Baroness Hayter of Kentish Town (Lab)
My Lords, Amendment 81 deals with which organisations will be caught by the facility time provisions, as the Bill is extremely wide on this at present. According to new Section 172A(9) in Clause 12, it is any public authority, including an organisation which,
“has functions of a public nature and is funded wholly or partly from public funds”.
That does not just cover the police, health service, universities, schools, libraries, the BBC, dental surgeries and GP surgeries—doctors, nurses, receptionists and everyone—but potentially, despite the letter received yesterday from the Minister, social care and retirement homes, hospices, charities, bus companies and, on this definition, the Royal Mail and the Post Office, despite what was said earlier today. This is what the Bill says. It will include some 21,000 bodies, according to table 11 of the impact assessment, of which all but 1,000 are schools.
How are these bodies to be defined? Yesterday, the Minister wrote to my noble friend Lord Mendelsohn saying that, despite the wording of the Bill, the facility time requirements will cover only bodies defined by the ONS as being public bodies. This would therefore include housing associations, the BBC, schools, universities, the Pensions Regulator, NEST and Magnox. The latter is already caught by the exit cap in the Enterprise Bill, so now not only will employees lose some of their exit payments but they could lose the right to lay and union representation in negotiating redundancy plans and terms.
If the Government really do mean ONS-defined public authorities, how does that tally with the current wording of the Bill? It says:
“The regulations may provide, in relation to a body … that is not a public authority but has functions of a public nature and is funded wholly or partly from public funds, that the person is to be treated as a public authority for the purposes of subsection (2)”.
That does not mean just ONS-defined bodies but specifically those which are not a public authority but which have functions “of a public nature” and are funded “wholly or partly” from public funds. That is clearly ONS-plus.
I am afraid the Minister’s response on 2 February to the noble Baroness, Lady Fookes, the chair of the Delegated Powers and Regulatory Reform Committee—that,
“it has never been the Government’s intention to capture private or voluntary sector providers of contracted out public services or charitable organisations”—
simply does not hold water. That is not what the clause says, despite the Government having had plenty of time to amend the wording. Hence we have tabled Amendment 82A to be absolutely certain that charities cannot be included. Amendment 82B, in the name of my noble friend Lord Stevenson, would exclude cultural bodies, which are anyway only partially publicly funded.
In her letter, the Minister confirmed that free schools and academies—which, yes, were meant to have been promised the freedom to run themselves—would be included in this new bit of government regulation. Local authority and maintained schools of course are already required, as we heard earlier, to publish information on facility time, so I will ask her the same question that my noble friend Lord Watson asked. Can we therefore assume that the Government are now proposing that the proprietors of academies and free schools will be subject to the same level of disclosure and scrutiny, not just on facility time but on other areas of expenditure? If not, it is extraordinary that the only thing they would have to go public on is the amount of facility time, rather than any other decision they take. Or is that the only bit of transparency that the Government are going to ask academies to face?
Amendment 81 would remove new Section 172A(9), which is undoubtedly a catch-all and a dangerous power which has no place in the Bill, extending as it does government interference into independent, non-government organisations. Amendment 82 makes a similar point because, by including in the Bill organisations which are only partly funded by public money, the Government are laying extra rules on the activities of independent, privately funded bodies with their own governance structures. That goes well beyond public bodies or public authorities in the sense of local authorities and health authorities.
Indeed, we are mystified as to what organisations the provision covers and what “partly” means. Does it mean a grant covering perhaps 5% of an organisation’s funding, even if it is not defined as a public authority by the ONS? Perhaps the Minister could detail some examples of what organisations might be covered which are only partially funded by public money. It is unacceptable for the Government potentially to cap facility time in a body that they only partially fund, so we seek to exclude those bodies altogether.
The important question is: what on earth does this cover? It is no good just having some earlier minor amendments from the Government that mean that we can now put different categories into statutory instruments, when we are not clear whether the definition is just ONS-defined public authorities, public authorities or what it says in the Bill—any other organisation carrying out a public function which receives some or all of its money from public funds. I beg to move.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, I point out that if Amendment 81 were to be agreed, I could not call Amendments 82 to 82B inclusive by reason of pre-emption.
Lord Balfe (Con)
I, too, think that we need a slightly better definition of what is a body that is not a public authority that is “wholly or partly” publicly funded. The example that comes to mind is my local Tesco, which includes a pharmacy and a post office, both of which are of course in receipt of some public money. I wonder whether my noble friend will be revisiting her past by asking the local Tesco to conform. Seriously, this is a reach beyond where I think we should be going. It is becoming all encompassing, and I would like us to row back from going quite as far as the clause appears to be taking us.
Lord Tyler (LD)
I speak as a member of the Delegated Powers and Regulatory Reform Committee. This is precisely the sort of area which is inappropriate to be left to regulation, at least without clear guidance to your Lordships’ House at this stage.
Does the Minister appreciate that she is establishing a precedent here if she allows this sort of public authority creep to extend this far? The noble Baroness, Lady Hayter, mentioned transparency. I am particularly concerned at present at the way in which the Government are rowing back on freedom of information. If the Government are not to be totally inconsistent in this area, they will have to extend freedom of information to these organisations.
You cannot treat an organisation that happens to be taking public money as automatically becoming a public authority in the terms of new subsection (9) without recognising the implications. If you are asking it in one respect to be treated as a public authority in terms of facility time, why not in terms of freedom of information? I beg the Minister to recognise the point that has just been made from behind her that this is a dangerous area to leave to secondary legislation. We are already in some difficulty with the relationship between primary and secondary legislation; this is precisely the sort of area which should not be left to secondary legislation. I hope very much that she will be able to give your Lordships a clear assurance that new subsection (9) is to be reviewed in toto, not just tweaked, otherwise it establishes a considerable new extension of the designation of public authority. If they are not prepared to do that, I warn the Government that, on many sides of this House, we will see this as an opportunity to extend the requirements of freedom of information legislation.
Lord Lea of Crondall (Lab)
My Lords, it is getting late in the evening and I do not know whether we will get anywhere near the debate on check-off, but there are some similarities and some dissimilarities from this sort of question in a later clause. The Minister sent us a very courteous letter today about listing the bodies which will definitely be classed as within the public-sector umbrella on check-off. We have two timescales in which to give more thought to this; one is the longer-term timescale, naturally, between now and Report. Between now and Thursday, the go-ahead for some standardisation of which body is in which category in the public sector raises the question of terminology. The point has been made already, but I would like to put it slightly differently —that this is a game not of definitions but of looking at the Government’s criteria for their own judgment of which bodies they want to fall within scope.
Lord Balfe
The noble Lord mentioned a letter, and I understand that a letter has been placed in the Library. Could the Minister follow the good example of the noble Lord, Lord Bates? When he circulated letters, he did so directly to all the people who were involved in the debate on the Immigration Bill. When I discover that letters are in the Library, it is not exactly much help. But I thank the noble Lord for mentioning it.
Lord Lea of Crondall
I suspect that I got one because I have an amendment down in the group on check-off—I do not know. These procedural points arise, and I suspect that the problem of reaching beyond the public sector is one that really cannot be looked at without any crossover, with regard to facilities. On the other hand, it would be much better to have the debate on check-off on Thursday; then we can all have time to think about the jigsaw between them.
Lord Stevenson of Balmacara (Lab)
My Lords, I shall speak briefly to Amendment 82B, in my name. I am following the general trend of the comments here that this is really a debate around the drafting implications of what is in the Bill and in the correspondence that has been circulated. I want to do that in relation to my amendment with respect to the arts and cultural sector, because considerable concern is being expressed in those bodies about how the Bill would bite.
I came thinking that I would speak in terms of what I did not want to see in the Bill, and I was rather taken by the comments of the noble Lord, Lord Tyler, that the Bill is rather short of detail compared to where he thought it ought to be in terms of regulatory power.
I fundamentally disagree with him, but I know what he is trying to say. I think we are both saying the same thing, which is that whether it is here or in secondary legislation, this drafting does not work. If its unintended consequences are going to include bodies which by any stretch of the imagination should not be included, clearly we hope that there will be some consideration between now and later stages of the Bill.
My amendment is specifically about art and cultural bodies. I have already said that I am puzzled by why it is necessary to have any powers in the Bill that apply to them. This information could be obtained quite easily using existing powers in legislation because all the bodies that we are talking about presumably receive funds—in the case of arts and culture, largely from DCMS. Therefore, as the Minister is in DCMS she is in a very strong position to suggest that the next time the grant-in-aid letters are issued, they include a phrase which simply says, “Please will you also let us have by return the quantity of time spent by your trade union officials on facility work?”. I received similar letters in my capacity as director of BFI when I was serving there, and I know exactly how easy it is for Ministers to do that with a slip of the pen. I do not quite see the point of having to do it through cumbersome primary legislation or even extensive secondary legislation. It seems to me and to others who have spoken in this debate that these clauses are otiose—simply a rather crude grandstanding game.
I put it to the Minister that, as she must know from her role as a patron of the arts, an attender of many functions and from talking to the management—she often tweets about how she is going around the country enjoying our cultural splendours—that these bodies do not operate a classical management operation. I am not in any sense intending to be sceptical but the nature of cultural management is not the same as it might be at a major supermarket chain. We are talking about collaborative bodies working together for entertainment and professional productions which are not going to be subject to quite the same arrangements. Of course there will be health and safety and educational work by trade union officials, but the actual nature of the operations are very different across the theatres, galleries, museums and creative sector that we all want to support. In that sense, I wonder whether the Minister could find some time to meet us to talk about this sector because I know she shares an interest in it. I think there could be ways in which we could reach an accommodation on the matter she wants to see made more transparent. I do not think it is necessary to do it in the Bill. If she would agree to such a meeting I would be very grateful.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills and Department for Culture, Media and Sport (Baroness Neville-Rolfe) (Con)
I thank noble Lords for these amendments, which allow me to try to clarify on which public sector employers the regulations could impose publication requirements by virtue of Clause 12. As I mentioned, the purpose of the government amendment we agreed earlier was to provide the clarification the amendments seek. The government amendments I outlined I think go further than the concerns reflected in these opposition amendments. They also respond to the concerns voiced in the other place regarding the importance of public authorities knowing whether they will be required to publish information. I had hoped that sending a letter would help, but I am not sure it has, so let me try to respond. I say in advance that I will look at the issue again in the light of the comments that have been made this evening and the point that the noble Lord, Lord Tyler, made about delegated powers.
The first point is that since the debate in the other place the facility time regulations will now apply only to public sector employers with 50 or more employees to make sure that any burden is not placed on small employers. That will include smaller heritage institutions. In fact, this will reduce the number of employers who will be affected from the estimate which we set out in the impact assessment for this clause. Whereas some categories of public sector employer have a set definition, such as government departments, which are listed clearly on GOV.UK, there are public sector employers for which there is no such readily available definition or list.
The noble Baroness, Lady Hayter, asked who will be included in the list of public-sector employers. When determining which bodies will be required to publish information, regard was given to those bodies, as I think she said, classified by the Office for National Statistics as public sector bodies within the national accounts. We ran into the ONS, of course, when we debated the Enterprise Bill in relation to the Green Investment Bank.
We propose to include within the regulations those bodies that are funded wholly or partially from public funds, that provide functions or services of a public nature, that have more than 49 employees, as I have said, and that have at least one trade union official. I agree that,
“funded wholly or partially from public funds”,
probably needs to be the subject of my review.
An example is the definition of “public authority”, which I understand has a commonly understood meaning, but where the precise boundaries are is not clear. There are employers whose functions are of a public nature, and which are publicly funded, that may not be considered to be a public authority for other purposes. In that respect I cannot agree with the proposed use of the term in Amendment 81, as it would not capture the appropriate range of public-sector employees or provide the clarity that we need.
Amendment 82 expresses the concern that regulations would be applied to, for example, private companies receiving a small amount of public funding and, in turn, the reserve power to cap facility time in Clause 13 could then be applied to those organisations. That is not and never has been our intention, as my letter explained.
The noble Baroness, Lady Hayter, queried the position of academies. Academies are established in different ways from other publicly funded schools, but they are still publicly funded so it is right that they are accountable for how the money is spent.
Lord Kerslake (CB)
I would like to raise a question that is relevant to this debate. In doing so, I declare my interest as chair of Peabody. Peabody is a housing association that the Minister will know was classified, along with other housing associations, as a public body. The Government have rightly recognised that that was inappropriate and wrong, and are taking steps to deregulate for housing associations in order to take them away from being classified as public bodies.
I am unclear where that leaves this regulation. Would we see them as “in”, and therefore regarded for the purposes of this Bill as public bodies? In another Bill that is being taken through at the same time, we are trying very hard to get them out of public-body status.
Baroness Neville-Rolfe
I thank the noble Lord for his comments. As part of my checking up on this, I will look at that point, but my recollection is that, as he says, we are trying to get housing associations out of being public bodies, so they should not be covered for the reasons that I have already stated.
Baroness Hayter of Kentish Town
They could still be covered. New Clause 172A(9) talked about something that is not a public body by whatever definition but nevertheless is,
“funded wholly or partly from public funds”,
and,
“has functions of a public nature”.
If, as an ALMO, the housing association has taken over social housing and receives public funds, the housing association could escape. However, if that happens—of course we still do not know for sure that they will come out from the ONS, but let us assume that they do—it still fulfils the other criterion, so the housing association would still be covered.
Baroness Neville-Rolfe
It is late and I do not want to dispute the noble Baroness’s very clear logic. As I have already said, I will go away and look at this point and write. I thank the noble Lord, Lord Balfe, for his suggestion about letters. The letter was certainly meant to be sent to people who would be interested, and I can only apologise that it did not get to him today. I shall ensure that he sees it and that the follow-up letter that I have promised reaches all the appropriate nooks and crannies of the Chamber.
Amendments 82A and 82B seek to exclude charities and cultural and artistic institutions. Unfortunately, these are not terms that have definitively clear boundaries. Some publicly funded schools may have charitable status. This does not mean that the facility time of their employees is not being funded by the taxpayer, in just the same way as a school that is not classified as a charity. Equally, the Government fund institutions such as those that the noble Lord, Lord Stevenson, mentioned —arts institutions, the Tate, the British Library and the British Museum—and we are proud to do so. In such bigger examples, facility time is of course funded by the taxpayer as it is in the NHS or the Civil Service. It should therefore be held to the same level of accountability. However, I am quite happy to have a meeting to discuss it to see if we can find a way through that, although I need to establish the broad principles, as I sought to do in my letter.
Amendments 81, 82, 82A and 82B all reflect similar concerns as to the sort of employers who could be covered by the regulations. I hope that noble Lords will be reassured that we are trying to capture those employers who should be accountable and leave out those who should not. However, I am conscious that we will need to come back to this, I hope in a letter or in a meeting. In the mean time, I ask the noble Baroness to withdraw the amendment.
Baroness Hayter of Kentish Town
I thank the Minister and I hope that I heard correctly that she will review this, particularly new subsection (9). At the moment it is an absolute muddle. All that the amendments she put forward earlier do is pick and mix, but again, it would come only by statutory instrument—we would not be able to say whether we agreed with that. However, pharmacies would be covered under this, because the more than 50 employees would not be in each particular pharmacy but would be conglomerate, and they undoubtedly get public money. I still do not understand how a retail post office would not be covered by this. I am delighted that public schools might be covered; they are charities and get some public money in odd areas—this could be the first bit of regulation on that. The Minister said that it was not the intention to cover private companies and charities, but that is what the Bill says. A retirement home which is almost wholly funded by public money, albeit with top-up from some fee-paying residents, and which is completely independent, either run by a social care company or by a charity, would be covered by this. Therefore it is important that we have absolute clarity. I will be very happy to have a dialogue before Report; ideally, the Government could perhaps bring forward their own amendment to meet the points we are raising. However, for the moment, I beg leave to withdraw the amendment.
Lord Kerslake
“Review: cost of facility time
(1) The Secretary of State must conduct a review of the cost of facility time to public sector employers.
(2) The review shall include but not be limited to—
(a) recording and publishing time taken for facilities provided by union representatives;(b) the amount of money used for facility time, including paid time away from work;(c) the amount of hours union representatives spend carrying out representative work outside of their working hours;(d) the percentage of money spent on facility time taken up with different trade union activities;(e) whether the facility time provided is sufficient for union representatives to perform their functions;(f) the benefits which may accrue to the taxpayer and wider public from supporting the work of trade union representatives in the public sector;(g) a comprehensive cost-benefit analysis of the role of union representatives in the public sector;(h) the costs to a public sector employer of monitoring and publishing data on facility time; and(i) analysis and comparisons of employment tribunal cases, dismissal rates, voluntary exit rates and workplace related injuries within unionised and non-unionised workplaces.”
Lord Kerslake
I will say a few very brief words; I apologise for detaining the House. I tabled this amendment because I feel that we are conducting the debate about the Bill in a fact-free and certainly analysis-free zone. It felt to me that before action is taken we should have a proper analysis, not just of the costs but the benefits of trade union facilities, if nothing else to properly inform decisions that might be taken under delegated powers. It is very hard to see how government can make those decisions without this proper analysis of costs, benefits and their relationship. That is why I have suggested what I hope is a reasonable amendment, that a piece of work be conducted by the Government on this issue. I beg to move.
Lord Harris of Haringey (Lab)
My Lords, this is a helpful and useful amendment. It would be even more helpful had the noble Lord, Lord Kerslake, suggested that Clause 13—and possibly Clause 12 as well—could not come into force until such time as this review had been completed. The whole issue about having proper information and a proper background to what we are talking about here is clearly critical. The noble Lord, Lord King, who has just rejoined us, and the noble Lord, Lord Deben, spoke movingly about the importance of facility time, both as regards health and safety but more generally as regards good industrial relations. The implication from their speeches was that it was fine to have transparency on those issues but, by implication, it would be wrong to try to impose a limit if an agreement had been reached locally.
The information proposed in the amendment, which would probably be of the nature of academic research, would provide your Lordships with a proper background against which to consider these matters. Obviously it might take longer to compile than between now and Report, or indeed between now and Third Reading, but if these two clauses were removed from the Bill, the Government could bring them back in a year’s time having had the benefit of this research.
Baroness Neville-Rolfe
This amendment, which I received late last night from the noble Lord, Lord Kerslake, seeks to require a Secretary of State to conduct a review of facility time, involving the collection of a significant amount of additional data and estimation. The list is long and includes a cost-benefit analysis of facility time, as well as data around tribunal cases, dismissal cases, voluntary exit rates and workplace injuries. Some of the information in the noble Lord’s list would be available through the transparency requirements proposed in the Bill but much of it would not. My concern is that the collection of this long list of data would create a significant burden on both employers and government departments.
Of course, the Government would consider several of these elements—for example, the total cost and total hours used for facility time—if the reserve powers were ever required, although it is by no means certain that they ever would be. We would consider all relevant—
Lord Mendelsohn (Lab)
I am grateful to the Minister for giving way. This is an interesting point and it is important to look at the costs and benefits. Great store has been set on the benefits attributable to opening up transparency in this measure. The impact assessment talks about the figures, which have been much paraded, relating to the benefits for the Civil Service of transparency on facilities. It explicitly says:
“While it is not possible to prove how much of this fall of 0.19 percentage points of the Civil Service pay bill … is directly attributable to the increased transparency resulting from reporting time spent, this increased transparency is likely to be a key factor accounting for at least some of the reduction”.
If there is no clear evidence that there are significant benefits, I think that that speaks ever more clearly for the point that the noble Lord, Lord Kerslake, makes in his amendment. I do not think that it has been established that there are clear benefits to it.
Baroness Neville-Rolfe
The noble Lord makes a fair point. As I have said, we would consider all relevant factors before using the reserve powers, and our impact assessment addresses some of those. If you are looking to use a reserve power, you obviously look at both sides of the argument.
I have not had time to do much about this amendment and I am not promising a concession but I would be very happy to meet the noble Lord and other interested noble Lords to discuss further the concerns around the amendment. In the mean time, I ask the noble Lord to withdraw the amendment.
Lord Kerslake
I apologise for the lateness in tabling this amendment and therefore for the short amount of time that the Minister has had to consider it. I would be very happy to take up her offer of a meeting to discuss it.
There is indeed a cost attached to the amendment but, for me, it is a cost of good government: when decisions are made on issues of this importance, the information, the facts, the analysis and the benefits should be available. In effect we are going to be taking decisions with only a partial picture of the impact, and what is proposed in the amendment would be a way of properly securing a full picture.
Baroness Neville-Rolfe
I would just add that a lot of the provisions in the Bill reflect clear manifesto commitments. We have sought to make an assessment, although it is not perfect in every respect. I am obviously very happy to debate this matter further—that is what Committee stage is always about—but I think that some of the provisions that we have put forward have merit. You cannot always do every bit of cost-benefit analysis, although everybody in the Committee knows that I am probably keener on that than any other Minister in the Government.
Lord Kerslake
I thank the Minister and beg leave to withdraw the amendment.
“(2A) No regulation may be made under subsection (1) which has the effect of altering, in respect of any of the matters to which the reserve powers may be directed, any provision of a contract of employment or a collective agreement, or of limiting an employer’s discretion as to the contents of contracts of employment or collective agreements to which the employer is a party.”
Baroness Hayter of Kentish Town
My Lords, this amendment, tabled in my name and that of my noble friends Lord Mendelsohn and Lord Collins, comes to the crunch that we have been leading up to in our discussions on Clause 12. Clause 13 possibly undermines the rights of working people to be represented at work via a reserve power that allows Ministers—not employers, but government Ministers—to cap the amount of time that union reps can spend on employer-funded trade union work, regardless of the needs of the organisation, existing collective agreements, individual contracts of employment or even the wishes of the employing organisation. So not only does Clause 13 give Ministers a blank cheque, as there is no indication of whether they would cap facility time at one day, 52 days or 104 days a year, but there is no clarity as to what circumstances would give rise to the introduction of this power. Would it be because a general election was coming up? Would it be because a new Secretary of State wanted to burnish their credentials? It is absolutely unclear what would trigger it.
Despite the earlier government amendments, we have no indication of whether if a whole category of employers was to be covered—such as post offices, hospices or care homes—this would involve the Minister making a specific case for each of those sectors. Would the provision be time-limited? Would it be for ever or just to the end of the Parliament? Would it follow any consultation, either with the relevant employers or, indeed, with their trade unions? It would simply allow—and I have to use the word—dictatorial government with a sweep of the pen, given that we are told we must not vote against statutory instruments in this House, to interfere with hundreds of workplaces at the whim of a Minister, limiting lay officials’ facilities in an arm’s-length or, possibly, independent organisation. I do not think anyone accepts that this will do.
The Equality and Human Rights Commission has considered Clause 13’s open-ended powers to make this wide-ranging amendment to primary legislation and said that it could,
“be used to introduce disproportionate interference to freedom of association rights under Article 11”,
of the ECHR. It continued:
“The power to impose contractual changes could also amount to an unjustified and disproportionate restriction of the right to respect for possessions under Article 1, Protocol 1”.
Imposing these new restrictions on rights for union reps is effectively rewriting collective agreements and contracts of employment which have been voluntarily agreed by unions and employers, and is in contradiction of other legislative rights. It undermines Section 168 of the Trade Union and Labour Relations (Consolidation) Act 1992—I am not sure whether that was one from the noble Lord, Lord King—which allows for learning reps. It also undermines Section 10 of the Employment Relations Act 1999, which gives individuals the right to be accompanied—nearly always, of course, by lay reps—in grievance and disciplinary hearings. Furthermore, it appears to break health and safety duties, as we have heard already, under regulations under Section 2 of the Health and Safety at Work etc. Act 1974.
Clause 13 allows the Government to use as yet unseen secondary legislation to put through restrictions or, indeed, to repeal rights contained in primary legislation. The cap could also conflict with EU law, which protects the rights of health and safety reps to paid time off for their training, as well as their duties, and the rights of trade union reps during consultation on collective redundancies and outsourcing under TUPE rights, and information and consultation rights. Furthermore, as I have said, by introducing such a cap, the Government would be breaking existing voluntary agreements between employers and their workforce. In the case of schools, many local facility agreements have been negotiated on the basis of the Burgundy Book agreement on facilities for reps of recognised teachers’ associations. Surely, any proposed changes to facility time agreements, including the funding of them, would have to be the subject of negotiations between the employer and unions. It is really not something for an outside Minister to decide.
Lord Beecham (Lab)
My Lords, I will speak to Amendment 90A in my name and that of my noble friend Lord Harris, and to the amendment moved by my noble friend Lady Hayter. I will not reiterate anything in relation to Amendment 90A that I have already referred to in the previous amendments to which I spoke about the position of local authorities, the GLA and the NHS, except to say this. Why are the Government seeking powers to explicitly control one area of local authority expenditure—and by definition a very small percentage, whatever view one takes of it—out of all the functions of local government? What is it that has so concerned the Government that they are taking this quite exceptional course? I cannot see any evidence of such a serious issue. When one thinks of other areas of public policy where things occasionally go wrong, in local government or, indeed, in central government or the health service, where is the equivalent penal exercise that this provision seeks to impose?
Having said that, I revert to the provisions of Clause 13 itself, and I entirely endorse what my noble friend said about the clause. It strikes me as extraordinary that the Government should seek to intervene in this way. The Explanatory Notes, for example, refer to the fact that:
“The reserve powers may be exercised so as to limit the paid time off taken by … trade union representatives … to a percentage of the representatives’ working time. For example, if a public sector employer employs a number of trade union representatives who spend 100% of their working time on facility time, the cap may limit the time spent by such trade union representatives to 50% of the working time”.
What criteria would the Government apply in those circumstances? Would it be related to the number of employees involved and the number of trade union representatives? Suppose there is only one trade union representative in a particular place? I referred to the fact that Newcastle schools employed 1.6 people, but it may be one full-time representative. Will the Government say in that situation that only 50% would be permitted for that one person? Or will they say that 50% of the total can be found, but that means that no individual can spend 100% of his time? Two people could spend 50% of their time, or will that not be permitted?
What are the Government so concerned about in this particular area of public policy that they feel they have to take the power to prescribe in such detail as opposed to almost anything else either in the employment field of local government or the policy field? An extraordinary amount of attention is being paid to what, while it is certainly not an unimportant service, is one that still involves few people and a very small amount of money. That is what feeds the suspicion of some of us that the Government are bent on doing more than just ensuring an economical approach to the matter; there is a different agenda here to which Members of the Committee have referred many times today.
I hope the noble Baroness can give us a better clarification of the objectives here and a better reason for interfering in the rights of bodies which, I repeat, are accountable anyway. They are accountable to their electorates and are overseen by audit committees, and very often the local media will be keen to investigate any alleged difficulties. Why is it that Whitehall assumes that it should be prescriptive about the activities of hundreds of local authorities which have as legitimate an electoral mandate, if not more, than those that seek to oppose these restrictions?
Lord Kerslake
My Lords, I shall speak in support of Amendment 90A. If Clause 12 was about transparency, for which I have a great deal of sympathy, Clause 13 is essentially about compulsion—top-down “Whitehall knows best” micro-management. That is what it adds up to. If transparency has the desired effect, which the Government argue it will have, it is difficult to conceive of why there is a need for Clause 13. If this was seen as such an unacceptable expenditure in Sheffield, Doncaster or Brighton, the electorates would be able to make their decisions accordingly.
Let us take first the example we have just heard about from the noble Lord, Lord Beecham. There are arguments in favour of full-time trade union officials and arguments in favour of part-time ones. I have worked in different organisations with different models. What I would never presume to know is which one is right for any particular organisation, and I cannot conceive of circumstances in which the Government would know the right model. The second point I would like to make is that the requirements in relation to facility time would not vary just between organisation and organisation; they will vary in time as well. If a local authority is going through a major restructuring, it is perfectly reasonable—I have done this—to agree to extra time for trade unions in order to enable them to play their part fully in that change. If a cap is introduced, flexibility in the process is taken away.
It is not clear whether Clause 13 will apply to individual public bodies, individual local authorities or groups of local authorities. It seems to allow for all possibilities, so it would be interesting to hear from the Minister which she thinks it would be. But if we are talking about groups of local authorities, you will almost certainly get it wrong in either direction. If the cap is set high then people will not unreasonably take it as being the marker that the Government think is appropriate. If the cap is set too low, you will undermine the effectiveness of negotiations and the proper running of affairs in a local authority. All of this adds up in my mind to an example of centrist government at its very worst and I think that it should be dropped from the Bill. At the very least, local authorities should be given the flexibility to make this decision for themselves. If we believe that they are capable of leading economic development, running social care and being responsible for developing new housing supply, we must surely think that they are capable of deciding what the right level of trade union facilities is for them.
Lord Harris of Haringey
My Lords, we have already spent some time during the course of today’s Committee looking at the value of facility time and I do not intend to rehearse any of those arguments. However, when we were talking about the so-called transparency clause, the Minister told us that this is about a reserve power which she assumed or hoped would never be needed. So the question is this: why are we writing into this Bill now something for which there is so far a complete lack of an evidence base and a complete lack of clarity as regards its extent or how it would be applied? We have no information on how discerning it is. Will the Minister be sitting in her office, deciding whether the time-off arrangements for facility time in the Newcastle parks department should be this number of employees for this number of hours, as opposed to those working on social care in Newcastle, or those who might be doing similar functions in the London Borough of Haringey? How exactly is this supposed to be done? If it is not the Minister, in whom we have absolute faith, how can her officials make those discernment judgments between the different local authorities or organisations concerned?
Lord Balfe
May I add to the general misery of the Minister? This clause really is far too sweeping. Whatever Bill it appears in, to my mind it extends the power of Ministers against the parliamentary officials by a far wider margin than can possibly be justified. The clause contains the words:
“If a Minister of the Crown considers it appropriate to do so”.
You can consider all sorts of things “appropriate” and then produce an SI that cannot be voted down in this House. It gives far too much power.
We already gave, in the previous clause, quite extensive powers of publication—probably more than many people would say were necessary, but there are certainly wide powers. The meaning of the clause is now, “If the Minister doesn’t like the information they’ve got, they can then proceed in detail to intervene in any public body”. That is just not good and acceptable public administration. I am not speaking now about localism or anything: it is not the way you should run a public administration.
The way the clause develops gives the Minister carte blanche to do virtually anything. They can ensure that,
“in each period specified by the regulations, the percentage of the working time of any relevant union official”—
they can say, “Let’s have a list of your union officials”; which ones are relevant?—
“of an employer that is taken as paid facility time does not exceed a percentage”.
Is the decision made in Whitehall? The noble Lord has already made the point about Newcastle and the parks department. This intervention is way beyond what is appropriate, acceptable or sensible. If you try to implement the regulations, you will immediately find that there are all sorts of extenuating circumstances. Given the need for publication, public bodies will not just sit down and roll over when the Government come along and say that elected or appointed officials in the health service or in local government cannot run a single unit of staff. This really goes far further than is sensible. I seriously urge the Minister to talk to her friends about withdrawing this unnecessary and, frankly, provocative clause.
Lord Oates (LD)
My Lords, I fully agree with every word that the noble Lord, Lord Balfe, said. On reading Clause 13, I became worried about the Conservative Party—probably for the first time in my life—and about what has happened to the people in the Conservative Party, certainly since we were in coalition with them. I remember that they then believed that regulations were in general anathema and they decried state interest. Indeed, they believed in that to such an extent that at an early point in the coalition I remember that Conservative special advisers insisted that we removed a regulation relating to a requirement for children’s nightwear to be fire resistant, so appalled were they by the burden of state regulation that that put upon manufacturers. What has happened to that stance and to the belief in localism and pushing power from Whitehall down to towns, cities, schools and hospitals? With every clause in the Bill that we discuss, we see regulation upon regulation and overburdensome bureaucracy upon bureaucracy.
This clause is most extraordinary. The Government’s arrogance is breath-taking—a Government who, as the noble Lord, Lord Beecham, pointed out, would assume to themselves the power to determine these matters in relation to the parks department in Newcastle and to local authorities up and down the land. It is extraordinary that a Minister of the Crown can, according to new subsection (2)(b), make regulations,
“containing any provision that the Minister considers appropriate for one or both of the following purposes”.
This includes determining that,
“the working time of any relevant union official of an employer that is taken as paid facility time does not exceed a percentage that is so specified”.
It is simply extraordinary that any Government should suggest doing such a thing.
In our previous discussion on Clause 12, the Minister said that the intention of gathering all this information on facility time was not at all in order to use the reserve powers in Clause 13 to cap and restrict it. I have no reason to doubt the Minister’s sincerity but I am afraid that the political architects of this Bill in the Treasury—because that is where they are—have no such reticence. That is exactly why this clause is in the Bill, because the whole purpose of the Bill is to stamp down on trade unions and the opposition Labour Party. That is what it is all about. We know that from our time in the coalition because they tried to push this on us at least two or three times at that point.
This sort of clause should be the dream of every bureaucrat and state centralist and the nightmare of every Conservative and democrat. I hope that the Minister and the Government will think again.
Lord MacKenzie of Culkein (Lab)
My Lords, given the lateness of the hour, I will not say all the things I was going to. Most of them have already been said, perhaps more expertly than I could. I want to speak about the health service, and about Amendment 90A. I know a little bit about the health service. I started life as a nurse, involved in my local branch. I eventually became a senior official and general secretary of a health service union. Many years ago, in a new district general hospital, where we formed a branch of over 300 members—largely nurses—we were first regarded by management as some sort of devil incarnate. That mood changed very quickly when they realised that they needed staff support to get a transition from the old healthcare into the brand new DGH. Very quickly, long before it became fashionable, one of our branch officials was given facility time. It was not me: I was a theatre nurse and it was not suitable for me to have that time, but I did plenty when I was off duty.
Given my experience over the years, it is difficult to see where the Government are now going with Clause 13. There is no evidence whatever to back up the contention that the taxpayer is lying awake at night worrying about Staff Nurse Smith from Unison or the RCN or Dietician Jones from the British Dietetic Association having some facility time. Sometimes I think that things have not moved on very far. Recently, a nurse told me that she spoke to a manager about her concerns with an issue bordering on bullying. That manager was quite clear. He said, “I do not like clypes”. Clypes is not a word in my vocabulary, but I gather it is Lowland Scots vernacular for a teller of tales, a sneak or an informer. Clearly, one manager north of the border has not had the post Mid Staffordshire situation imprinted on his mind. That is why we still need unions and why we need people to undertake union duties: to represent a nurse who is now afraid of repercussions and who will, in all probability, not dare to speak out unsupported again. That is why we need sensible facility time.
The reality is that, in the health service, we all support high-quality patient care, but we need that to be cost effective. We need to find ways to increase productivity and, at the same time, improve outcomes. That is a lot of horses to ride at the same time. Most human resources people working in healthcare would acknowledge that if they are to take staff with them on the road ahead, whatever the future holds for the service, the staff have to be willing and engaged. All the health service unions invest a lot of money in training union stewards and representatives. We invest in quality training in health and safety skills, which is extremely important in the multiple practice environments of hospitals. As we heard a number of times today, we invest in training learning representatives. All of that helps to have a more confident staff.
Does the Minister—or the Government—really think that nurses and other staff representatives to whom we have given high-quality training are sitting around planning strikes and mayhem? Of course the Minister does not believe that. So will she acknowledge what really happens: that staff sides in NHS trusts try very hard to have sensible working relationships with management? One only has to look at the series of reports from the Social Partnership Forum to see what good work goes on. I can commend to her those from Guy’s and St Thomas’, University Hospital Birmingham NHS Trust and many others, not least those many dealing with the outcomes of the Francis report into Mid Staffordshire. Why do the Government want to damage that? Why do they need to take powers to limit trade union facility time? Is it really going to be a position—as has been suggested—where a Minister looks at figures supplied by a health trust or another employer, about which he or she has no detailed knowledge, and instructs that authority to cap facility time to some fraction of its pay bill? If so, we are going to make life much more difficult for the health service than it needs to be. Research has shown that, far from the costs alleged in the impact assessment, there are actual savings to be made by having union representatives in the workplace.
Lord King of Bridgwater (Con)
My Lords, as I said in the debate on Clause 12, I have my concerns about Clause 13. I am grateful to the noble Baroness, Lady Hayter, and, once again, to the noble Lord, Lord Harris, for making part of the case that I want to make, which is that there are all sorts of reasons why it would be mad to use this power.
The noble Lord, Lord Beecham, made the point very well. We have made it clear in Clause 12 that what we really believe in is transparency. We are not frightened of transparency, and we are not frightened of standing up for what we believe is right in this respect and what we believe is good for union relations. In that circumstance, it would be a defeat for transparency if we found that the powers in Clause 13 needed to be used. But then I think: could I conceive that it could never happen? Those of us who have been around in some of these industrial and other areas know that a relationship that has been established over a long time—perhaps between a chairman and a local trade union—can incite very real criticism when it is in the public domain but people feel incapable of moving on it. It may be in the interests of that organisation, whichever of the publicly funded bodies it may be, for someone to resolve the issue.
What nobody has mentioned is that it is not—if I may say so, with great respect to the noble Lord, Lord Kerslake—about whether Whitehall knows best. It will be, in the end, about whether Parliament knows best. The most important part of this clause is that for a Minister to try to impose this power, he must carry an affirmative order in each House. Just consider yourself as a Minister, deciding whether you will act in some area that will excite all the criticisms so well made from the opposition Benches, and consider why it would be so unwise.
As anyone who has had to deal with the business managers will know—and I am standing not very far away from the Captain of the Gentlemen-at-Arms—the business managers say, “We have more than enough business anyway in both Houses and why on earth do you want to bring this order?”. It is not just the Opposition who oppose half the business that the Government or individual Ministers want to bring forward; it is very often the business managers on your own side who say, “We are far too busy. This can’t be the most important thing. Can’t it be sorted out in any other way?”.
I agree with everything that has been said. The noble Lord, Lord Beecham, talked about local government. If you get transparency on this issue in local government, which already exists, as we know, it is not going to be applied against an individual local authority. I cannot see that ever being applied. But there could be another public body that becomes a public embarrassment, where it is known publicly, as we do know, that in certain areas significant public money can be wasted, and then people will turn to the Government and to Parliament and say, “What are you going to do about this? Are you powerless to prevent this situation continuing?”.
In those circumstances, I can see a case for Clause 13 but, if I may say so—not terribly helpfully to my noble friend the Minister—I find it completely unreadable. That was always one of the problems with the parliamentary draftsmen. I understand what the point is but somebody ought to have a jolly good look and see whether we can deal with one or two of the points that have been picked out by the Opposition, absolutely rightly—the odd little details where some draftsman has got carried away with what the individual details are. That needs to be looked at. That is a singularly unhelpful comment and will put Report stage back, I expect. There is a case for Clause 13 but, as I say, the chances of it actually being used, for all the reasons that have been given, are pretty minuscule. However, I would not rule out the need for it and on that basis I would support it.
Lord Beecham
Can I take it that the noble Lord is in favour of the House retaining its right to vote on affirmative resolutions?
Lord Kerslake
If we are going to give powers to a Minister for every inconceivable or almost inconceivable circumstance that might just possibly happen, we will give a huge amount of power to Ministers in the future.
Lord King of Bridgwater
I am so sorry, could the noble Lord repeat that comment?
Lord Kerslake
The noble Lord’s suggestion is that we should keep this clause in because it is very unlikely that it will ever need to be used, but not impossible. If that is the principle on which we put things into Bills, we will have some very big Bills in the future. Surely if we were in that situation, it would be open to the Government, as has already been said, to come forward with new legislation.
Lord King of Bridgwater
I am afraid that I have to keep my back to the noble Lord; I am not allowed to turn around and address him, but I say to him that absolutely, in these circumstances—and if I may say so, he is a greatly distinguished public servant—this is a very important role for Parliament. Parliament has to pass this and no Minister is going to stand up and look a fool in front of either House by going through the procedure of making the case for what is an exceptional power, which would be exceptionally used in some extreme case. But in the end for the Minister to say, “I’m terribly sorry, it’s an outrage, it’s an abuse of public money but there is no way we can do anything about it” would be quite unacceptable.
Baroness Neville-Rolfe
My Lords, I know this has been an emotional debate but I believe strongly that the power of sunlight needs to be introduced to facility time in the wider public sector. On the back of important manifesto promises, this and the back-up power that we debated in the previous group of amendments was of course accepted without amendment in the other place, despite the modest increase in regulation they represent. As my noble friend Lord King said, to use the power, we would have to carry an affirmative order in both Houses.
I set out in the debate on the previous clauses the reasons why the Bill introduces requirements on public sector employers to publish information on facility time. It will be for public sector employers, not the Government, to manage the amount of time, if efficiencies exist, having had regard to the information that is published under Clause 12. However, it is only fair to the taxpayer that a reserve power exists should employers choose not to limit facility time to a reasonable amount.
Contrary to much of what we have heard, Clause 13 does not seek to ban facility time. That is a misconception that has been repeated, perhaps outside the Chamber, but it is not our intention. I say on the record that it is very much a power of last resort. Only if publication and the proper monitoring and recording that follow do not achieve the aim of having reasonable levels of facility time will it be necessary to consider the imposition of a cap.
Lord Mendelsohn
I am just troubled by this notion of reasonable time. I have one particular question, although the Minister will probably not be in a position to answer at this stage and may have to go away and look at it. The Sentencing Council’s Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline establishes a very high level of fines for breaches of it, which apply to the public sector as well. Removing facility time which would remove any health and safety cover which currently exists would put any such offence into the high culpability level. That would engender fines for any organisation with a turnover of over £50 million up to a level of £6 million; for anything over £1 billion, it would be substantially more, now that we have had case law from the Supreme Court. By introducing this power over facility time, have the Government not considered that they are risking a huge amount for other public bodies, and even causing difficulties for Ministers themselves? By imposing restrictions on the health and safety cover or arrangements that have previously been available, are they not changing the terms here? Have the Government taken advice on how this will affect the application of these relatively new sentencing guidelines, and would she consider doing that if she has not already?
Baroness Neville-Rolfe
I will certainly look at the sentencing guidelines. However, we looked at health and safety under the last amendment and noted that health and safety duties applied notwithstanding what we are discussing here.
It is particularly important to monitor the cost of time taken for trade union activities, for which there is no legal right to paid time off work, unlike union duties, for which reasonable paid time off is a statutory right. I think I already said, in response to the noble Lord, Lord Kerslake, that we will look very carefully before using the back-up power. Points were of course made about what cap might be appropriate and indeed the point was made, I think by the noble Lord, Lord Harris, about the lapse of time before the power might be used.
The noble Baroness, Lady Hayter, argued that the cap was open-ended and could interfere, I think, with the freedom of association rights under Article 11. If the need arose to use the reserve power, it would be exercised in a way that took full account of Article 11 and relevant ILO conventions. It is an entirely legitimate aim for the interests of trade unions and their representatives to be balanced against those of taxpayers, who ultimately fund the use of facility time. In addition, regulations under this power can be made subject to exceptions where necessary—for example, we sometimes do that to ensure compliance with EU obligations—and these regulations are subject, as has been said, to affirmative resolution.
The noble Baroness also mentioned the power to impose contractual changes. I think she was concerned about the right to respect for possessions under A1P1. Any impact on existing contractual entitlements will apply only prospectively; that is, from the date when any regulations are brought into force under the clause. We respectfully suggest that A1P1 has no application here. It protects existing possessions; it does not extend to a right to a guaranteed income in future.
The noble Baroness also asked about the impact assessment and the basis of the £100 million figure. As she may know, the figures are based on the Civil Service experience, where these transparency measures reduced the expenditure on facility time to 0.07% of the pay bill from a previous figure of 0.26%. The National Audit Office reports that the annual pay bill for the public sector, excluding the Civil Service, is £153 billion, so a reduction similar to that seen in the Civil Service would provide savings of more than £100 million. Of course, this can only be an estimate, and we are introducing the publication requirement precisely because there is no up-to-date information—I accept the noble Baroness’s point—on the cost to the taxpayer of facility time subsidies.
Amendment 90A would remove local authorities in England, the GLA and the NHS from the scope of the reserve powers. More transparency from those bodies has revealed that some local authorities spend twice the percentage of their pay bill on facility time as others, and where such discrepancies are revealed, taxpayers deserve that, ultimately, there should be a power in place for such spending to be managed.
Lord Oates
Pursuant to that point, can the Minister tell us, specifically with regard to local authorities, why she believes that it is for the Government in Whitehall to interfere in the decisions made by democratically elected local authorities? As the noble Lord, Lord King, pointed out, if we have transparency, that will presumably bring pressure to bear. It is for local authorities, which are, in my experience, much more responsive than central government, to react to it. On what basis would this extraordinary power be used against a local authority?
Baroness Neville-Rolfe
I agree with the noble Lord that the changes we propose promote transparency and that the power of transparency should lead to good decisions, be it at national or local organisational level. That is common ground. We believe that a back-up power, even if it is never used—I remember debating this very issue in respect of other Bills before the House with those on the Benches opposite—is necessary in this area. It is a power of last resort. It applies to local authorities, where there may be an example of the sort that my noble friend Lord King talked about, in the same way as in other areas.
The situation is similar in the NHS, and I was so glad to hear about the NHS from the noble Lord, Lord MacKenzie of Culkein. It is a public sector employer, so obviously the taxpayer funds facility time. It is the largest employer group in the public sector in the UK. I gather that it is now number five in the world: it has sunk beneath the US and the Chinese military, Walmart and McDonald’s. Obviously, it is a very large and important organisation. Like the Royal College of Nursing, we recognise the value of facility time in the NHS and do not for a moment suggest that it is simply a drain on the public purse. We do not seek to ban it, but where inefficiencies are revealed in part of the NHS, for example, the reserve power should be there in the same way as for a school or a local council.
Lord Harris of Haringey
I thought that within the NHS there were all these bodies, such as Monitor, precisely to make sure that things like this work. Why is an additional power needed? While I am interrupting the Minister, why have this Government in a number of other areas said that it is not appropriate for Ministers to be able to intervene? I think, for example—it is the presence of the Government Chief Whip that makes me think of this—of police and crime commissioners, where the very suggestion that the Home Office could do anything to interfere with them was rejected on the basis that they were democratically accountable. Local authorities are democratically accountable, so why have a power in this very narrow area? In case she has forgotten this point, surely there are other bodies in the health service that can intervene, so this power is unnecessary.
Baroness Neville-Rolfe
I know what the noble Lord has said. I think that I have probably said as much as I can on this issue this evening. I shall not seek to weary the House with further detail on the final amendments. The logic is that the cap should apply to all types of facility time, whatever legislation the rights are granted under and whatever category under which they fall. In the public sector, where the employer pays for their employee to take time off to undertake facility time, it is in no way less of a cost to the taxpayer however the facility time is categorised and however important it is.
We have had a good discussion today, but I am not persuaded by the tenor of the argument. I ask the noble Baroness to withdraw her amendment this evening.
Baroness Hayter of Kentish Town
Let us just get one thing straight: this is not a taxpayer subsidy. The taxpayer pays for holiday pay as well. Are we going to have a government Minister talking about that with regard to all those organisations, not just local government —we have already agreed that it may be charities or all sorts of other functions? They decide their own holiday pay, and the taxpayer pays for that, but facility time is somehow really different.
I shall not go through all the contributions, but I want to say three things. First, on the affirmative procedure, Parliament knows best—I think it was the noble Lord, Lord King, who mentioned that. But the problem is, as the Minister says, that this legislation went through the Commons without any difficulty, which is how an affirmative resolution would go through the Commons. When the legislation comes here, the only place where we can say stop, we have the noble Lord, Lord Strathclyde, saying that we must not overturn a statutory instrument—“I’ll do another report, we’ll clip your wings or we’ll put in another 100 Tory Peers”. What was the other thing he was going to do? Oh yes, he might suspend us, give us a permanent holiday. The idea that our safeguard is that we can overturn a statutory instrument here is no safeguard.
The Minister has said that this is a provision of last resort, but she has still not explained the criteria on which that last resort could be taken. The example given by the noble Lord, Lord King, is really frightening —if one thing has gone bad in one place, which could be a care home, or something, we will have the Dangerous Dogs Act again. Because something is really bad in one place and the public have got to know about it, therefore we will have a Minister saying that we have to do something about it so let us have a statutory instrument quickly, and a whole category will be caught because of one example of something going wrong. The real issue is whether it is about, as the noble Lord, Lord King, says, one or two or three examples of where this is going wrong, or is it some other reason that we have not heard from the Minister? What criteria would bring in this power of last resort? This is a question for management and local authorities, or whoever the employer will be—Magnox, or all those other organisations that we have been through. It is really not for Ministers. We will return to this one, but in the mean time I beg leave to withdraw the amendment.
Baroness Neville-Rolfe
“( ) make provision in relation to any or all of the employers in relation to which the reserve powers are exercisable;“( ) make different provision for different employers or different categories of employer;”