people’s faith in the system and can create extremely perverse outcomes.
Will the Minister tell the Committee why the Government believe it appropriate to impose such thresholds for a strike, which could cause disruption, but not appropriate in cases such as membership of the European Union? Why should this sort of threshold not be met when the Government are acting as a monopoly supplier of service? For instance, on the benefits system, with what mandate is a party with 24% of the vote savagely attacking the rights of vulnerable working people? There is very little consistency in what the Government are suggesting and I hope they will reconsider it.
Lord Monks (Lab)
My Lords, the point I took from the speech made by the noble Lord, Lord Wallace, was less on the arithmetic and how it all added up and more on a warning to the Government not to overreach; not to be too arrogant. In a number of areas there is now a suspicion—I do not think that it is just on this side of the House—that the Government are being too arrogant with their opponents. Whether it is on Short money, voter registration or whatever, there is a sense that they are overreaching. It is not necessarily a matter for the Minister tonight, but I hope that the Government will bear that in mind when they look at their agenda for the Bill as we go into it more. A little bit of humility would come in very handy when they are working out their next moves in a number of areas.
The noble Lord, Lord King, should not always assume that strikes are unpopular. A neighbour of mine, in King’s College Hospital with a heart attack, was astonished when the junior hospital doctors got a round of applause from patients and staff when they walked in after their day off.
We talk a lot about history. In 1974 it was not the trade union members aggregated who made the difference; Edward Heath lost the election on the question, “Who governs the country?” So, funnily enough, strikes can catch a wind at certain times and if the Government really have their ear to the ground they will try to pick them out from the ones that are perhaps less popular. So do not always assume that strikes are turning off the population. Sometimes, they are not.
Lord King of Bridgwater
Perhaps the doctors got a round of applause because the patients were so pleased to see that they had come back.
Lord Balfe (Con)
It is good occasionally to get up on this side of the House and remember why I am on the Conservative Benches and not on the opposition Benches. This is a clear manifesto commitment. You can throw statistics around for how many people voted for the Government and how many people did this or that. They are different systems. It is clearly written in the manifesto that:
“Industrial action in these essential services would require the support of at least 40 per cent of all those entitled to take part in strike ballots - as well as a majority of those who actually turn out to vote.”
I am impressed with the arithmetic of the noble Lord, Lord Dykes. I am a little puzzled if the number of people coming into his office for a manifesto varied between eight and 10, giving an average of six—he obviously went to a different school to where I learnt my averages. These are different elections. I have no objection to proportional representation. I was a member of the Labour campaign for electoral reform for the better part of 20 years. I voted for the alternative vote system in the referendum because I believe that democracy is strengthened if it is more firmly based than it is at the moment. I am always impressed by the fact that, whenever the Labour Party is in opposition and look as if it is not going to win, it sets up commissions under the noble Lord, Lord Plant, or Robin Cook to look at electoral reform. Then somehow when it gets into government electoral reform gets lost.
This is a separate issue. What majority the Government have is irrelevant to the fact that the Government have a mandate under our constitutional system and a clear entitlement by virtue of the manifesto to introduce this legislation.
Lord Dykes
Does the noble Lord agree that the aspiration for sensible governance of any country is for the number of seats in Parliament to equate proportionally to the percentage of votes from the electorate? The closer we get to that, the more we get a natural balance of the genuine result. The only such systems in Europe, of which the noble Lord has great knowledge, are the Irish with the single transferable vote system and Germany with the additional member system. Why does he not support that?
Lord Balfe
I think we are straying a little, but I am happy to talk to the noble Lord afterwards about different electoral systems.
Many strikes are unpopular, and sometimes the trade union movement does itself no good. I would imagine that everyone on the opposition Benches is uncomfortable at RMT chief Steve Hedley’s comment:
“I think all the Tories are an absolute disgrace, they should be taken out and shot to be quite frank with you.”
Obviously, no one is going to support statements like that, but they are made and reported with pictures of a union leader with a Kalashnikov in the Evening Standard, and this impacts on people.
I quoted earlier what I call the moderate unions—the 16 unions that issued the brief on the Bill. It does not mention strike ballots once. Over four pages it brings out a good number of other points, including on electronic balloting, check-off, agency workers and the Certification Officer. There is not a single word on ballot thresholds. I suggest that the Government have a clear mandate for this. According to the Mayor of London’s brief, which may or may not be accurate, over half the strikes called by RMT would not be possible under this law. That could well be the makings of a rather popular law.
I counsel noble Lords opposite—including the noble Lord, Lord Wallace—to have a look at the sayings of Mr Mark Serwotka, the head of the Public and Commercial Services Union, who said that this Bill provides an organisational challenge. I draw his attention, too, to the words of a trade union general secretary, who is a friend of mine, who said to me, “Richard, I would never take them out on strike if I only had half the people behind me”. If you are going to have a strike, you need to have a good, solid basis of representation and a good, solid majority behind you. I think that the Government in this instance have a very clear mandate for this change, and I doubt that Labour will repeal it when the party—as it inevitably will—comes into office.
Lord Sawyer (Lab)
As a Member who has led many strikes, I have some experience of what it takes to make one successful. Indeed, to persuade any group of trade union members to take strike action, a trade union leader has to have an outstandingly good case. Throughout my career, and many years as a trade union leader, there were no restrictions or numbers on ballots, but I always had to be clear that, although I might go to a work situation where a small number of members were expressing a point of view, which today might be taken as a ballot, the vast majority of trade union members were behind what the union wanted to do. Trade unions cannot call industrial action without the support of their members. We never needed ballots to tell us that we had support in the past, and we do not need them to tell us now. I understand that times have moved on, and political parties and the wider electorate want some measure about the level of support, but I would not like anybody to be under the impression that trade union leaders can just call members out on strike willy-nilly. That is not the case; it needs a lot of thought and consideration and wide support.
Although this debate is only in its early stages, I am already starting to feel anxious that it is not a Trade Union Bill debate but a kind of RMT debate. It focuses on the actions of one particular union. I remember the late, great Mr Bob Crow was often vilified in the press for being an unpopular trade union leader, but that was not the case after he died, when the management of the business came out in numbers to say what a great trade union leader he had been.
Lord Balfe
Can I point out to the noble Lord that people always say nice things about you when you are dead? If they start saying them about you while you are still alive, that is the time to get really worried.
Lord Sawyer
That is not a matter that can be proved. Clearly, those of us who know about employer relations in the industry knew that Bob Crow was a widely respected, sensible and realistic trade union negotiator. The problem was that he was very tough—he drove a tough bargain on behalf of his members. Let us not forget, when we debate manifesto commitments and ballot thresholds, that the balance of power at the workplace, setting aside London and the RMT, is massively loaded in favour of the employer. Trade unions throughout their history have needed to work very hard and make big sacrifices to prosecute their case and get any benefits from taking industrial action. That is the kind of point that the noble Lord, Lord Monks, made—it is about getting some kind of balance. I understand the manifesto commitment and I understand where the Government are coming from, but it is balance that we are looking for in this debate. It is a question of what seems to be fair and reasonable, and the two clauses, both the 50% and 40%, seem a bridge too far.
Baroness Burt of Solihull (LD)
My Lords, I shall not detain the Committee for too long, but I want to talk about Clause 3 standing part of the Bill. It illustrates the problem of combining a 50% turnout requirement with a 40% of eligible votes being in favour. Can the Minister confirm whether the figure of 40% was in the Conservative manifesto?
We have had all kinds of figures bandied around; we have had 35%, 20% and 25% as suggested rates, but none of these works. We have had the noble and learned Lord, Lord Brown, talking about 499 out of a workforce of 1,000 voting for action but unable to make it legitimate because one person did not vote in favour. And if you had just a 50% turnout, 80% would have to vote in favour for industrial action. It is important to have strong support for action if you are going to inconvenience the public, but I do not believe that this is the way, so my party does not believe that Clause 3 should stand part of the Bill.
Lord Collins of Highbury (Lab)
My Lords, the fact that there is a manifesto commitment to both 50% and 40% does not release the Government from the responsibility to explain why and to explain the consequences of their action. The manifesto also says:
“We will protect you from disruptive … action”.
If the strikes do pass the test and there is disruptive action, what are the Government going to propose next? A lot of people in this Chamber believe that this is the first step and not the only step; there may be more to come in order to stop disruptive action.
The purpose of our amendments in this group is to highlight and probe the arbitrary nature of the proposed statutory thresholds for industrial action ballots. The potential impact of these will be to make it very difficult for working people to organise collectively in defence of their jobs, livelihoods and working conditions. As my noble friend Lord Sawyer says, the balance is not overwhelmingly weighted in favour of the workers in most parts of the country in most industries. Unions will find it increasingly difficult to organise lawful industrial action, especially in larger workplaces and those with more dispersed workforces.
The recently published impact assessment estimates that the 50% threshold will reduce the number of work stoppages due to industrial action by 37% each year. The Government have also published initial estimates suggesting that the 40% threshold in important public services—we will obviously come on to the debate in the next group about what those important public services are—would lead to an additional eight percentage points reduction in working days lost to industrial action.
It is also unclear why the Government have determined 40% as a threshold. I know it is in the manifesto; I am not querying that. But nowhere in the impact assessment do the Government look at other percentages as a possibility. They have instead stuck to this figure of 40% as the magic number that will mean that industrial powers are sufficiently curbed, meeting their manifesto commitment to,
“protect you from disruptive … action”.
Can the Minister explain and give us the rational argument as to why the figure is 40%?
I want to spend a bit of time tonight talking about what, in the main, unionised workplaces are like. Unionised workplaces tend to be safer. They are more likely to have enhanced family-friendly policies and to invest in skills and training than non-unionised workplaces. And as the Minister knows extremely well, there are unionised places that are well positioned to innovate and respond to changing economic conditions—she has been part of one of the most successful partnership agreements in the country. They work and they deliver because they are focused on ensuring the success of the enterprise, as the noble Lord, Lord King, said. That is what good unions do.
These thresholds will not assist in that process. Modern trade union workplaces do not occur by magic. Ensuring an equal bargaining power between unions and employers is not easily achieved. The ability of unions to organise lawful industrial action provides essential support for effective negotiations. They are part of a rational process to ensure that both sides understand the consequences of their action. People do not go to strike to destroy the enterprise; it is often to protect it, their jobs and their futures.
The majority of ballots do not lead to action. Balloting members ensures that employers take the views of the workplace seriously and engage in genuine negotiations. It is part of the process of reaching agreement. That is what union organisation is about. This week is heartunions week, celebrating the valuable work unions do to improve pay and working conditions. It is in the interests of employers and employees for disputes to be resolved quickly and amicably.
I fear the Government’s proposals mean that disputes are more likely to become protracted. Unions will take more time in the run-up to ballots to ensure the necessary turnout, diverting time and effort away from finding an amicable settlement. Employers may decide to wait and see whether a union can make the strike threshold before making a revised offer. These thresholds are not working towards decent industrial relations. They also increase the potential for legal challenges, which will escalate tensions between employers and the workforce, again making it difficult to resolve a dispute amicably.
The Government’s case is that the 50% turnout threshold, along with the 40% threshold in important public services, are needed to protect the public from disruption. The noble Lord, Lord King, made that case. In order to be effective, industrial action must cause disruption. However, from the current evidence, it is clear that unions are treating industrial action as a matter of last resort.
The evidence is clear: the statistics published by the ONS confirm that the number of days lost to industrial action per year has fallen dramatically. Since 2010, on average 640,000 days have been lost to industrial action each year compared with 7,213,000 days lost per year in the 1980s. In 2014, there were only 155 stoppages as a result of industrial action, with 55% of the stoppages—85 of them—taking place in the private sector and 45% in the public sector. We hear talk of this being a problem for the public sector; the evidence does not back that up. In an economy with more than 30 million people in employment, that is an extremely low level of industrial action. Most industrial action is short lived. In 2014, 64% of all stoppages lasted only one or two days.
Why do people strike? In 2014, 89% of working days lost were due to disputes about pay and pensions. As I said, in the vast majority of cases where unions ballot for industrial action, disputes are settled without the need for strike. In 2014, there were 550 ballots supporting strike action but only 151 stoppages. I fear that this threshold and this intention to curb industrial action are going to exacerbate the situation and will lead to longer negotiations without the push towards a settlement.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills and Department for Culture, Media and Sport (Baroness Neville-Rolfe) (Con)
My Lords, the ability of union members to strike is an important part of our industrial relations system. As the noble Baroness, Lady Burt of Solihull, rightly reminded us, today we are also debating the clause stand part. Let me start by explaining that the objective of Clause 3 is to require strike action in important public services, if it has to take place, to secure a stronger democratic mandate. We must consider the interests of the wider public, as well as those of non-striking workers and employers, alongside the rights of union members. It is a sensible and proportionate reform and, as has been said, the thresholds we are talking about are in our manifesto. The impact of strike action is most severe when it takes place in the important public services that people and businesses rely upon every day, particularly services that are effectively monopolies, leaving people with no alternatives if strikes take place. This is particularly unfair when strike action goes ahead without strong support by a unionised workforce. This is a very different situation from my own positive experience—
Lord Collins of Highbury
The Minister used the term “monopolies”. Is that true of London bus drivers? Do they have a monopoly? There are alternatives in London. There are also alternatives between buses in London; there is not necessarily just one route. So why London bus drivers?
Baroness Neville-Rolfe
I think I used the phrase “effectively monopolies”. The point is that the degree of choice is very limited. Since the noble Lord has mentioned London buses, at the beginning of 2015 London bus drivers commanded the support of just 21% of members but Transport for London reported that 7.5 million journeys were affected by the strikes. People needed to make alternative arrangements for travel to work or to important appointments on those days. To return to another point, I am sure that the drivers did not get a round of applause from the frustrated passengers on those occasions either. I agree that the situation might be different outside London, where the bus routes are more disaggregated.
It cannot be right that strike action that causes such widespread disruption can take place on the basis of the support of a small proportion of union members. I know myself just how difficult it can be to make arrangements when tube staff and school teachers go on strike. That is why we have introduced an additional threshold to apply to important public services. I just do not accept the argument—
Lord Mendelsohn
There is a difference between “any” disruption and the situation the Minister talked about earlier, where there is a monopoly, so there is complete disruption. Is she making the case for “any” disruption? Is this lowering the threshold?
Baroness Neville-Rolfe
I do not entirely understand the question. I think the thresholds are clear. We are proposing the thresholds and debating them.
Lord Mendelsohn
I am happy to clarify. The Minister made the point that where a particular service is a monopoly—that is, where the impact of having a monopoly means the withdrawal of such a service—you are forced into not having a reasonable range of alternatives. “Any” disruption is where there are alternatives, so you can choose other things, but you will be disrupted. She has made the argument for any disruption being a reason to have these thresholds, rather than her original test, which was about monopolies. That distinction between those two levels of disruption is quite significant. Is her case about absolute disruption, where your options are narrowly limited and likely to be restricted, or is it about any disruption?
Baroness Neville-Rolfe
I still do not really understand the point. I shall come on to give some examples that may be helpful in explaining the thinking. This part of the Bill is quite straightforward because, as several people have told us, it implements a particular wording in the manifesto. I am trying to explain the background to that.
I cannot accept the argument of the noble Lord, Lord Wallace of Saltaire, although it is very good to have him involved in this debate since we worked together in the coalition. There is no parallel between our recent parliamentary elections or the matters mentioned by the noble Lord, Lord Oates, such as the EU referendum, and the proposed thresholds. In addition to the excellent points made by my noble friends Lord King and Lord Balfe, it is just not a fair comparison. It is right that strong support be required for strike action ballots, because strikes can affect large numbers of the public who do not get a say in the ballot and are dissociated from the relevant trade dispute. In contrast, the public are able to participate in elections and have a democratic say in the outcome. As my noble friend Lord King said, they do not face a binary choice and are choosing between a range of candidates. It follows that the successful candidate may have a smaller share of the overall vote.
I also realise that noble Lords are concerned that the treatment of abstentions, which I think is what the noble Lord, Lord Oates, was getting at, would make the thresholds harder to meet. Our objective is to ensure that strikes can only ever be the result of a clear, positive decision by union members, because the action can go on to cause widespread disruption for the public. Union members are free to abstain from voting, but this is not a positive vote. It is only fair that it does not count towards the threshold.
Recent events show that the threshold can be achieved when union members feel strongly about the issues that are relevant. For example, last year, RMT members were balloted on the night tube, resulting in a turnout of 53% and support of 48%. That means that 91% of voting members supported industrial action, surpassing the thresholds and putting beyond doubt the legitimacy of the ballot mandate.
Lord Oates
Can the Minister address a bit further the issue of the perverse impacts of an abstention being stronger than a no vote? In 2014, I think, the Royal College of Midwives balloted for action for the first time in its history. I believe that 82% voted in favour of action and 8% against. However, the turnout was only 49%. Under this Bill, any industrial action taken by the RCM would therefore be illegal. Conversely, if thousands of people had voted against the strike, it would have been legal because they would have met the turnout threshold. That does not make any sense at all. Can the Minister please address that perverse and absurd impact?
Baroness Neville-Rolfe
The noble Lord has answered his own question. Our reforms ensure that strike action does not take place on low or unrepresentative turnouts. That is why we have two different thresholds.
Lord Oates
Does the Minister seriously think that it would be a sensible situation for the Government to get into if, on a ballot of 82% of people voting in favour, that industrial action became unlawful? Does she think that would be good for industrial relations in this country? Would it help overall relations in this country?
Baroness Neville-Rolfe
My Lords, it is always possible to talk about individual examples. In a minute, I will explain some other examples in relation to the amendments that have been tabled. Asking that 50% of eligible members take part in a ballot regarding action which is going to be hugely disruptive to people in all walks of life seems to me to be fair and democratic.
The threshold does not ban strike action. I think that that is accepted. It may stop some strikes—I think I have to accept that—but only those which have not been able to secure a sufficiently strong mandate. It is about restoring a level of democratic accountability to industrial action and it will rebalance the interests of all working people, both union members exercising their right to strike and non-striking members who want to go to work and carry on their normal lives.
We have before us a number of amendments to lower the 40% threshold, and to reduce the requirement for a simple majority of yes votes. Reducing the thresholds would fail to achieve our objective. It would mean that the thresholds have no practical effect, and would not ensure that strike action could only go ahead as the result of a clear, positive decision by union members.
Let me illustrate the point. If the alternative threshold of 25% proposed in Amendment 9 were applied, then only 250 in a ballot of 1,000 need to vote yes in ballots for important public services. This adds nothing to Clause 2, which requires a minimum turnout of 50%, and a simple majority of those who vote to support strike action.
Lowering the threshold even further to 20%, as suggested by Amendment 8, would again make the important public services threshold meaningless. Finally, Amendment 2 would replace the requirement to achieve a simple majority in all ballots with a requirement that only 35% of those voting need to support strike action. If this applies to a ballot of 1,000 where 600 have cast a vote, then only 210 union members would need to vote yes.
I do not believe that members of the public would feel that this restores a level of democratic legitimacy to industrial action ballots. They would gain no comfort in knowing that they cannot get to work or get their children to school because less than a quarter of union members have supported this outcome.
Lord Wallace of Saltaire
My Lords, this has been a very disappointing debate. First, I am struck that all references to strikes have been about London strikes. For the vast majority who live in the rest of the country, life looks a little different. I am very sorry if the people of London are disrupted by Tube strikes, but that does not apply necessarily to the entire country. Secondly, when I go to Yorkshire I come across a profound disillusion with conventional politics among the different sorts of people whom I meet. Incidentally, that disillusion is deepened by the fiasco of the northern powerhouse, which even the Yorkshire Post occasionally now refers to as the “northern poorhouse”. What is now happening with museums rubs in the sense that the Government care about London and the south and not the north. The other day someone remarked to me that as we have a Government with six senior Cabinet Ministers representing Surrey constituencies and none representing any constituencies in Lancashire, Yorkshire, Durham, Northumberland or Cumbria, it is not surprising that they neglect the north altogether.
The noble Lord, Lord King, talked about disruption. Strikes disrupt people’s lives for a few days. What I hear from people in Bradford is that bankers have disrupted the economy for several years and we have all paid for it, yet the Government have no proposals to strengthen controls on the banking industry. Indeed, from what I understand from the Financial Times, they have just refused to renew the post of the current head of the Financial Conduct Authority because he was felt to be a little too tough on the banking industry.
Lord Wallace of Saltaire
I will listen to the noble Lord in a minute. My message is simply this. This is intended to make life more difficult for unions. It will be read by the large majority of the public who either did not vote or did not vote for the Conservatives as yet again tipping the balance in favour of the well-to-do, the comfortable and the south-east against the majority of people in this country.
I say to the noble Lord, Lord King, and others that I hope that in two years’ time we shall not meet with politics which goes outside Westminster and on to the streets, but I fear that if a Government wish to push through a radical, free-market, right-wing agenda with some clear underlying prejudices against the public sector, for which a great many people—more in the north than in the south—work, we will run into very serious trouble.
Lord King of Bridgwater
I did not realise that these were alternatives. When the noble Lord asks what we should do about bankers and some of their activities, it is to suggest that either something is done about the unions or something is done about the bankers. I have some sympathy with his point about the bankers, but I do not regard that as an alternative approach to doing something about the unions.
Let me say this also: there is dissatisfaction with politics. There has been a lot of talk about manifestos. Is not the reality of our democracy that members of parties have a manifesto on which they stand, and they then enact it and act as they feel will carry the maximum public support to give them the best chance of being elected again? I think I am right—the Minister may be able to confirm it—that a wide poll was taken about the proposals on thresholds for unions. I understand that there is wide public support for that proposal. That is sensible governance, and I hope that the noble Lord will agree.
Lord Wallace of Saltaire
My Lords, I have not seen the poll so I shall go and discover what the situation is. We have given this a fair wind and I think it is time that I withdraw my amendment. However, I wish to mark that this raises some very large problems about government to do with fairness, how government tries to represent all the citizens of this country, as it does, and the balance of legislation. I think that the Government would be extremely unwise not to bear that in mind in the happy first six months after their victory.
Lord Balfe
The noble Lord is a very good example of a sinner who repents. I have happy memories of him standing at the Dispatch Box defending our Government for many years.
Lord Collins of Highbury
Lord Collins of Highbury
My Lords, this debate is on what certain “important public services” mean in terms of not just the 50% turnout but the 40% of those entitled to vote. Important public services are defined as the fire service, transport services, education for children under the age of 17, border security, and the decommissioning and management of radioactive waste. The Bill does not specify within these services who will be covered by the 40% threshold. But as the Minister has just said in response to the other grouping, the Government recently responded to their consultation on balloting thresholds and important public services.
In that response, and the accompanying skeleton regulations, more details are provided on the types of jobs and functions that the Government propose should be covered by this 40% threshold. In the fire service it includes firefighters, firefighter mangers, control centre staff and managers who co-ordinate the response; and in health it includes doctors, nurses and staff employed in ambulance services, A&E, intensive care and high-dependency units. The threshold will also apply to publicly funded services provided by private hospitals. In education it includes teachers in publicly funded schools that teach pupils between the ages of five and 16, and head teachers and academy principals in state-funded education teaching children between the ages of five and 16. In transport it includes, as I mentioned before, staff employed in bus services in London, including drivers and emergency and control staff, and staff employed in passenger rail services, the metro, the Underground and trams, including train drivers, conductors and guards, safety staff, maintenance staff, and signal and engineering staff. In civil air transport it includes those who work in civil air traffic control, including licensed civil air traffic controllers, airport security, port security and border security, including staff employed to implement entry and exit checks. The Government have said that they are still reviewing which functions within the nuclear decommissioning sector should be covered by the 40% threshold. It is unclear when this decision will be made and I hope that the Minister can inform the House exactly when that will be.
I am, of course, pleased that the Minister has put her name to Amendment 6, which removes from the scope of the 40% threshold individuals employed in ancillary activities that support important public services. This means that hundreds of thousands of private sector service workers will no longer be covered by the threshold. Of course we welcome that. However, it does not address the imprecise nature of the proposals. Before they go to a ballot, unions will not know whether the 40% threshold will apply. That will create uncertainty in industrial relations.
Amendment 3 is a probing amendment, intended to seek clarity from the Government about the broad category of “important public services”. We suggest inserting “solely” into new subsection (2B), so that the 40% threshold would apply only to those who are,
“normally engaged solely in … the provision of important public services, or”,
ancillary services. As the provision stands, it is unclear whether individuals who spend only part of their time providing so-called “important public services” are covered by the 40% vote requirement.
Take education, for example. Education unions planning to ballot staff in a school with a sixth form will find it difficult to assess whether staff who teach both pupils under 17 and those in years 12 and 13 are normally engaged in providing important public services. This will be particularly problematic where teachers’ work schedules vary during the academic year. They might do one thing in one term and something else in another. How will unions be able to work out how the 40% will apply? Similarly, it is not clear whether the 40% threshold will apply to a ballot involving lecturers in further education colleges who teach classes in which some of the pupils may be 16.
The skeleton regulations say that the threshold will apply to,
“care services provided by a hospital for illnesses, conditions or injuries which require immediate attention in order to prevent serious injury, serious illness or loss of life”.
It is far from clear whether this will cover¸ for example, medical staff working in orthopaedic wards, radiographers, anaesthetists or surgeons. It is clear that the Government have not thought this measure through closely. It demonstrates a poor understanding not just of the way trade unions operate but of public sector working patterns.
The proposals are inconsistent and incoherent, and vary considerably across sectors. For example, virtually all staff working in the transport sector will be covered by the 40% threshold, whereas in other sectors its scope will be far narrower. I find it difficult to see how the Government can justify restricting the right to strike for staff working in ticket offices at railway stations and on the Underground, for example, when TfL has just decided to close ticket offices because they are not considered to be essential services. That creates incoherent policy application.
The threshold will apply to bus drivers—but only in London. On the previous group of amendments the Minister suggested that that was because, outside London—well, actually I did not quite get her argument. Were there more buses there? From what I hear on the radio, rural areas will be depleted of any bus service. The “strike” affecting bus services in rural areas is being conducted not by the workers, who would love to keep their jobs in those services, but as a consequence of government cuts, which will deny communities the right to a bus service. An essential bus service is being denied by the actions of this Government, elected on 36% of the poll. It is that incoherent, inconsistent policy objective that we object to most.
Lord Stoneham of Droxford (LD)
My Lords, it is a very serious issue when you diminish somebody’s right to withdraw their labour. Therefore, it must be very exceptional. Normally it would be good industrial-relations practice, when you are doing this, to offer those employees some protection in return. There is nothing on the agenda today that suggests that, or even that the Government are thinking about it.
There are a number of unintended consequences to all these measures as well. I shall mention two. I always think of the syndrome of the winding-engine men in the coal industry—a key group who used to control who went down and came up in the mine. If you start having thresholds, you will encourage small, strategic groups who will organise to go on strike and can cause massive disruption. I always think that the winding-engine men could be the signal. It could be other groups. That is an unintended consequence.
There is another consequence of this sort of thing, which I thought about in the last debate. Do you remember what the New York governor said about politicians?
“You campaign in poetry. You govern in prose”.
This is what we are doing with industrial relations. We are actually encouraging trade unionists to spend all their time getting the votes over the thresholds so that they can put pressure on their employers. It underestimates the difficulty and the time that trade unionists actually give to trying to minimise disruption. That is what trade union leaders do—they know these disputes are unpopular. That is why there is a trend for one-day disputes rather than longer ones. They are trying to manage this in very difficult circumstances. If you encourage them to have to spend their time campaigning to get the votes over the threshold, they will not be able to control those emotions or get the people back to work.
This is precisely what has happened in the junior hospital doctors dispute. How do you get people back when 76% of them have voted, and 99% are in favour? I said this several weeks ago, and we are no nearer a settlement. This is the sort of unintended consequence that we have.
That is why in Amendment 18 we are saying that the Ministers’ powers must be very restricted here. They cannot just come along as soon as there is a dispute in some area and add that to a list. This will form the worst sort of legislation, and it will have the worst consequences. I do not know where the noble Lord, Lord Leigh, is tonight, but I thought we were going to have amendments in the next group telling us how we are going to widen these groups, so virtually any group in the public sector can be included. I imagine he has been told to go home, unless he is going to come back from the dead and propose these motions tonight. That is precisely the sort of thing we are worried about in this legislation.
This is just the first step. This is the agenda. This is the agenda of this Government: a partisan agenda which will be disruptive of industrial relations in this country and will have completely the opposite consequences to those they are trying to reassure the public they are going to provide for them.
Lord Balfe
My Lords, I will ask the Minister a question. I believe we are going to have tremendous difficulties defining,
“education of those aged under 17”.
Not only do you have differences in who the teachers are teaching, but also head teachers can preside over schools of different age spans. Will the Minister give some careful thought, between now and our next looking at the Bill, to how the clause can be better defined? I do not think that it works as it is.
Baroness Neville-Rolfe
My Lords, as I have already explained, strike action in services that people rely on every day can trigger a significant amount of disruption. It is particularly unfair when strike action goes ahead without strong support from union members. For example, in 2011 NHS workers were balloted by UNISON for strike action—the noble Lord, Lord Wallace, is not in his place, but this was not a London-focused matter—and, according to reports, only 11% of 250,000 members supported strike action. This is disproportionate to the 1 million patients that the wonderful NHS assists in England every 24 hours, who would have been affected by the action taken.
That is why we introduced a further threshold in Clause 3 to apply to important public services in, as I have said, the fire, health, education, transport, border security and nuclear decommissioning sectors. The Bill limits the threshold in this way because we recognise the particularly serious impact that strike action can have in these areas. The objective of the threshold is not to ban strikes altogether, but to ensure that strike action in important public services can take place only if it obtains a strong democratic mandate.
On Amendment 3 and the questions from the noble Lord, Lord Collins, the Bill has been drafted to take account of the fact that most workers will have a range of roles and responsibilities, which may vary across the year or sometimes even in a single day. For example, London Underground control room staff may spend only part of their time monitoring the network and co-ordinating the response to critical incidents, and the remainder on other responsibilities. They may not engage solely in “important public services”. However, their absence in the event of strike action could severely disrupt the service, as they are critical to ensuring that it runs safely and securely. The existence of the threshold would be ineffective if they were excluded on the basis that they do not spend 100% of their time in the control room, as there are few roles in the modern workplace that engage in only a single activity. To my mind, that would make no sense.
On Amendments 5, 10, 12 and 13, we have used the term “important public services” to describe the services that will be subject to the 40% threshold. The term is intended to capture those services where strike action could have the most significant impact on the wider public. That is why the Bill limits the application of the threshold to six sectors. We consulted over the summer, as was said. In the analysis of the 200 responses, we reviewed the available evidence on the impact of strike action across different public services. We listened to people’s concerns. We were troubled by concerns that the threshold could be applied broadly, despite the Government’s clear intention that it should be limited to those services where the impact of strike action is most significant on the public. We listened and responded. We set out our findings in the skeleton regulations, which were referred to. I shall explain this with one or two examples.
The pressing social need that we are addressing in the health sector is the risk to life, or of injury to the public, in the event of industrial action. We have therefore focused the threshold on only publicly funded emergency, urgent and critical care. This is where reduced service levels can have the most immediate impact on the lives and safety of patients and the public. The noble Lord, Lord Collins, asked about orthopaedics and midwives. If they are normally engaged in the provision of emergency, urgent or critical healthcare services—which sounds like midwives in hospitals—then they will be included in the threshold.
In the fire sector, our aim was, again, to protect the public against the risk to life or of injury. In the light of this, we have focused on firefighting services, including co-ordination of the emergency response, because these are all critical to ensuring that fires are dealt with promptly and effectively in order to protect the public.
Lord Collins of Highbury
Yet the argument is made that ticket offices are not needed any more; they are closing them and Transport for London is going to propose that a number of stations will not be staffed. I hope that the Government will tell Transport for London that it is damaging people’s confidence in a public service and therefore it must keep the ticket offices there.
Baroness Neville-Rolfe
I think we all feel that the plight and the needs of the disabled and elderly are important, but I was trying to explain the logic on this occasion. The fact that people in ticket offices are helping disabled and vulnerable people is actually a big positive.
There was some discussion about why London buses but not rural buses are included. During the recent strike of 2015, TfL achieved a partial service, but this resulted in 7.5 million fewer journeys. Workers on low incomes rely disproportionately on the bus service in London; around 40% of people using buses are on concessionary fares and some 50% of bus passengers have an annual household income below £20,000. In contrast, there is limited evidence of the impact of strike action on local bus services outside London and on the sorts of users who rely on these services.
Finally, in the Border Force we are addressing the significant risks to public safety in the event of disruption to border controls. We have focused on services in respect of the entry and exit of people and goods, as these are central to the carrying out of checks and to preventing illicit commodities, such as unlicensed drugs and munitions, entering the country.
The noble Lord, Lord Collins, asked about progress on nuclear decommissioning and when our findings will be announced. The sector, as he knows, is a complex, heavy-industry sector with interdependencies between the workforces within and between sites. The Government are working to better understand these interdependencies and the implications of forthcoming business changes, and to support workforce reform plans, before bringing forward regulations to apply the threshold in this sector. Any regulations will be subject to the affirmative procedure.
Lord Oates
The Minister said that the reason the rules were not being applied to private schools was because there was no evidence of widespread disruption in such schools. Is there evidence of such disruption in the nuclear decommissioning industry? If not, why is it being included?
Baroness Neville-Rolfe
I think the arrangements on nuclear decommissioning are still under consideration. I can certainly come back to the noble Lord on the question of past disruption. It is clearly an area where it does seem important that strikes should not be entered into lightly. As I have said, there will be regulations, they will be subject to the affirmative procedure and this is on the list with good reason. The noble Lord will understand that we are looking very carefully at the arrangements and we have not come to a final view. I am sorry that on the question of timing I cannot give a firm answer, but I can say that we will be bringing an affirmative resolution forward.
Lord Foulkes of Cumnock (Lab)
But surely all the private schools—or as you call them in England, public schools—are even more important. If the teachers go on strike in them, where are we going to get our Prime Ministers or our Chancellors of the Exchequer from? It would be an absolute disaster for this country if the teachers in those schools, a lot of whom are untrained, did so. The Minister has misrepresented and misunderstood the dangers that we would face.
Baroness Neville-Rolfe
I am very sorry to disappoint the noble Lord but there is no evidence of strike action in those institutions having a major impact or, I think, of strike action at all. I am seeking to explain the difficult decisions that we have taken and set out in our consultation paper for the benefit of the House this evening. Perhaps I may continue, as it is getting late.
I believe members of the public would agree that strikes in the crucial services that I have outlined should take place only when there is a reasonable level of support. Restrictions on Article 11 of the European Convention on Human Rights are permitted where they are justified by a legitimate aim and are proportionate. The courts have made it clear that they will respect the margin of appreciation accorded to each national Government to decide on industrial relations policy. I hope I have assured noble Lords that we have thought carefully about where the threshold should apply, and that the specified services are justified.
“Essential services” of course means something very different. They are referred to by some of the reports of the ILO supervisory bodies in respect of services where it may be legitimate in certain situations to limit or prohibit strike action. Amendments 5, 10, 12 and 13 would wrongly align the 40% threshold with the ILO’s interpretation of “essential services”. The threshold is about ensuring that strikes can go ahead if they have a strong democratic mandate; it does not prohibit strikes. The Government have therefore deliberately chosen the term “important public services” to describe the services covered by the 40% threshold.
Lord Oates
I am sorry to intervene again but the Minister is simply wrong in this matter. As she mentioned, the ILO labour guidelines as set out in Chapter V define essential services. They talk about not just the prohibition on strikes but the limiting of strikes. It is simply not possible to argue that a 40% threshold is not a limit on the right to strike. The Minister may say that it is a legitimate limit but it is definitely a limit on the right to strike.
Baroness Neville-Rolfe
I am afraid that we will have to disagree on that point.
Lord King of Bridgwater
The noble Lord, Lord Oates, ought to have listened more carefully to the noble Lord, Lord Pannick, who put this point clearly. It is a question of disproportion and whether it is unreasonable. I am very touched by this debate because the Minister is trying to limit the number of occupations that should be subject to this requirement and the noble Lords, Lord Foulkes and Lord Collins, are pleading for certain other categories to be included as well, which is an extraordinary event.
Baroness Neville-Rolfe
My noble friend has kindly made the point that I was about to make about the noble Lord, Lord Pannick. Perhaps I should say finally that we do not want confusion and conflation of the two terms. In any event, the supervisory bodies of the ILO fulfil an informal advisory role and their decisions are not legally binding on the UK.
I turn to Amendment 18, which proposes that the Government will have only one chance to make subordinate legislation on the services to be covered by the 40% threshold, which I think is what the noble Lord, Lord Stoneham, explained. In our skeleton regulations we specified important public services, as I have said, according to the available evidence but we acknowledged that the significance of public services could change in the future. Today’s important services are not the same as those of 50 years ago and they will again be different in 50 years’ time, when the next transformational change—the successor to the internet—has arrived. Moreover, it would not be right for services to remain specified in secondary legislation if reduced service levels and staff absence become less disruptive to the public. Equally, it would not be right if the Government could not capture further public services within the limits set by the Bill, if further evidence was obtained on the impact of strike action in those areas.
My noble friend Lord Leigh does not seem to be here but, to give a curtain raiser, I was not intending to accept the amendment that we were about to discuss next. I hope that is not unparliamentary, but we did discuss this at Second Reading and that amendment, Amendment 4, expands things in a way that is not the Government’s intention.
Finally, Amendment 6 is a good example of the kind of agreement between the Opposition and the Government—in fact, all sides—which is often possible in this House. We initially included ancillary workers because staff who are not on the front line but play a supportive role could be critical to the delivery of important public services. There is a case here, but we have accepted, on reflection, that it would add unwelcome complexity for unions and others involved. We can all agree that the word “ancillary” is open to a number of different interpretations. Having agreed this amendment, the Committee can be assured that only workers who deliver an important public service would be included within the threshold. The regulations would specify, as now proposed, exactly who will be covered. Unions would not have to consider whether there were any additional ancillary workers on top of this. I commend Amendment 6 and hope that the Committee will be able to agree it.
Lord Collins of Highbury
I thank the Minister for her response. For the avoidance of doubt, I reassure the noble Lord, Lord King, that I was not, for one moment, suggesting additional categories, but the debate, and the Minister’s response, have illustrated that this legislation is incoherent and inconsistent. Our purpose in Committee today was to highlight that and we will return to these issues later on. In the mean time, I beg to withdraw Amendment 3.
Lord Mendelsohn
Baroness Morgan of Ely
“(2EA) Regulations under subsection (2D) may not specify services that fall within any of the following categories—
(a) health services provided in Wales;(b) education provided in Wales for those aged under 17;(c) fire services in Wales; and(d) transport services in Wales falling within paragraph 10 of Schedule 7 to the Government of Wales Act 2006 (highways and transport).”
Baroness Morgan of Ely (Lab)
I thank noble Lords for that lovely welcome. The amendments in this group explore the impacts of the Bill on the devolved Administrations of the United Kingdom. Noble Lords will know that we live in a country which has four distinct legislatures: bodies that are responsible for legislating and administrating in distinct parts of the United Kingdom. The devolved structures and powers of the Administrations in Scotland, England, Wales and Northern Ireland are very different. The one thing common to them is that many public services, including health, education, local government and fire services, are devolved. Many of the services referred to in the Bill relate to public services. Should the Government of the UK be able to legislate in this area, despite the fact that public services are devolved? It is unclear. I warn the Minister that there is a real danger that if the Bill goes through in its current form, it will release a constitutional firestorm which will be much more powerful than anything we have seen today from Storm Imogen.
I am going to concentrate my comments on the issues affecting Wales and I will allow colleagues to pick up on issues relating to the other devolved nations.
Baroness Randerson (LD)
My Lords, I rise to speak to all the amendments in this group, both those in my name and those in the name of my noble friend Lord Purvis.
I was a Minister in the Wales Office when the Assembly’s Agricultural Sector (Wales) Bill started its passage. The purpose of that Bill was the regulation of agricultural wages. At that time, in the Wales Office our advice was simple: this Bill related to employment and industrial relations and was therefore outside the Assembly’s competence. The Welsh Government’s Counsel General argued, however, that it was within competence because it related to the agricultural sector and agriculture is a devolved issue.
In due course, that Bill was referred to the Supreme Court, which decided that it was within the Assembly’s competence because the term “agriculture” meant all aspects and constituent elements of the industry. It accepted that it could also be classified as dealing with employment issues which were non-devolved but the fact that it also related to agriculture brought it within the scope of the Assembly’s power. That is, the Supreme Court took a broad view of devolved competences. In short, given the frequent vagueness of the 2006 Act, the ruling was that, if in doubt, it is to be considered devolved. In that way, the settlement for devolution in Wales turned out to be much broader than the UK Government had assumed it to be and even broader than the Welsh Government had assumed it to be.
I tell this story because it is a very important background to the current situation we have here. It seems to me that the Government have not been listening—either that or they have failed to learn their lesson. Although I might put it rather less emotionally than the noble Baroness, Lady Morgan, I say to the Government that they are getting into very deep water on this one because it is bound to be tested legally. I do not know how much the Government have talked to the Welsh Government, but I cannot find any reference to those conversations. I cannot find any reference to discussions. Certainly, the very bulky impact assessment does not seem to refer to anything connected with the impact on the devolved Governments and on the devolved services in Scotland, Wales or Northern Ireland.
Lord Hain (Lab)
My Lords, I refer to the register of interests. The amendments tabled by my noble friend Lady Morgan of Ely, the noble Lord, Lord Wigley, the noble Baroness, Lady Randerson, and me reflect the cross-party support in your Lordships’ House that is also evident in the Motion overwhelmingly carried by the Welsh Assembly on 26 January with the backing of 43 out of 60 Assembly Members against 13 Conservatives. The Assembly’s vote was on a legislative consent Motion, a convention of this Parliament that enables devolved Governments to give consent to Westminster to amend legislation relating to areas normally within the devolved Government’s responsibility. After this overwhelming vote, the convention would normally require that the UK Government now amend this Bill to remove legislation that pertains to devolved powers, such as the rules governing public servants in Wales, whether payroll deductions of trade union subscriptions should be made, and so on. Moving the Motion, Public Services Minister Leighton Andrews said:
“The Bill is damaging, divisive and risks undermining public services and the economy. The Welsh Government believes it will lead to a confrontational relationship between employers and workforce. It contrasts sharply with the constructive social partnership approach in Wales, valuing our workforce, supporting public services and encouraging”,
enterprise.
“Overall, we believe the Bill is flawed and should not be pursued”.
He pointed out that:
“In Wales, we have a good record of resolving disputes. There was no junior doctors’ strike in Wales; there was in England. Firefighters took industrial action in England over pensions; they were not doing so in Wales”.
He added that, if the UK Government ignored the Assembly’s wishes, the Welsh Government would seek to overturn the impact in Wales, as they have successfully done on two occasions in the Supreme Court, as we heard from the noble Baroness and my noble friend.
Indeed, Wales’s First Minister, Carwyn Jones, told the Assembly that his Government will fight clauses in this Bill pertaining to Welsh public services if they become law. He said that,
“if it comes to the point where that Bill is passed and its provisions are applied to devolved public services, then we will seek to introduce a Bill in this Chamber to overturn the sections of the Bill that impact in devolved areas. It’s a matter for the UK Government as to whether they then wish to go to the Supreme Court in order to frustrate the will of this democratically elected Assembly”.
Therefore I ask your Lordships to respect the democratic wishes of the Welsh Assembly in backing that same policy by granting Wales’s legislature the right to determine how or if some of the key provisions in this Bill should be applied to public services in Wales. As the First Minister made explicit, if the Bill is enacted without the amendments we have tabled, the Welsh Government will introduce their own legislation to overturn the changes as they affect Wales as soon as possible. This is therefore less an argument about the substance of the relevant clauses in the Bill and more one about the nature of the devolution settlement the UK Parliament has agreed for Wales in the Government of Wales Acts 1998 and 2006, endorsed by subsequent Welsh legislation passed by Parliament, including the Wales Act 2014 proposed and enacted by the last Conservative-led Government.
As my noble friend has done, I draw your Lordships’ attention to the draft Wales Bill now before both Houses of Parliament. Its Clause 2 would place on a statutory footing the constitutional convention that Westminster would not normally legislate,
“with regard to devolved matters”,
without the consent of that devolved legislature. So on the one hand, in the draft Wales Bill, the Government are, commendably, making statutory a convention that has applied since 1999, and on the other hand they are completely undermining it in this Bill. In other words, the Government’s own draft Wales Bill reinforces the point that I am arguing; indeed, it makes that stronger by proposing a statutory requirement as opposed to the current convention that Westminster legislation affecting Wales in matters already devolved to Wales would require a legislative consent Motion from the Welsh Assembly—precisely what we are seeking your Lordships to endorse in respect of this Bill.
My case is not so much about the merits of the issues in the Bill as about the constitutional issues of foisting it upon a Welsh Assembly that has voted exclusively on a legislative consent Motion insisting that it, not our Parliament, should determine the minutiae of public service delivery provisions within Wales. These amendments would apply solely to those public services that are devolved to Wales—education, health, housing and so on. Consequently, should the Government accept these amendments, which I strongly urge, in line with the request by the Welsh Government and adopted by the Assembly a few weeks ago, the Bill would still apply in the private sector in Wales.
We explained all this in person to the Minister, and I thank her for her courtesy and time in permitting us to do so. Regrettably, though, I gather that the lady is not for turning—unless she says otherwise this evening. If I am right, she appears to insist that the 40% threshold for strikes in the Bill was a matter of principle flowing from a manifesto commitment. I leave aside whether the fact that a party commanding just 37% of the vote and a miserly 24% of the registered electorate constitutes a mandate that your Lordships must respect, but I cannot believe that subsidiary details in the Bill concerning payroll deductions, check-off and opt-ins to the political levy are really of the same order as strikes. If the Minister is still uncompromising on the 40% issue, might she consider making all the other relevant provisions of the Bill covered by our amendments subject to consent by the Welsh legislature? I ask her seriously to reflect on that point.
Having served as Secretary of State for Wales for seven years, during which I was responsible for the Government of Wales Act 2006—the basis for the settlement that has operated since—I am extremely concerned at the damaging precedent that the Bill is establishing. The Minister for Public Services, Leighton Andrews, argued in the Welsh Assembly on 14 October on behalf of the Welsh Government:
“The Bill is driven by a flawed view of trade unions as a problem. We see trade unions as a partner. So, this Bill contrasts sharply with our constructive social partnership approach in Wales of valuing the workforce, supporting public services and encouraging enterprise … The benefits of a constructive approach to social partnership can be seen in our good record of resolving disputes … more quickly than in England”.
The Welsh Government’s position on the Bill was set out in a Written Statement to the Assembly on 9 September 2015, which insisted that the Bill relates to devolved responsibilities. In carrying out this House’s long-established duties of scrutiny and revision, your Lordships have consistently and rightly taken a forensic interest in constitutional matters. I submit that key proposals in the Bill encroach upon the responsibilities of the Welsh Government in respect of the administration and delivery of public services in Wales. Provisions in the Bill should therefore not be applied to Wales without the consent of the National Assembly for Wales, and that is the purpose of these amendments.
I want to be clear: adopting these amendments would not necessarily mean passing judgment on the Bill’s provisions as they apply to public services in Wales. If after the coming election, for example, a Conservative-led coalition were to emerge as the new Welsh Government—perhaps unlikely but certainly not impossible, given recent opinion polls—they could choose to accept all the Bill’s provisions as they apply to Welsh public services through a legislative consent Motion. Significant parts of the Bill relate specifically to important public services, which are clearly devolved. The legislative consent memorandum laid in the Assembly by Leighton Andrews prior to the recent vote set out the Welsh Government’s view that the Assembly’s consent would be required for Clauses 3, 12, 13 and 14 of the Bill as they relate to devolved matters. The memorandum explained why the legislative consent Motion was tabled under the Assembly’s Standing Order 29.6 seeking Welsh Assembly Members’ consent to the inclusion of Clauses 3, 12, 13 and 14 in the Bill, and explained that the Welsh Government’s view is that consent should not be given. On 26 January, as I have mentioned, the Assembly overwhelmingly endorsed the Government’s position.
The Earl of Courtown (Con)
My Lords, shall we hear from my noble friend Lord Balfe?
Lord Balfe
I shall be brief. I begin where the noble Lord, Lord Hain, ended, which is with the leaked letter. The points put by the noble Baroness, Lady Morgan, were extremely well made. There are clearly a whole number of issues within the Bill. If we are to believe the leaked letter, which I probably do, and as we are not going to vote tonight, I hope that the Minister will look very carefully at all these amendments with a view to coming back and assuring the House that, if we asked to sustain our opposition to them, she has firm advice from the Attorney-General that that will stand up in court. I am not afraid of our occasionally going to the Supreme Court to clarify matters—I think it is probably necessary in a devolution settlement—but we should be on firm ground. If we do go to the Supreme Court, we should have a recommendation from the Attorney-General that he is quite satisfied that legally we are in the right in what we do.
When it comes to things such as deductions of contributions at source, about which at another opportunity I shall make some very clear points, if devolution means anything, surely it does not mean that we are going to ask Cardiff hospital, for example, to stop deducting the subscriptions of their union members if that is done at no cost to public funds and is seen as beneficial to industrial relations in Wales. What does devolution mean if simple things like that cannot happen? Maybe they cannot happen but, if that is the case, I hope that the Minister will be prepared to publish and share with us the views of our Attorney-General as to why this is a sound clause.
The Earl of Courtown
My Lords, I think that it is the turn of the noble Lord, Lord Wigley, whose name is added to the amendment.
Lord Wigley
What about Scotland, indeed? I will not trouble the Committee by going down that avenue. First, I apologise for the fact that, although I was in the House at the time of the Second Reading, I was unable to take part in the debate. However, I read the report of the bits that I was not in the Chamber for. I was particularly impressed by the contributions of the noble Baroness, Lady Morgan of Ely, and the noble Lord, Lord Hain, which are relevant to our debate tonight.
I have always been a strong advocate of free, unfettered trade unions having an essential role in the checks and balances within any free economy. From my previous life in industry—particularly my time as financial controller at Hoover in Merthyr Tydfil—I know the importance of having strong, well-led trade unions. It is in the interests of the owners, the management and the workforce alike that trade unions are facilitated and not undermined in undertaking that essential role.
I support Amendment 16 standing in my name and those of the noble Baronesses, Lady Morgan of Ely and Lady Randerson, and the noble Lord, Lord Hain. It excludes important services in Wales from the provisions of the 1992 Act—specifically health and school-age education, which are entirely devolved functions. Other amendments, which no doubt the noble Lord, Lord Foulkes, will speak to in a few moments, address a wider sphere, but they are all relevant to the central proposition that it is totally unacceptable for the UK Government to create a legislative framework for devolved services which will lead to a totally unnecessary poisoning of industrial relations in Wales.
We have a long and honourable tradition of trade unions in Wales. We recognise the essential need for trade unions to stand up for the rights of their members, and in recent years the workforce of the public services in Wales has not been involved in any spurious or politically motivated strike action. Because of our tradition of partnership working, we have avoided strikes. And, as so many contributors tonight have mentioned, it is not in Wales that the junior doctors have been on strike.
So if it is not broken, why on earth are the Government imposing this legislation on Wales without any discussion whatsoever? Not only is the legislation being imposed on Wales, it is being done in a manner that totally ignores the agreed framework set up as part of the devolution settlement to deal with such issues. As was emphasised by the former Presiding Officer of the National Assembly, the noble Lord, Lord Elis-Thomas, the UK Government are riding roughshod over established agreements. As he said in the debate in the Assembly a couple of weeks ago on this very issue,
“the terms set out in devolution guidance note 9, paragraph 11, have not been adhered to by the UK Government in this case … there has not been proper consultation, either through the Wales Office or directly with Welsh Government”.
This amounts not only to a cavalier disregard of the right of the Welsh Government to be involved in discussions on policy that impacts on their ability to deliver devolved services for which they are held responsible, but also ignores the working practices that have been set up by Westminster, as has been emphasised tonight.
A similar lack of consultation has been witnessed in Scotland. The Minister replying to that allegation in the House of Commons on 14 September merely assessed that consultation was,
“open to every stakeholder in the United Kingdom, including those in Scotland”.—[Official Report, Commons, 14/9/15; col. 771.]
What an appallingly arrogant attitude towards an elected Government and what a glaring example of the lack of respect towards other elected public representatives.
The Government would have been very well advised if they had consulted the Welsh Government before going down this path. Had they done so, they would have realised that, because this Bill, if enacted, will have a direct impact on the way the Welsh Government undertake their statutory responsibility for devolved services, a legislative consent order will need to be passed by the National Assembly for Clauses 3, 12, 13 and 14 to be applicable in Wales. Two weeks ago, as has been mentioned, such an order was in fact tabled in the National Assembly and voted down by 43 votes to 13.
If the Government are so arrogant or, if I may say so, so stupid as to take this Bill forward in its present form, unamended, clearly, the issue will again end up in the courts, which is not where these things should be resolved. To avoid such an outcome, the Welsh Government have asked the UK Government to amend this Bill to exclude Wales and Welsh public services from its provisions. The Labour Government in Cardiff are fully supported by Plaid Cymru and the Liberal Democrats in the Assembly in this matter. Indeed, it has been reported in the press that Conservative AMs are extremely unhappy at having been put in this position. The words quoted in the press were that they are “in despair”. One can well understand that; although out of misplaced loyalty, I suggest, they supported their Westminster counterparts when it came to a vote.
I appeal to the Minister to undertake, between now and Report, to meet representatives of the political parties in Wales, particularly Welsh Ministers, and to bring forward reasonable amendments to avoid the consequences of these disastrous provisions.
Lord Foulkes of Cumnock
My Lords, we have heard four powerful and eloquent pleas from Wales. I hope it is now possible just to say a few words on behalf of the quiet, unassuming people of Scotland. To be serious, this is a matter that people in Scotland, and particularly the Parliament and Government of Scotland, feel equally as strongly about—if not more strongly—as the Parliament and Government of Wales. I am therefore concerned that the House of Lords—and I say this knowing that the Government Chief Whip is here—is dealing with this at 10.45 pm. This is a matter of great importance. It is a very serious matter. It is a matter which more Members of the House should be participating in. It is a pity that it was not dealt with at a more suitable time.
The Minister said early on—I have sat through an awful lot of her speeches—that she was in listening mode. I have yet to see evidence of that, but let us give her the benefit of the doubt and assume that she is. There could not be an issue on which it is more important for her to be in listening mode than this one. The fact that neither she nor her colleagues have had discussions with the Governments and Parliaments of Wales, Scotland and Northern Ireland on these issues is lamentable. It does not indicate that the Government are willing to listen.
As far back as November 2015 in Holyrood, they voted by 104 votes to 14 to oppose this Bill. All the parties except the Conservative Party—every one of them, and the independents too—opposed it. They discussed it again in Holyrood on 26 January, the same day that the Welsh Assembly discussed it. Again, the opinion was overwhelming: only one spokesperson, the Conservative spokesperson, defended the Bill—rather inadequately, but we are used to that. Powerful arguments were made against it.
I do not often do this, but I shall now quote Roseanna Cunningham, the Cabinet Secretary for Fair Work, Skills and Training—a member of the SNP. On this occasion she made an excellent, powerful speech against the Bill, and in favour of the Holyrood motion. Unusually, she also paid tribute to the House of Lords—we do not often hear that from the SNP—because we had been able to ask the Government to think again. Other tributes to the House of Lords were also made in that debate. That is something that we should acknowledge.
Roseanna Cunningham is not a Labour person; she is an SNP member, but she said that she had explained,
“the Scottish Government’s view that trade unions are a force for good in modern society; that unionised workplaces have more engaged staff, a higher level of staff training and a progressive approach to staff wellbeing; that unions help employers to create the safe, humane and productive working conditions that head off industrial disputes and build better businesses; that any legislation that undermines the value and contribution that trade unions can make is a ‘thoroughly bad idea’; and that the bill is nothing more than an ideological attack on unions, with no evidence to underpin it”.
That is a powerful argument, which we on the Labour, Liberal Democrat and Plaid Cymru Benches here have been putting here, and our arguments are echoed by the SNP in Scotland.
The Devolution (Further Powers) Committee took evidence on the Bill from STUC, from employers and from a whole range of local government people. It said that there was no support for ballot thresholds, or for a cap on facility time or check-off provisions—there was no evidence to support the Bill. The committee went through the kind of exercise that we have not gone through here: it looked at the Bill in detail, and expressed concern at the lack of consultation with public sector employees in Scotland. It also pointed out that—as was also mentioned in the Holyrood debate—the Scottish Government as an employer has had check-off for years, and the costs are so minimal that the unions have not needed to be charged. Yet the Scottish Government are now being forced to act against their own will and experience. It is outrageous that this Government are forcing the Scottish Government to act in that way.
Roseanna Cunningham and the Scottish Parliament went on to say that they wanted Scotland removed from the Bill. That is their main aim, and that is what the Welsh Assembly said as well. But at the very minimum—I put this forward as a hint or suggestion for the Minister—they wanted regulation-making powers relating to facility time and check-off to be conferred on Scottish Ministers. That, at least, would be a compromise. It would not be the ideal situation, but if such regulation-making powers were conferred on Scottish and Welsh Ministers, that would be a move in the right direction.
Incidentally, during the debate, Bruce Crawford, who chaired the committee that looked at this issue, pointed out that even Tories in local government—the noble Lord, Lord Balfe, is here to show this—do not like aspects of the Bill. He pointed out that a Tory councillor in East Dumbartonshire, Billy Hendry, was concerned about the provisions of the Bill, saying that there was no evidence to support it and that it was an “unnecessary and unjustified imposition”.
Bruce Crawford went on to say that the Bill should be amended in the House of Lords—again an acknowledgement of the role of the House of Lords from an SNP member which I was encouraged to hear. We are making progress on this. It is wonderful. We will have them in here soon, so that Dafydd will have friends—he has friends now but he will also have associates. Bruce Crawford said that,
“the bill should be amended in … the House of Lords so that it does not apply to Scotland”;
and that such amendments should be,
“by any means available to it”,
encouraging us to press and push as hard as possible.
In one of the most powerful speeches in the debate in Holyrood on 26 January, Patricia Ferguson—a good friend of mine, a Labour Member of the Scottish Parliament and a former Minister in the Scottish Government—referred to the amendments to which I and my noble friends Lady Morgan and Lord Hain and the noble Lord, Lord Purvis—who is not in his place—have put our names. She asked for the support of the House of Lords. She said—this is good—that if we do not see any movement from the Government then the Scottish Parliament, the Welsh Assembly and the Northern Irish Assembly should get together on an all-party basis and come down in a protest to No. 10 Downing Street and put strong, powerful pressure on this Conservative Government. If we do not get some movement then the constitutional firestorm to which my noble friend Lady Morgan of Ely predicted will come about.
I hope the Minister will pass these message back to her colleagues, to Mr Boles, to the Secretary of State and to the Prime Minister that this provision must be amended, otherwise there will be an outrage the like of which she has never seen before.
Lord McAvoy
My Lords, I have some class acts to follow from this side of the Committee on the case that has been put for the amendments, which I support, but I want to touch on the fact that we are debating the future of Scotland and Wales at eight minutes to 11 at night. We agreed extra time for this debate because we are responsible and co-operative—I am one of the most co-operative Front Benchers here—but half of the contributions of the noble Lords, Lord King and Lord Balfe, out of the time that we were good enough to give the Government, were spent attacking the Labour Party, the trade unions and our role and place in society. Again, that is testament to the vindictive nature of the Government’s legislation. I think it was Winston Churchill who said that no temporary political alliance in government should disadvantage its political opponents. That is what is happening in this Government, both in the Short money and through other legislation against the trade unions. We are here discussing the future of Scotland and Wales at seven minutes to 11. That message will not be lost in Scotland and Wales. It is further evidence that this Government are badly damaging the unionist cause.
This legislation is politically pernicious: it flies in the face of what we know about effective industrial relations policies and undermines the devolution settlement. It is the latter that I want to focus on today. In my brief contribution, I want to concentrate my attention on the constitutional implications that this Bill will have in Scotland. The amendments would exclude the Scottish Government and, indeed, the other devolved Administrations across the UK from certain elements of the Bill, ensuring that the Government’s commitment to the devolved Administrations is kept and upholding the settlement which they claim to support.
We suggest that the devolved Administrations should not be subject to specific clauses in the Bill: Clause 3, which introduces the 40% support requirement for industrial action in certain public services; Clause 10, which provides requirements for opting-in to trade union political funds by public sector employees who work in sectors or provide services that are devolved; the requirements on publication and the provision for facility time in Clauses 12 and 13; and Clause 14, which introduces the ban on check-off arrangements.
Check-off arrangements have worked successfully throughout this country for many, many years. The noble Lord, Lord Wigley, mentioned working in the Hoover factory in Merthyr Tydfil. I worked in the Hoover factory in Cambuslang. In both factories, there were quite satisfactory check-off arrangements, and they worked for years. The employer, for the most part, was an enlightened employer and co-operated fully.
Taken together, our proposals would have the effect of mitigating the elements of the Bill which placed obstructions on the Scottish Parliament’s ability to decide how best to engage with staff and trade unions when delivering devolved services. One of the most blatant ways the Government are doing this is by limiting the amount of facility time trade union workplace representatives can spend representing members of the public sector—the result being that trade unions would be prevented from representing their members’ interests by negotiating improvements on pay and conditions, raising safety standards, promoting access to skills and training and accompanying individuals to grievance and disciplinary hearings. All these and a good employer-employee relationship benefit everyone.
Moreover, in Scotland it will also impact health bodies, as union representatives sit on health boards. Not only would this cut across the face of the devolution settlement, it would also hinder constructive employment relations which contribute to the level of the delivery of quality public services.
Furthermore, as drafted, this legislation enables the Secretary of State to make regulations to redefine “important public services”. Leaving aside for a moment the fact that broadening the definition of essential services, recognised in international law, raises the serious prospect of legal challenge—as has been mentioned by many noble Lords—I point out that many public services are devolved issues. This is, therefore, a clear example of the UK Government overstepping the mark.
The amendments would also protect against the democratic deficit that would be created by the enactment of this Bill. At present, secondary legislation to restrict or repeal trade unionists’ rights could be used, thereby preventing an opportunity to amend or even debate the legislation. While this Government seem to hold the process of consultation and engagement in contempt, we have a firm belief that this is an essential way of getting not only the best legislation but also the highest standards in our public services.
These amendments are just one mechanism we are using to make our defence against this Bill. From the outset, we have been clear that we will leave no stone unturned, and that includes support for lodging a legislative consent Motion in the Scottish Parliament. Your Lordships will know that such a Motion was filed with the Presiding Officer of the Scottish Parliament by James Kelly, a Member of the Scottish Parliament for my own constituency of Rutherglen. He tried tenaciously and courageously to get the legislation consent Motion. He is a doughty fighter for trade union rights and representing the people, and he was ejected from the Chamber. There is a lot of feeling over this.
Given the very clear and legitimate grounds for proceeding in this manner, we are bitterly disappointed that this application was denied. We believe that, due to the detriment that this Bill will have on the Scottish Government’s ability to carry out its devolved responsibilities, we are legally justified in pursuing this course of action. My colleagues in the Scottish Parliament have written to Stewart Stevenson, convener of the Standards, Procedures and Public Appointments Committee, to urgently request a change in the standing orders. This would ensure that,
“If a Bill under consideration in the UK Parliament does not identify a requirement for a Legislative Consent Motion, a member (including a member of the Scottish Government) may lodge a motion seeking the Parliament’s consent to treat the Bill as a ‘relevant Bill’”,
in relation to an LCM. Last month, Labour tabled the necessary Motion, backed by Green and independent MSPs, and will continue to press for this change.
Let there be no doubt: we will fight this tooth and nail, not just in Westminster, Holyrood and Cardiff, but at grass-roots level. Labour-controlled Scottish local authorities have led the way by passing motions of non-compliance with restrictions to facilities time and abrogation of the check-off. Among those councils that declare an interest is the council area where I stay, where my brother, Edward McAvoy is council leader. I make that plain. He has done a brilliant job. He is my big brother by the way; I am scared of him.
Our commitment to standing up for the rights of workers and trade unions across the UK is unwavering. The Bill is nothing more than a Conservative Party political tool that will, in the same breath, undermine effective industrial relations and have a corrosive impact on the entire devolution settlement. Curtailing the powers of the devolved Administrations to act in the interest of the people who have elected them is utterly shameful. I call on the Minister to heed the many warnings and pieces of advice she has received today and take a moment to consider with her colleagues the scale of the constitutional precedent the Bill will set. We have made very clear our views on what we regard as the motivation for the Bill, but, as we have also attempted to set out, our frustration and concern also relate to the Government’s disregard for the very foundations of the devolution settlement of the United Kingdom. To rectify this, I beg and urge the Government to accept the amendments.
Baroness Neville-Rolfe
My Lords, I thank noble Lords for the debate and note the passion that has been expressed. I am particularly grateful to the noble Baroness, Lady Morgan of Ely, and to the noble Lord, Lord Hain, for the useful meeting we had last week and for the trouble that they took in taking me through how they see the impact of this Bill applying to devolved public services and public bodies in Wales. I thank the noble Baroness for explaining the legislative consent Motion debate in the Welsh Assembly that took place two weeks ago, for giving her views of the implications this evening, and for reminding us of the forthcoming elections in Wales, where, last year, this party made good progress. I thank the noble Lord, Lord McAvoy, for doing the same service this evening for Scotland.
The Bill will ensure that strike action can go ahead only with a strong and recent mandate from union members. It will increase protections for non-striking workers against intimidation, and increase transparency for union members and taxpayers. It will create an appropriate regulatory environment for unions. It is clear that the benefits this will bring to the wider public should apply consistently across the whole of Britain.
Employment and industrial relations law are clearly reserved matters, as has been said, under the devolution settlements with Scotland and not conferred in Wales. The noble Baroness, Lady Morgan, referred to the Supreme Court judgment in the Agricultural Sector (Wales) Bill, where the court held that the case relates to multiple subjects and thus fell within the competence of the Welsh Assembly. The Supreme Court ruling concerned a completely different situation, where the devolved subject of agriculture was specifically in play. By contrast, this Bill has nothing to do with the regulation of public services. It is squarely concerned with industrial relations and how trade unions are regulated.
The issue of competence is a fact-specific question that can be answered only by careful analysis of the statutory and factual context. In another Supreme Court case in the area of deciding the competence of the Welsh Government—re recovery of medical costs—the Supreme Court followed the same approach as in the agricultural sector case, but came to a completely different conclusion. It decided that the area in play was not devolved.
It would be unworkable to have different employment laws applying in the different jurisdictions in Great Britain. This was recently considered by the Smith commission for Scotland, and it concluded that employment and industrial relations law should remain reserved.
The noble Baroness, Lady Morgan, asked about legal advice. As noble Lords would expect, the Government have taken legal advice on the measures in the Bill relating to a number of areas. The Government do not, as she probably knows, disclose such advice; nor do we comment on leaked documents. The Government are committed, in implementing the Trade Union Bill, to fairly balance the right to strike with the rights of millions of people to go about their normal lives. Having said that, it will come as no surprise to noble Lords that I am always keen to explore areas of potential agreement, but the measures before us do reflect our manifesto and were supported by a clear majority in the elected Chamber.
The noble Lord, Lord Hain, said that he was less interested in the substance of the Bill than in the constitutional issues. As it is late, I will not go through the amendments clause by clause—although I can respond if that is wanted. I just point out that many employers will have staff across some or all of these regions. Business leaders have rightly raised concerns that this could create administrative complexities and could result in differential treatment of different groups of employees. This is not a matter of minute detail. The Government’s objective is to drive productivity and growth across the United Kingdom. These amendments could generate a lot of confusion and additional costs for both employers and unions and make it more complex for businesses to expand into other regions.
The Trade Union Bill is not the right forum for pushing forward the frontiers of the devolution settlements. Employment and industrial relations are reserved matters and the Bill, which deals with employment and industrial relations law, should respect that.
Lord Foulkes of Cumnock
Before the Minister closes the debate, she has not dealt with my suggestion, which comes from the Scottish Executive, that, at the very least, regulation-making powers for check-off and facility time might be given to Scottish and Welsh Ministers. That does not take away our powers here in the United Kingdom Parliament over employment law. We are still making the law; all that we are saying is that these regulation-making powers for those two areas should be given to Scottish and Welsh Ministers. If the Minister really is in listening mode, she does not need to agree to that today; all she needs to say is that she will look at it, discuss it with her colleagues and come back on Report.
Baroness Neville-Rolfe
My Lords, in the tradition of this House, I do not want to close the debate without saying that we are open to further discussion. We are, of course, open to discussing implementation of the Trade Union Bill in Wales and Scotland. To answer, as far as I can, the questions from the noble Baroness, Lady Randerson, and the noble Lord, Lord Wigley, my colleague Nick Boles spoke only last week to Roseanna Cunningham, Cabinet Secretary for Fair Work in the Scottish Government, and to Leighton Andrews, Minister for Public Services in the Welsh Government; both “stars” who have already featured in this evening’s debate. Of course, discussions are still going on in the context of the Scotland Bill, which is being scrutinised by a Committee of this House, and the draft Wales Bill, which the Government published in October. They are also part of a complex picture and need to be taken into account.
My Lords, it is late, we have discussed this at length and I ask noble Lords to withdraw their amendments.
Baroness Morgan of Ely
I thank the Minister and noble Lords who have contributed to this debate. I am sure the Minister has felt the pressure and intensity that Members of this House feel about this issue, particularly the devolution settlement, and why that is the issue we have focused on tonight. We have tried carefully not to wander into the area of the substance of the debate; this is really about the constitutional settlement of the United Kingdom. It would have been irresponsible of us in this place not to have drawn the Government’s attention to the fact that they are writing a law here which will be sent to the Supreme Court. That is irresponsible law-making. It is our job to make sure that people understand that that is what will happen if this is pushed through in its current form.
It is really worth underlining two other Bills going through the House at the moment, which the Minister was right to draw attention to: a Scotland Bill and a draft Wales Bill. Both directly contradict what is happening here. I urge the Government to think very carefully about consistency and respect for the devolution settlement, and to make sure that there is an understanding that legislative consent motions should be respected and agreed to.
I also ask the Minister to think carefully when she suggests that this is not relevant because it is employment law. We would argue that it is not simply about employment law but goes much further than that. It is about public services and the right of the devolved institutions to deliver public services in the way that they choose. Will the Minister think very carefully about how we proceed? Please will she look at the legal advice? I am sure she will not want to go down a route which will take us to the Supreme Court. I hope that she will listen to the passion expressed here tonight. We look in particular for her to think carefully about check-off and facility time, and to think again about accepting the amendments we have put forward tonight, but I beg leave to withdraw the amendment in my name.
Lord Balfe
“Ballots: electronic votingBallots: electronic voting
(1) The 1992 Act is amended as follows.
(2) In section 230(2) (conduct of ballot), after “must” insert “either be registered to vote by way of an electronic ballot, or”.
(3) At the end of section 230(2A)(b) insert “, or
(c) it will be convenient for him to vote by way of an electronic ballot while on the ship or while at a place where the ship is.”(4) In subsection 230(2B)(a) for “and” substitute “or”.
(5) In subsection 230(2B)(a), after “is,” insert “or be registered to vote while on the ship, or while at a place where the ship is, by way of an electronic ballot,”.
(6) After section 230 insert—
“230A Ballots: electronic voting
(1) A trade union may use electronic voting for the purpose of a ballot under section 226 of this Act, subject to the agreement of the Certification Officer.
(2) The electronic voting system must be—
(a) designed by an organisation which is independent from the trade union, and (b) approved by the Electoral Commission.””
Lord Balfe
I am a bit lost, as I thought that we had gone past that section. Anyway, the amendment is not moved.